Monthly Archives: April 2016

How Can I Avoid Being Involved in the Unauthorized Practice of Law?

April 25, 2016

By Professor Roberta K. Flowers

Sometimes lawyers are assisting in UPL in their own law firms without realizing it.

Much has been written and talked about on listservs and in conference and hearing rooms around the country about the unauthorized practice of law (UPL). Some attorneys have suggested that there is a nationwide tsunami of non-lawyers trying to provide traditional legal services for the elderly and people with disabilities. Several Bar Associations have taken up the issue of the harm that comes from botched applications and purchasing unnecessary products.1 

Defining the Practice of Law

However, UPL does not just happen in trust mills and Medicaid planning businesses. Sometimes lawyers are assisting in UPL in their own law firms and businesses, without realizing it. To start, it is imperative to define the practice of law. The ABA Task Force on the Definition of the Practice of Law in 2003 recognized that there is not a universal definition for the practice of law. It suggested that each state should undertake to define for itself what is the practice of law.2 However, the report went on to suggest the “basic premise” is “that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.”3 Oregon’s definition is instructive. It defines the practice of law as “the exercise of professional judgment in applying legal principles to address another person’s individualized needs through analysis, advice, or other assistance.”4 The key to any definition is applying judgment to an individual’s specific circumstances and determining what is the future conduct or service needed. It is advice that combines individualized circumstances and future conduct.

Delegating Functions Appropriately

Only a lawyer should undertake this individualized judgment. If a lawyer allows a non-lawyer to exercise the judgment needed to consider the individualized circumstances and determine the future conduct or needs of the individual, then the lawyer may be assisting in UPL. Consequently, if an attorney is merely signing off on trusts that have been created by non-lawyers or merely acting as a scrivener for Medicaid planning that has been done by a non-lawyer, the attorney may be violating the Rules of Professional Conduct. Comment 2 to ABA Model Rules 5.55 suggests, that the prohibition against UPL can be violated “by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person.”6 The practice of law requires a lawyer to know the individualized circumstances that lead to the drafting of the documents he or she is approving or supplying.

Further, an attorney can violate Rule 5.5 by allowing an employee to make professional judgments that are based on the client’s individual circumstances and future needs. “A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”7 The rules do not prohibit the hiring of “paraprofessionals and delegating functions to them so long as the lawyer supervises that delegated work and retains responsibility for their work.”8

Five Tips for Using Non-Lawyer Staff Correctly

As Robert Anderson, CELA, CAP, Vice Chair of the NAELA Practice Success Section, commented “in the realm of law office economics, it is a win/win situation for clients and the law firm to maximize the appropriate use of non-lawyer staff members.” The key word is the appropriate use of staff.

Anderson suggests five ways to correctly use non-lawyer staff.

1. Proper recruitment

When hiring non-lawyer professionals, look at experience and education, but also consider whether the individual has a heart to serve elders and the ability to communicate. In the initial conversation, it is important to set boundaries for the staff member and to gauge whether that individual is one who is willing to comply.

2. Thorough training

Non-lawyer professionals must understand the lawyer’s ethical rules and how their conduct is governed by the same standards. Anderson suggests that sometimes bringing staff to conferences is a great way to educate them.

3. Holistic Approach

The use of professional care coordinators, such as social workers and nurses, expands the law firm’s mission into a more holistic approach. The use of paralegals in a variety of ways including case management roles is recommended. These paraprofessionals should be included in the initial meetings, but the attorney must set forth for the client and the staff the roles each member of the firm will perform. The lines between legal and non-legal work must be clearly drawn and understood by all. Anderson suggests that role modeling is imperative and that initial meetings should always be led by the attorney.

4. Consistent Supervision

Without a lawyer keeping watch, a paraprofessional with years of experience may begin to step over the line between non-lawyer work and legal advice. Additionally, attorneys should not use paralegals to solicit clients for the attorney.9 The attorney must be very clear that the restrictions on in-person solicitation apply equally to the attorney and his staff. Anderson suggests weekly meetings to allow attorneys to remain abreast of the staff’s work.

