FY2024 Grants to Highest State Courts to Improve Guardianship

Background Guardianships and conservatorships (hereinafter referred to as “guardianships”) are irrefutably one of the most impactful legal proceedings because vulnerable adults, or “protected persons,” lose their right to make fundamental life choices. Court-appointed guardians and conservators (hereinafter referred to as “guardians”) – who may be family members, friends, professionals, private non-profit or for-profit agencies, or public agencies – are legally imbued with authority to make a wide array of decisions that govern a protected person’s life, often for an infinite amount of time. This substantial authority means a protected person loses basic human rights, such as the right to make decisions about where and how they live, vote, marry, conduct relationships, buy or sell real estate, make decisions about their medical care or finances, or enter into other contractual agreements. State law defines guardianship systems, and state courts manage the system. Each guardianship system includes numerous steps and proceedings, such as determining a protected person’s ability to make decisions, appointing the guardian, monitoring the guardianship, removing/reappointing a guardian, and ending the guardianship. These steps often exclude, either by rule or practice, the proposed protected person from participating in the proceedings. State law generally requires that guardianships (1) be an option of last resort after less-restrictive options have been considered, (2) limit the guardian’s authority to necessary powers, and (3) be regularly monitored for abuse and accountability. [i] However, guardianship laws, policies, and procedures are not always consistently enforced or followed within or across states. Additionally, the various steps and moving parts create opportunities for fraud and abuse of the system and the protected person. States often lack the capacity or processes in place to adequately detect and address fraud and abuse and other diminution of the rights of protected persons. While many guardians exercise their duty honorably, others abuse the guardianship system, causing significant financial, physical, and other harms to individuals in their care. Further, lesser-restrictive options for ensuring decision supports and protection of an adult’s personal and property interests are often not considered. Exploitation by guardians and conservators has received significant state and national attention, yet it is also widely acknowledged that more needs to be done to reform guardianship and protect those under guardianships from maltreatment. [ii] In November 2016, the U.S. Government Accountability Office (GAO) released a report titled “Elder Abuse: The Extent of Abuse by Guardians is Unknown, but Some Measures Exist to Help Protect Older Adults,” and the U.S. Senate Special Committee on Aging held hearings called “Trust Betrayed: Financial Abuse of Older Americans by Guardians and Others in Power.” Yet although recognized as a serious and pervasive problem, much remains unknown about the extent of the problem and effective methods to monitor guardianships and prevent guardianship abuse. In 2017, the Elder Justice Prevention and Prosecution Act amended the Elder Justice Act to add Section 2042(c)(2)(E), which authorizes grants to the highest state courts to better understand and remedy these issues. In 2018, the U.S. Senate Special Committee on Aging conducted a study on guardianship and recommended several key areas for reform, including improving: oversight of guardians and guardianship arrangements, alternatives to guardianship and restoration of rights, and data collection. [iii] Most recently, in 2022, the National Institute of Justice published a study titled “Environmental Scan of Guardianship Abuse and Fraud.” The study reiterated the inability determine the scope and prevalence of abuse by guardians, primarily due to a substantial lack of guardianship data. [iv]. Current Challenges Despite the recognized need for change, there are several challenges to guardianship reform, including the significant differences between court and state practices, variations in the way courts collect data, the inherent complexity of guardianship cases, and the lack of funding to improve processes. [v, vi]. Gaps in knowledge and practice, as well, have been noted consistently across multiple efforts as a barrier to improvement. For example, multiple GAO studies conducted between 2004 and 2016 examined issues in guardianship systems, including abuse by guardians, and existing supports in place to protect older adults [vii]. In particular, the 2016 study noted a lack of knowledge about the extent of elder abuse by guardians due to limited data on key factors, such as the number of guardians appointed to serve older adults at a given time, the number of older adults in guardianships, and the number of cases involving elder abuse by a guardian. [viii] Further, the 2022 National Institute of Justice study identified numerous challenges in state data systems including inaccessible information (i.e., data “trapped” in case files), dated or non-centralized case management systems, lack of resources and burdens on courts, coding complications and privacy concerns, and reluctance to change. [ix]. Progress Progress