Results from a Statewide Survey of Guardianship 2007
The Kentucky Subcommittee on Guardianship
Sue Crone and Pamela B. Teaster, Chairpersons

Background

The Elder Abuse Committee was established in 2005 with the passage of House Bill 298. The charge of the Committee is to develop model protocol on elder abuse and neglect and address issues of prevention, intervention, investigation and coordination of services. The committee is to provide forums for the exchange of information and produce an annual report of activities that includes recommendations for public policy. During fiscal year 2006 the Chairperson of the Elder Abuse Committee established the Guardianship Subcommittee in order to identify issues related to guardianship in the Commonwealth. A workgroup was appointed to examine the development of a statewide guardianship association. Contact was made with guardianship associations in other states and the National Guardianship Association to solicit ideas and direction on its formation to determine interest with in Kentucky and identify possible roles an association could play. A survey of key players in the guardianship system was also developed, sent, and analyzed to inform needs on guardianship as well as the needs and purposes for the statewide guardianship organization.

Methods

A workgroup of the Kentucky Guardianship Subcommittee developed surveys for six different groups. The surveys (Appendix) were distributed by e-mail to the public guardians statewide, distributed to private guardians (hard copies to the Associate for Retarded Citizens at their annual conference, hard copies sent to 4 clerks who mailed the surveys with guardianship reporting reminders), asked Division of Mental Health and Mental Retardation sent a copy to the Community Mental Health Centers so that they would distribute surveys to individuals with whom they were working who had guardians, as well as to GuardiaCare (sole guardianship non-profit in the state). The survey sent to the LCCEAs was distributed via e-mail along with a larger survey for an Administration on Aging grant project on the structure and functioning of Kentucky’s Local Coordinating Councils on Elder Abuse.

The survey for the courts was sent via e-mail to the County Attorney’s Association and via a local district court judge. The survey for attorneys was sent via a listserve to all Kentucky legal aid and elderlaw attorneys.

Respondents. There were a total of 31 Local Coordinating Councils on Elder Abuse; 35 private guardians; 24 state staff guardians; 3 attorneys; 21 court personnel (i.e., 5 judges, 5 county attorneys, 11 clerks); and 2 other (i.e., ombudsmen in legal aid offices). Not all respondents answered all questions.

Coding of Answers

Answers to the questions were coded by three members of the subcommittee who identified patterns and themes in the data. Data were aggregated by the three subcommittee members and two graduate research assistants at the University of Kentucky. The report was written by the same three subcommittee members.

Results
Challenges

Private.
• 50 education (e.g., handling finances and completing reports, planning for wards outliving guardians);
• 2 legislation (e.g., guardian there to help p or receive a paycheck, are guardians check for criminal records, history of physical or substance abuse);
• 2 management and administration (e.g., courts to put the reporting period on the form);
• 17 resources (e.g., lack of residential placements and reliable respite).

State staff.
• 7 education (e.g., misconceptions related to guardianship powers and access to resources);
• 47 management and administration (e.g., high caseloads, inappropriate referrals or appointments, working relationship between APS and guardianship);
• 33 resources (e.g., lack of residential habilitation available for wards, wards with violent/criminal type/nuance behaviors fall between the legislative cracks because they are found not competent to stand trial under the criminal statute but do not meet criteria involuntary institutional placement.

Court personnel.
• 21 education (e.g., understanding guardianship process, responsibilities and completion of reports);
• 4 legislation (e.g., expectation that court bears the expenses, transferring cases, appointment of guardians without minimal background check, waiving jury trial if all parties are in agreement);
• 30 management and administration (e.g., difficulty finding evaluators for the IDT, funding issues with paying the IDT, having the IDT reports filed per statute);
• 1 resources (e.g., lack of resources for disabled adults with criminal tendencies).

Elder law and court appointed attorneys.
• 2 education (e.g., lack of understanding of the guardianship processes and responsibilities, lack of understanding of a power of attorney and a guardian)
• 6 management and administration (e.g., inconsistencies in guardianship processes); 2 legislation (e.g. , lack of uniformity from county to county in practice of cases).

Local Coordinating Councils on Elder Abuse.
• 15 education (e.g., identification of people who need a guardian, lack of understanding of the guardianship process);
• 1 legislation (abuse of powers of attorney)
• 4 management and administration (accountability and conflict of interest);
• 22 resources (e.g., lack of appropriate placement and treatment, public guardianship caseloads that are too high, and lack of court oversight, guardians’ accountability, uniformity of court practices).

Other.
• 1 education (e.g., public awareness of process);
• 1 legislation (e.g., nursing home residents have no one to direct their care but the director of the facilities)
• 4 management and administration (e.g., lack of court oversight).


