Guardianship - Continued
II. NATIONAL GUARDIANSHIP ASSOCIATION
A. BACKGROUND — In the mid 1980s, the Associated Press did a series of articles on abuses in guardianship. Their articles led to congressional hearings and the original National Guardianship Symposium, known as the “Wingspread” conference in 1988. Subsequently, several court challenges added impetus to the reform movement and guardianship laws throughout the country were revised and brought into compliance with modern concepts in equal protection and due process. See: Mark D. Andrews, The Elderly in Guardianship: A Crisis of Constitutional Proportions, 5 Elder Law Journal 75 (Spring, 1997). However, on the federal level, the National Guardianship Rights Act which would require notice, counsel and attendance of the proposed ward at the hearing, has failed in Congress repeatedly. Disappointingly, fourteen states have not yet updated their laws to meet fundamental constitutional concerns.
B. FOUNDING OF NGA — National Guardianship Association (NGA) is a nonprofit organization founded in 1988 by lawyers and activists particularly concerned about the status of guardianships in America. It is comprised of nearly a thousand individuals in public and private, for-profit and not-for-profit, agencies and organizations.
The National Guardianship Association can be contacted at:
National Guardianship Association
1604 North Country Club Road
Tucson, Arizona 85716-3102,
(520) 881-6561
(520) 325-79256 (fax)
During the last decade, membership in the National Guardianship Association has grown steadily. The current budget of the National Guardianship Association is approximately $400,000.00 per year and NGA has 20 staff members. Although there is a family component, the organization is primarily made up of professionals. Membership dues to NGA are $125.00 per year.
The mission of the National Guardianship Association is to be the leading authority on excellence in guardianship and surrogate decision making. In this regard, the National Guardianship Association can provide the following services to its members and those who are interested in guardianship.
C. ANNUAL CONFERENCE — The three-day annual conference rotates between northern, southern, eastern and western portions of the country and is always held in October. The training at the conference is extensive and attendees may receive State Bar of Texas CLE credit. The 2000 conference will be held in Albuquerque while the 2001 conference is scheduled for West Palm Beach, Florida.
D. TRAINING AND EDUCATION — NGA provides extensive training of guardians at basic, intermediate and advanced levels. For groups larger than 20, NGA will fly a skilled trainer anywhere in the country. Such training is usually conducted in conjunction with certification.
E. CERTIFICATION — NGA has established the National Guardianship Foundation, a subsidiary nonprofit organization which tests and certifies guardians. There are two levels of certification:
1. Registered Guardian -- To be certified as a registered guardian (RG) you must:
- be a high school graduate;
- have one year experience in guardianship;
- have completed an approved training course; and
- have successfully completed a two-hour multiple choice examination.
There are currently 504 registered guardians nationwide.
2. Master Guardian -- To be certified as a master guardian (MG) you must:
- have successfully completed all of the requirements of a registered guardian (including testing);
- have a graduate degree and three years of professional full-time guardianship experience or a bachelor’s degree and five years experience;
- have demonstrative expertise in at least six of fourteen criteria involved in guardianship; and
- have successfully completed an eight-hour essay and multiple choice examination.
The first Master Guardian examinations were administered last month and are in the process of being scored.
Certification and testing of guardians is a growing trend that is likely to continue. State legislatures are reacting to reports of malfeasance, as well as articles in the popular press which suggest that becoming a professional guardian is a simple job that can be operated from your home with little or no overhead. Jane Birnbaum, Guardian Angels, Worth, July/August 1988 at 109 (“professional guardianship is a business just starting to take off”). In the past two years, three states have added testing and certification while home-grown testing or NGA certification is under active consideration in several others. As a general rule, changes in guardianship often expand from the retirement states of Florida, California, Arizona, and Texas. Arizona, in particular, has been a leader in this area by requiring extensive testing.
F. PUBLICATIONS — NGA publishes a variety of resource materials for practice development, professional issues, medical decision making, end-of-life issues, developmental issues, financial management and other issues. A listing of resource materials and an order form is attached in Appendix A.