is being made, notwithstanding the multifaceted issues and the complex systems that differ by state. Through grantmaking, education, and stakeholder engagement and collaboration with aging and disability networks, ACL has been at the forefront of guardianship reform efforts for older adults and adults with disabilities. ACL has provided leadership on matters related to guardianship reform and alternatives through supporting the development and implementation of Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS). WINGS are predominantly chaired and hosted by highest state courts, and they aim to prevent unnecessary and overbroad guardianships in favor of less-restrictive options. They also seek to prevent, detect, and address abuses in the system. WINGS is the prevailing national model for guardianship reform and the identification of appropriate alternatives to guardianship throughout our country. [x] ACL also has promoted and provided technical assistance and trainings to partners and stakeholders on empowering self-determined decision-making by adults. Further, in federal fiscal years 2021 and 2022, ACL awarded grants to highest state courts to undertake activities to better understand, monitor, and reform guardianship proceedings. Current grantees are undertaking activities, such as: Developing systems to audit conservator and guardian accountings to verify accuracy, completeness, and the appropriateness of expenditures; Creating and maintaining case management systems to track cases for timely adjudication and monitoring of the well-being of wards; Establishing and producing judicial training programs and curricula; Undertaking efforts to identify and implement initiatives to avoid and/or mitigate abuse by conservators and guardians; Creating independent ombudsman programs for wards to voice concerns and seek redress from abuse; and Reviewing and considering guardianship reforms based on the research and models developed by WINGS and other capacity building methods, including those developed by ACL’s National Center for Law and Elder Rights (NCLER). Funding Overview The purpose of this funding opportunity is to enhance the fairness, effectiveness, timeliness, safety, and integrity of adult guardianship/conservatorship proceedings in states. Adequate court oversight and resources are critical to manage the guardianship system to ensure that guardianship is applied appropriately as a last resort, and in accordance with state law and established judicial standards of review. Appropriate supports enable judicial systems to improve guardianship adjudication processes, including recognizing the decisional rights and self-determination interests of adults proposed for or subject to guardianship; monitoring conduct of guardians and conservators to mitigate the potential for fraud and abuse; and developing effective data sets that inform and advance these efforts. With adequate resources and training, states are more able to thoroughly assess each case and ensure state judicial guardianship systems serve to fully preserve, to the extent possible, the decisional rights of persons proposed for and those subject to guardianship. In this funding opportunity, ACL seeks proposals from the highest courts of States to achieve the following goal: Improve the fairness, effectiveness, timeliness, safety, and integrity of adult guardianship proceedings and improve the experiences of individuals at risk of guardianship in the state in a manner that emphasizes alternatives to guardianship, improving the performance of court-appointed public and private guardians, and limits or revokes guardianship. Strong applications will propose advancements, programs, or innovations that address the issues in court processes as identified by the applicants for the state, and will address at least one of the following objectives: Collect and utilize accurate data on relevant demographic and procedural factors that can support better understanding of guardianship within a jurisdiction, and pathways to improvements in key areas. Implement procedural and substantive safeguards to ensure the rights of persons proposed for, or under, guardianship are protected in judicial proceedings and after orders are entered. These considerations may include, but are not limited to, guaranteeing the older adult’s right to counsel or an advocate; supporting diversion to less restrictive alternatives through decisional support tools, services, or both; and limiting the scope of guardianships or terminating guardianships that are no longer necessary. Implement systems to better screen, train, track, and monitor guardians to enhance the court's ability to prevent fraud and abuse and identify discrepancies in guardianship accountings and reports. Examples of activities that meet the goals and objectives of this opportunity are listed below. These examples are illustrative only. Applicants should propose the appropriate activities for their project. Applicant scores will not be affected by whether an application includes an activity listed here or proposes others. Provide trainings and certifications to those involved in the guardianship process Improve collection and analysis of guardianship data Improve courts’ ability to detect fraud and abuse of adults under guardianship Improve the performance monitoring of