Strengths

Private.
• 2 education (e.g., community resources need to be educated regarding guardians’ roles and responsibilities);
• 27 legislation (e.g., having control over decisions that affect wards’ quality of life, jury trial is a serious protection of wards’ civil liberties);
• 5 management and administration (e.g., state reviews reports of abuse, assistance of the state in placement decisions and financial support);
• 8 resources and placement (e.g., ability to have families take care of their own members as well as draw upon churches).

State staff.
• 7 education (e.g., understanding the role of the public guardian;
• 6 legislation (e.g, advocacy);
• 66 management and administration (e.g., dedicated and experienced staff members who work and support each other, data system that is user friendly and allows home access).

Court personnel.
• 1 education (e.g., time frames);
• 25 legislation (e.g., jury trial, IDT evaluations, protection of vulnerable adults);
• 5 management and administration (e.g., APS efficient response to IDT evaluations; efficiency of conservatorship, good job of public guardianship if placement can be secured).

Elder law and court appointed attorneys.
• 7 legislation (e.g., support of the jury trial systems);
• 1 management and administration (e.g., reviewing reports).

Local Coordinating Councils on Elder Abuse.
• 17 legislation (e.g., protection and advocacy of vulnerable adults, due process)
• 8 management and administration (e.g., dedication and caring staff).

Other.
• 1 legislation (e.g., jury trial)

Suggestions for Legislative Changes

Private.
Forego jury trial if all parties agree, guardians should be paid for taking care of the ward, reduce length of time for appointment, limit number of wards a private guardian can have, enhance criminal prosecution of guardians who are abusers, work with Social Security on permanent disability reporting, co-guardians instead of stand-by guardians, encourage and support families to become guardian, need to change process of guardian selection, reduce court costs.

State staff.
Set maximum case load standards, provide adequate funding for public guardianship staff, create third party oversight of SCL, clarification of guardians’ liability in statute, clarification of who can become a ward of the public guardian programs, move public program to another cabinet or centralize the program, liability of guardian when needed treatment and placement cannot be secured, mandatory training for APS and guardianship staff, emergency funds for wards, update AOC forms, ongoing guardianship training for court appointed attorneys and district judges, issues surrounding MR criminals into communities not equipped to handle them, need to identify grey areas and loopholes in statutes (e.g., revise “take custody” in KRS 387); if no other placement is located, a state facility must provide residential placement until another placement option can be located.

Court personnel.
Eliminate the jury trial, simplify processes, clarify information regarding where guardianship needs to be filed, funding to secure facilities for disabled individuals with criminal tendencies, periodic social work evaluation of all adult guardianships, certification of guardians, annual review of financial reporting.

Elder law and court appointed attorneys.
Require background checks and credit reports, require training for guardians, standardize appointment of an IDT, more accountability, set clear standards for county to pay for evaluations

Local Coordinating Councils on Elder Abuse.
Need for increased education for public and private guardians, including the need for the general public to learn about strategies for preventing the need for guardianship, need for increased funding for a reduction of the public guardian caseloads and increased court oversight.

Other.
Require bond for all guardians

Training Needs for Family Guardians

Private.
• 5 care and safety( e.g., keeping wards safe and in least restrictive placement, crisis planning)
• 2 financial (e.g., special needs trusts, liabilities of a guardian).
• 15 rights and responsibilities (e.g., resident rights in facilities, recordkeeping and reporting requirements, laws related to serving as guardian, responsibilities of a guardian, advocating for wards),
• 20/35 respondents will attend training by the Kentucky Guardianship Association if offered.

State staff.
• 10 care and safety (e.g., adult protection, ways to deal with daily emotional stress and strain of serving as guardian, transfer and discharge rights);
• 9 finances (e.g., applying for benefits, budgeting, liability, using wards’ finances to support the ward)
• 21 rights and responsibilities (e.g., rights of wards, resources available to support best possible care, understanding limitations of the public program, guardian/family advocate).

Court personnel.
• 2 care and safety (e.g., training on networking with support groups, securing resources );
• 3 financial (e.g., proper and allowable investments and expenditures, how to handle a ward’s estate).
• 3 rights and responsibilities (e.g., recordkeeping and reporting, compliance with all laws related to guardianship: KRS 387,386, 388).

Elder law and court appointed attorneys.
• 2 finances (e.g., accounting and documentation). 3/3 would attend training by KGA if offered
• 5 rights and responsibilities (e.g., documenting and reporting, authority of a guardian, principles of surrogate decision making).

Local Coordinating Councils on Elder Abuse.
• 2 care and safety (e.g., what is an SCL and legal authority, nutrition and medication issues),
• 2 financial (e.g., recordkeeping and reporting), 3 other (e.g., public versus private guardianship, how to define incompetent, alternatives to guardianship).
• 18 rights and responsibilities (e.g., overview of guardianship, legal issues for families),
• 31/25 respondents will attend training by the Kentucky Guardianship Association if offered..