The National Guardianship Association also publishes a series of brochures designed for the public with the following titles:
- Questions and Answers on Guardianship Issues
- The Guardian as Surrogate Decision-Maker
- Guardianship of Developmentally Disabled Individuals
- The Guardian and Informed Consent
- Guardianship/Conservatorship: An Overview
- Assisting the Guardian in Selecting a Nursing Facility
These brochures are reprinted in Appendix B and are available for purchase for a nominal cost from NGA. I have found Questions and Answers on Guardianship Issues to be particularly appreciated by my clients and I make a habit of giving a copy to every client who visits with me about the possibility of becoming a guardian.
During the annual conference, NGA conducts an eight to ten hour legal intensive review which is taught by four to six lawyers who focus on different legal aspects of guardianship that have arisen during the last year. During the review, every reported guardianship case in the nation and any accompanying significant legislative developments are analyzed. The written manual from the annual legal intensives is available for purchase and is quite helpful for anyone involved in statutory drafting, or who might be interested in national trends. (Appendix A).
G. ETHICS AND STANDARDS — The National Guardianship Association publishes A Model Code of Ethics for Guardians (Appendix C) which establishes seven ethical rules.
These rules have been expanded with the Standards for Guardians (Appendix D). The Standards are rules to be applied in the day-to-day practice of guardianship. In the view of the National Guardianship Association, the Model Code of Ethics is mandatory while the Standards are general practice guidelines to which guardians should aspire. The current Standards for Guardians is being revised and when updated, will include such areas as the “Role of a Guardian as Expert Witness” and “Sexual Expressions of the Ward.”
NGA publishes a third document entitled Care Management Bio Ethics and Standards for Professional Health Care Surrogates which primarily focuses on medical treatment of the ward and sets forth, in great detail, the steps a guardian should take and factors that should be considered when terminating life support or when faced with the decision concerning the withholding of nutrition and hydration.
H. DISCUSSION GROUPS, NETWORKING, LISTSERVE — Members of the National Guardianship Association are invited to participate in the usual discussion and networking that any professional organization would provide. Further, NGA has established a listserve on the Internet where a guardian can post questions to be commented upon by other members of the National Guardianship Association. The listserve is available to members only and the discussions and advice can be quite helpful.
J. LIABILITY INSURANCE — The liability of a guardian of the estate is quite clear. The guardian is to manage property appropriately, invest it pursuant to court order, report annually to the court, and to abide by the prudent-man standards well established in the law.
With regard to the duties of the guardian of the person, and the liability of the guardian of the person, the law is very unclear. The reality is that the duties and standards of conduct of a guardian of the person can be so vague that the guardian can be sued for virtually anything.
For example, in a nightmare case for anyone serving as guardian, a Nebraska Probate Court appointed a guardian. The guardian placed the ward in a licensed nursing facility. While at the nursing facility, the patient was injured during a fight with another patient. The family of the injured ward sued the guardian alleging that the guardian had made the wrong placement decision. The guardian defended arguing that as she was court appointed, she had quasi-judicial immunity from these kinds of lawsuits. The case proceeded to the Nebraska Supreme Court which denied the guardian’s defense and remanded the case for full trial. Frey & Nelson, Personal Representatives of the Estate of Chase v. Blanket Corp., 582 N.W.2d 336 (Neb.S.Ct. 1998).
Most professional legal malpractice policies provide no liability coverage for acts taken as guardian rather than as attorney. Until this year, no company in the United States provided liability coverage for guardians. In October of this year, NGA initiated a policy underwritten by CNA Insurance to provide liability coverage for guardians. An application form for the policy is attached as Appendix E. The ward is named as the additional insured on the policy and most courts have taken the position that because the protection is provided to the ward above and beyond that of the bond, the ward’s estate should justifiably incur the costs of the liability policy. In Bexar County, both Probate Courts will approve the taxing of costs for the liability insurance to the ward’s estate.