court-appointed guardians Improve accounting of guardian qualifications and conduct Increase the availability and use of guardianship diversion programs and less-restrictive alternatives to guardianship Develop collaborations between state and local organizations, such as Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS), to identify and address the decisional rights of protected persons and guardianship issues Implement a guardianship decision-making tool (i.e., worksheet or bench card) Conduct outreach and education about how to report abuse by guardians and how the state’s guardianship system addresses abuse. The applicant’s proposed project goals, objectives, and activities should be addressed in the application narrative, for which detailed instructions can be found in Section IV.2 of this opportunity. Additional Requirements Grantee Meetings ACL plans to convene a one-day in-person grantee meeting during each budget period (a total of three in-person meetings over the three-year project period). Meetings will be convened in the Washington, D.C. Metro area, or in another venue to be determined by ACL that would be convenient for grantees and ACL. Grantees are required to attend these meetings, and grant funds can be used for expenses to attend this required meeting. If an applicant plans to use grant funds to cover expenses related to these required, in-person meetings, the planned expenditure should be included in the proposed budget. Evaluation Applications must include a description of how they will measure the success of the project in achieving its proposed goal(s), objective(s), and outcomes. Information about the proposed outcomes and the methods that will be used to measure them should be included in the project narrative, and in the budget if there is an associated cost or in-kind contribution. Please Note: Grantee evaluations of their projects facilitate the government in assessing whether programs are effective in producing positive change. Therefore, ACL is committed to providing technical assistance to grantees with the refinement and carrying out of a project’s evaluation plan. Technical assistance to the grantees will be provided primarily by ACL program staff via regular conference calls and email correspondence. Applicants should be prepared to include progress and information/data on the project’s progress towards its outcomes in semi-annual reports and at other times as agreed upon by the grantee and ACL.  Final Report HHS grants policy requires all recipients of grant funding to submit a final project report. In addition to this report, grantees must submit to ACL a final report, document, or briefing paper that discusses the funded project, its results, and implications for replication.  References i. ABA Commission on Law and Aging. (2020) WINGS Briefing Paper Advancing Guardianship Reform and Promoting Less Restrictive Options. Retrieved on January 11, 2024 from 2020-wings-briefing-paper.pdf (americanbar.org). ii. U.S. Senate Special Committee on Aging. (November 2018). Ensuring Trust Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans. Retrieved January 11, 2024 from SCA_Aging Report- Ensuring Trust Guardianship2018.pdf (senate.gov). iii. U.S. Special Committee on Aging. (November 2018). Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans. iv. National Institute of Justice. (September 2022). Environmental Scan of Guardianship Abuse and Fraud, Full Report. Retrieved January 11, 2024 from Environmental Scan of Guardianship Abuse and Fraud, Full Report | National Institute of Justice (ojp.gov). v. GAO. (March 22, 2011). Elder Justice: Stronger Federal Leadership Could Enhance National Response to Elder Abuse. Washington, D.C. Retrieved January 11, 2024 from https://www.gao.gov/assets/gao-11-208.pdf. vi. National Institute of Justice. (September 2022). Environmental Scan of Guardianship Abuse and Fraud, Full Report. vii. Multiple GAO studies on guardianship: GAO. (July 2004). Guardianships: Collaboration Needed to Protect Incapacitated Elderly People. Washington, D.C. Retrieved January 11, 2024 from Guardianships: Collaboration Needed to Protect Incapacitated Elderly People | U.S. GAO. GAO. (September 2010). Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors. Washington, D.C. Retrieved January 11, 2024, from Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors | U.S. GAO. GAO. (November 16, 2016). The Extent of Abuse by Guardians Is Unknown, but Some Measures Exist to Help Protect Older Adults. Washington, D.C. Retrieved January 11, 2024, from Elder Abuse: The Extent of Abuse by Guardians Is Unknown, but Some Measures Exist to Help Protect Older Adults | U.S. GAO. viii. GAO. (November 16, 2016). The Extent of Abuse by Guardians Is Unknown, but Some Measures Exist to Help Protect Older Adults. Washington, D.C. Retrieved January 11, 2024, from Elder Abuse: The Extent of Abuse by Guardians Is Unknown, but Some Measures Exist to Help Protect Older Adults | U.S. GAO. ix. National Institute of Justice. (September 2022). Environmental Scan of Guardianship Abuse and Fraud, Full Report. x. Commission on Law and Aging – American Bar Association. Working Interdisciplinary Networks of Guardianship Stakeholders: Wings State Replication Guide 2019. Retrieved January 11, 2024, from 2019-wings-replication-guide.pdf (americanbar.org).