5. Be willing to terminate uncooperative staff.

A great employee who violates the principles of the profession or who does not understand the valuable but limited role the employee plays in providing legal services must be let go. A lawyer is vulnerable if he allows repeated violations to go unchecked and uncorrected.

About the Author
Roberta K. Flowers is Co-Director of the Center for Excellence in Elder Law at Stetson University College of Law. She is a member of the NAELA News Editorial Board, the NAELA Board of Directors, and the NAELA Professionalism and Ethics Committee.

Citations

1 See Ohio UPL11-01 (Oct. 7, 2011); Florida Advisory Opinion No. SC14-211; Tennessee Opinion No. 07-166.

2 http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/taskforce_rpt_803.authcheckdam.pdf.

3 Id. at 4.

4 See Oregon State Bar v. Robin Smith, and People’s Paralegal Service, Inc., 942 P. 2d 793 (Or. Ct of Apps 1997).

5 Attorneys must always check the ethics rules and ethics opinions of their own state’s bar.

6 ABA Model Rule 5.5 Cmt 1(2014).

7 ABA Model Rule 5.5 (2014).

8 ABA Model Rule 5.5 cmt 2 (2014).

9 See Michigan Ethics Opinion RI-349 (2010) at http://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1219&Type=6&Index=U for a good discussion about the use of paralegals as conduits between the attorney and the client.

Supporting “Orphan” Elders

April 25, 2016

Orphan elders lack a protective network of family and friends. How can those who serve them provide the support they need?

“Orphan elders” is a term meant to describe the coming wave of childless and unmarried Baby Boomers and seniors who are aging essentially alone. Orphan elders may have no surviving spouse, may never have had children, or may have lived long enough to have no surviving close friends or family. Because of health or financial reasons, they may be socially isolated, either completely or partially.

Although this is not a new issue, research presented at the 2015 American Geriatrics Society’s Annual Scientific Meeting1 gained wide television and print media coverage. The research was conducted as a case study and literature review by principal author Maria Torroella Carney, MD, Chief of Geriatric and Palliative Medicine at the North Shore-LIJ Health System. “We have a sense that this will be a growing population as society ages and life expectancy increases, and our government and society need to prepare how to advocate for this population,” observes Dr. Carney. “There is potentially no structure to address this population, as this population is hidden right before us. Our goal is to highlight that this is a vulnerable population that’s likely to increase, and we need to determine what community, social services, emergency response, and educational resources can help them,” she states.

One-quarter of all Americans over age 65 are already part of or are at risk to join this group, according to a recent University of Michigan Health and Retirement Study.2 This group of orphan elders is aging without the support of any known family member or designated surrogate to act on their behalf. One result is that by 2030, about 5.3 million older adults will be living in nursing homes, compared to about 1.3 million Americans in 2012.3

Awareness, Identification, and Coordination

There are hard facts behind this growing phenomenon. For instance, the 2012 U.S. Census data4 showed that about one-third of Americans aged 45 to 63 are single, which is up 50 percent from 30 years ago in 1980. Another contributing factor in the increasing number of orphan elders is the increased number of couples deciding to remain childless. In fact, between 1980 and 2012, the number of childless women aged 40 to 44 doubled. Other factors contributing to the growing number in this group are advances in medical care leading to longer life spans, and geographical separation of family and friends due to employment commitments. With no family member or friend available to help, orphan elders require heightened awareness by those with whom they do come in contact. These contacts may include their physician, nursing home and hospital personnel, attorneys, and even lay members of the surrounding community who are in a position to identify those who are at risk. After a person is identified as being at risk, there will need to be an enhanced networking solution to prevent the person from slipping between the cracks, and to make sure their physical and emotional needs are being addressed.

This is a gargantuan task because of the array of services that have to be coordinated across the public-private spectrum, and because of the massive numbers of people who require help.

Up until now, this highly vulnerable group’s needs have been addressed in a piecemeal fashion without applying a “blue sky” approach to the problems involved. Unfortunately, neglect is the most common form of abuse being experienced by orphan elders (about one-half of abuse suffered), followed by physical, emotional, and financial abuse.5 The group is vulnerable to many other negative outcomes that include functional decline, mental health issues, and premature death.