J. ETHICS HOTLINE — Finally, the National Guardianship Association operates an Ethics Hotline. A member with an ethical problem, may call an officer in the National Guardianship Association and explain their problem. The problem is then circulated amongst a committee that provides a prompt response to the guardian based upon the Standards and Ethics promulgated by NGA. We have received a wide variety of calls upon which ethical opinions have been issued. An example of the type of issues that arise is a question recently received by the Ethics Hotline regarding the duty of a guardian of an HIV positive ward to control the ward’s promiscuous sexual habits.
III. TEXAS GUARDIANSHIP ADVISORY BOARD
A. CREATION — The Guardianship Advisory Board was created by the State Legislature in 1997 and was tasked with developing: 1) minimum standards for guardianship; 2) a plan to provide guardianship services to each individual in this state who may need one; and 3) a plan to encourage the growth of local volunteer guardianship programs. 75th Legislature, Senate Bill 586.
The fourteen member Board consists of eleven members appointed by the Statutory Probate Court Judges, three members appointed by the Commissioner of Health and Human Services and a representative from Protective and Regulatory Services.
B. STANDARDS — The Texas Guardianship Advisory Board has recommended the adoption of the National Guardianship Association Ethics and Standards in Texas.
C. EXISTING GUARDIANSHIP AND NEED — In the first statewide survey of its kind, the Board discovered that there are approximately 47,000 ongoing guardianship cases in the State and that more than 5,000 guardianship cases were filed in 1997. Of the guardianship applications in 1997, in almost 900 of those cases, there was not a suitable family member to serve as guardian. The Board further estimates that there are an additional 45,000 incapacitated adults for whom no one is interested enough to file an application for guardianship and for whom there is no family or individual resources to initiate the proceedings. Of the 45,000, almost 2,400 of these individuals do not have family members or friends suitable to serve as guardians. Clearly, there is a huge need for qualified guardians.
D. DEMOGRAPHICS — The need for guardianship will expand exponentially with the aging population in Texas. The University of Texas Medical Branch in Galveston, Texas estimates that by the year 2015, 211 of the 254 Texas counties will have populations that exceed the national average (15.1 percent) for residents who are age 65 or older.
In the United States currently there are 30 million people who are age 65 or older representing about 9 percent of the U.S. population. By the year 2020, this number is projected to reach 50 million and will represent almost 15 percent of the population. By the year 2050, 22 percent of the U.S. population or almost 80 million people will exceed the age of 65.
Further, information from the U.S. Census Bureau reveals that the fastest growing age group is people over age 85. By the year 2050, there will be 15 million Americans who are over age 85.
These statistics bear even greater implications when coupled with the common illnesses of age such as Alzheimer’s. We know that Alzheimer’s dementia affects 3 percent of people from age 65 to 74, about 19 percent of persons from 75 to 84, and 47 percent of those 85 and older. Evans, D.A., et al, Estimated prevalence of Alzheimer’s Disease in the U.S., Bill Bank Quarterly (1990). Relating these figures to the Texas population, and assuming the current 12 percent growth rate every six years, Texas can expect the current Alzheimer’s population of 276,000 patients to increase to almost 2 million patients by the year 2048.
E. STRATEGIES TO MEET THE NEED FOR GUARDIANSHIP — When weighing the costs and efficiencies of a variety of local programs versus the centralized approach of a single state run guardianship agency, the results were startling. The Board discovered that local guardianships can be provided for approximately $2,000 per ward, per year, whereas the current cost for guardianships managed through Adult Protective Services is more than double that amount. Further, because of the wide differences between urban and rural areas, the Board strongly recommended to the Legislature that the need for guardianship be met through local, county oriented programs. To encourage the development of such programs, the Board has awarded a series of grants to various counties throughout the state. The progress and success of these programs is being closely monitored and the best practices will be developed and encouraged for use in other parts of the state. In response to the Board’s recommendations, the legislature has doubled the Board’s funding for grants, and has ordered the Board to develop a program to transfer current guardianships managed by State agencies to local programs.
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