Training Needs for State Staff

State Staff.
• 8 care and safety (e.g., securing needed medical and psychological treatment: 202A, B ad PASR, treatment for wards with criminal behaviors);
• 8 financial (e.g., retaining eligibility for Medicaid when a ward works, Medicaid eligibility: waiver programs, transportation, Medicare—what is it—A,B,C,D, burial contracts, assessing Social Security, information on past payees)
• 15 rights and responsibilities (e.g., protection versus rights, dignity of risk, resident rights, advocating for services, documenting and reporting, working with the courts, determining capacity).
• 18/24 respondents will attend training by the Kentucky Guardianship Association if offered.

Training Needs for Elder Law And Court Appointed Attorneys

Court personnel.
Mentoring for new court appointed attorneys, role and duty of court appointed attorney, seriousness of the cases, importance of meeting the respondent and not relying solely on IDT reports, representing the respondent (asking appropriate questions).

Elder law and court appointed attorneys.
Differences between GAL and attorney for adult guardianship, ethical issues, how to instruct a newly appointed guardian, duties of court-appointed attorneys, guardianship needs of individuals in long-term care facilities.

• 3/3 respondents will attend training by the Kentucky Guardianship Association if offered.


Training Needs for Court Personnel

Court personnel.
Processes of filing guardianship and following through, the role of the court-appointed attorney, mental health proceedings, advising and assisting those persons appointed as guardian, seriousness of the proceeding, elderlaw and guardianship.

• 13/21 respondents will attend training by the Kentucky Guardianship Association if offered.

Other Questions Regarding the Courts

1. Do courts in your area provide training on guardianship prior to appointment?
Courts- 2 yes, Attorneys-0, Other-0

2. If not, would training on guardianship prior to appointment be beneficial?
Courts-19 yes, Attorneys-3, Other-1

3. Do courts in your area provide training on guardianship post appointment?
Courts-9 yes, Attorneys-1, Other-0

4. Do courts in your area send reminders when reports are due?
Courts-11 yes (6 indicated sending a reminder when past due), Attorneys-2, Other-1

5. Is there a training need for court appointed attorneys?
Courts -10 yes, Attorneys -3, Other-0

6. Do courts waive filing fees?
Courts- 4 No

7. What is the filing fee in your county?
Fees varied from a low of $40.00 to a high of $295.00, with the majority of court fees in the $50.00 to $60.00 range. A portion of the highest fee ($295.00) was the charge for the attorney appointed to represent the respondent.

8. Reasons they would waive: indigency, a court order to waive or when Cabinet for Health and Family Services files the petition

9. If a videotape were provided for training, would the courts be willing to offer it to newly appointed guardians?
Courts -12 yes, 6 (decision of the judge), Attorneys – 3 yes

10. Would courts distribute written resources materials to newly appointed guardians?
Courts 19 yes, (17 would distribute contact information for the KGA), Attorneys – 3 yes

Court Relationship with Public Guardianship

Court personnel were asked two questions regarding their relationship and satisfaction with services provided by the public guardianship program.
 Responses regarding relationship with public guardianship: 76% indicated they were satisfied or very satisfied, 14 % were neutral, 10% were dissatisfied.
 Responses related to satisfaction with performance of duties: 81% were satisfied or very satisfied, 14% were neutral, and 5% were dissatisfied.

Several of the comments received addressed issues related to the Cabinet’s Adult Protective Service involvement in cases. Concerns shared included Cabinet not hiring staff members who meet statutory requirements for social work evaluation on the court appointed interdisciplinary evaluation teams, lack of assistance for potential guardians, and lack of going involvement from adult protection once the interdisciplinary evaluations completed .

Concerns related directly to public guardianship program included timely filing of inventories and other mandated reports. One court was satisfied for those for whom services are provided but it was very dissatisfied for those persons not receiving proper care due to lack of proper facilities (i.e., the “criminally insane”). Positive comments included that the performance of duties seem to improve after appointment as guardian; a level of competence, experience, neutrality and professionalism in the Cabinet’s performance; and confidence that the ward is being provided the care and financial management that is appropriate and required by law.


Alternatives Identified

State staff.
General Adult Services, Non-profit guardianship agency, case management services, banks, payee programs, Veterans’ Administration, eldercare networks, curators and durable powers of attorney, family guardians.

Local Coordinating Councils on Elder Abuse.
Representative Payees, alternative money management, trustees, personal representative of decedent’s estates, other alternatives.

Interest in Membership in the Kentucky Guardianship Association

Private. (22 yes/35)
State staff. (18 yes/24)
Court personnel. (11 yes/21)
Elder law and court appointed attorneys. (3 yes/3)
Local Coordinating Councils on Elder Abuse. (21 yes/31)