Grant Description

Background and Current Challenges Guardianships and conservatorships (hereinafter referred to as �guardianships�) describe legal relationships by which state courts empower individuals or entities to make personal and/or property decisions for other adults, or �protected persons,� who the court has determined are unable to make their own decisions regarding a range of fundamental life choices. Court-appointed guardians and conservators (hereinafter referred to as �guardians�) have a duty to care for the interests of the adult who is placed under a guardianship, often referred to as the �protected person.� As such, 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 impact a protected person�s life, including financial, medical, relationships and residential decisions. This substantial authority often means that 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 making a determination about 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 the proposed protected person from participating in the proceedings by rule or practice. State law generally requires that guardianships be an option of last resort after less-restrictive options have been considered, the guardian�s authority is limited, and the guardianship be monitored for abuse and accountability.[1] However, guardianship laws, policies, and procedures are not always consistently enforced or followed within or across states. 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. [2] In November 2016, the U.S. Government Accountability Office 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. As recently as 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.[3] Despite the recognized need for change, there are several challenges to guardianship reform, including the significant differences between court and state practices, the complexity of guardianship cases, the difficulty in balancing risks, protections, and self-determination, and the lack of funding to improve processes.[4] Gaps in knowledge and practice 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. [6] 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. [7] Given the range of issues involved and the complex systems that differ by state, the task of improving guardianship systems requires a variety of solutions that will also vary by state. For example, several states have established Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) to begin identifying and addressing issues with their guardianship systems using a collective action approach. WINGS are predominantly chaired and hosted by highest state courts, and they primarily aim to prevent unnecessary and overbroad guardianships in favor of less-restrictive options and prevent, detect, and address abuses in the system. However, achieving significant and sustained improvement to these systems also requires continued innovation to any of the approaches used to identify and address issues, as well as the methods used to implement improvements. Funding Overview Adequate court oversight, mechanisms, and resources are critical to manage the guardianship system to maximize the decisional rights and self-determination interests of proposed protected persons and to mitigate the potential for fraud and abuse. With adequate resources and training, states are more able to thoroughly assess each case and ensure they are not inappropriately placing an individual in a guardianship when less-restrictive options are available. To address this need and in response to calls for attention, ACL is awarding cooperative agreements to improve guardianship through the �Elder Justice Innovation Grants� program. The Elder Justice Innovation Grants program is intended to support foundational work to create credible benchmarks for adult maltreatment prevention, and for program development and evaluation. The Elder Justice Innovation Grants program supports the development and advancement of knowledge and approaches about new and emerging issues related to elder justice. Funded projects contribute to the improvement of the field of adult maltreatment prevention and intervention at large, by undertaking initiatives such as developing programs, interventions, and materials, or by establishing and/or contributing to the evidence-base of knowledge. Under this opportunity, ACL aims to stimulate improvements in the states� guardianship systems that increase the preservation of the rights and self-determination of proposed protected persons and those subject to guardianship. ACL seeks proposals from the highest courts of States to address the following objectives: Assess the fairness, effectiveness, timeliness, safety, and integrity of adult guardianship proceedings, access to alternatives to guardianship, examination of the processes for appointing and monitoring of the performance of court- appointed public and private guardians, and revocation of guardianship. Develop and implement innovations to address issues determined during the assessment phase of the project. Measure changes to the guardianship system implemented through the project and improvements in the experiences of individuals at risk of guardianship. Examples of activities that meet the goals and objectives of this opportunity include, but are not limited to: Improving courts� ability to detect fraud and abuse of protected persons Improving the performance monitoring of court-appointed guardians Identifying and addressing court guardianship system deficiencies that pose a risk to adults who may encounter the guardianship system Improving accounting of guardian qualifications and conduct Increasing availability and use of guardianship diversion programs and less-restrictive alternatives to guardianship Ensuring all lesser-restrictive alternatives to guardianship are explored in cases, and the least restrictive option is implemented Providing trainings and certifications to those involved in the guardianship process Improving collection and analysis of guardianship data Developing 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 Conducting outreach and education about how to report abuse by guardians and how the state�s guardianship system addresses abuse. The proposed project�s goals, objectives, and activities should be addressed in the application narrative, for which instructions can be found in Section IV.2 of this opportunity. Additional Information � Grantee Meetings Please note that ACL plans to convene grantee meetings during the first six months of each budget period, in person or virtual as public-health circumstances permit. Grantees are required to attend these meetings, absent extenuating circumstances, and grant funds may be used to cover this grant-related expense if the meeting is held in-person. If applicants intend to use grant funds to attend this meeting, they should include this expense in the application budget. Referencees ABA Commission on Law and Aging. (2020). WINGS Briefing Paper Advancing Guardianship Reform and Promoting Less Restrictive Options. U.S. Senate Special Committee on Aging. (November 2018). Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans. U.S. Senate Special Committee on Aging. (November 2018). Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans. ABA Commission on Law and Aging. (2020). WINGS Briefing Paper Advancing Guardianship Reform and Promoting Less Restrictive Options. GAO. (March 22, 2011). Elder Justice: Stronger Federal Leadership Could Enhance National Response to Elder Abuse. Washington, D.C. Retrieved January 28, 2022, from https://www.gao.gov/assets/320/316224.pdf. Multiple GAO studies on guardianship: GAO. (July 2004). Guardianships: Collaboration Needed to Protect Incapacitated Elderly People. Washington, DC. Retrieved January 28, 2022, from https://www.gao.gov/products/gao-04-655. GAO. (September 2010). Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors. Washington, DC. Retrieved January 28, 2022, from https://www.gao.gov/products/gao-10-1046. 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 28, 2022, from https://www.gao.gov/products/GAO-17-33. 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 28, 2022, from https://www.gao.gov/products/GAO-17-33.