Social isolation at any age has long been a known public health problem. Research has demonstrated a strong correlation between social isolation and diminished physical and mental health. Those who are isolated and ill have worse surgical and medical outcomes. Growing evidence from studies of stress and the immune system suggest that loneliness can contribute to disease processes by increasing an individual’s stress levels. Other studies show that having a limited social network or infrequent contact with others results in diminished health. The flip side is that having regular contact and connections to a community leads to better health in older adults, including lower mortality rates, delayed functional decline, and reduced risk of cognitive problems.6

In addition to awareness, identification, and coordination of services, advance planning is key if time is available. Among the recommended measures to take are:

• Recognition by health care providers and advisors;

• Locating an advocate to help in case of emergency;

• Identifying and appointing agents for finances and health care;7

• Evaluating housing options;

• Putting into place estate planning documents, and health care powers of attorney and advance directives; and

• Locating and analyzing the insurance, retirement benefits, and any social services that will be available.8

About the Author
Amy Acheson, Esq., Pittsburgh, Pa., is a member of the NAELA News Editorial Board.


Citations

1 M. Toroella Carney, Abstract #C199, p. 237, Journal of the American Geriatrics Society Abstracts Supplement (2015).

2 University of Michigan, Institute for Social Research, supported by the National Institute on Aging, Growing Older in America: The Health and Retirement Study, http://hrsonline.isr.umich.edu/in

dex.php?p=dbook (2007).

3 Face the Facts USA, The High Cost of Nursing Home Care, http://www.facethefactsusa.org/facts/high-cost-nursing-home-care (Dec. 20, 2012); Varner, J., The Elder Orphans: Who Are They?, Ala Nurse 2005 Sep-Nov; 32(3): 19-20.

4 U.S. Dept. of Health and Human Services, Administration on Aging, Aging Integrated Database (AGID): 2008-2012, ACS Special Tabulation on Aging, http://www.agid.acl.gov/DataFiles/ACS2012/ (last visited Dec. 21, 2015).

5 Statistic Brain Research Institute, Elderly Abuse Statistics, http://www.statisticbrain.com/elderly-abuse-statistics/ (Oct. 22, 2015). Compiled from data available at National Center on Elder Abuse, Bureau of Justice Statistics, https://www.ncjrs.gov/elderabuse/additional.html.

6 See, e.g., K. V. Paris, et al., Relationships Matter: The Importance of Friendships Among Residents of Independent Living Communities, Seniors Housing & Care Journal, Vol 23, No. 1 (2015).

7 Particularly where there is no family available, health care advance directives become increasingly significant and essential. One recent study of cancer patients found that from 2000 to 2012, there was no increase in the percentage of patients who had advance directives (living wills). This is a major reason why the number of patients who had received “all care possible” rose from 7% to 58%, the study found. Efforts to limit or withhold treatment near the end of life were associated with living wills and end-of-life discussions. Making advance directives may be crucial for orphan elders when they become unable to decide important health issues themselves. Amol Narang, Trends in Advance Care Planning in Patients With Cancer: Results From a National Longitudinal Survey, Jrnl. of Am. Med.Ass’n., Oncology, (July 9, 2015).

8 The New York Academy of Medicine and the North Shore-LIJ Health System published an instructive study relating to fulfilling the actual needs of the elderly population on Long Island. It includes extensive information relating to “orphan elders” and explanations of opportunities for service coordination. R. Finkelstein, D. Block, P. Schafer, An Opportunity to Innovate: The Aging of Eastern Queens and Nassau County, The New York Acad. of Med. (2014). http://nyam.org/publications/publication/an-opportunity-to-innovate-the-aging/.

House Republicans Seek Post-Election Medicaid and Medicare Reforms

April 25, 2016

The results of the elections in November could increase push to reform Medicare and Medicaid.

It’s no secret that many Republicans have long sought to reform Medi­caid and Medicare. Right now, the key House committees are developing this legislation primarily in preparation for the post-election Congress. Whether those reforms will become law will be largely dependent on the outcome of the next election.

Medicaid: Major Restructuring or Target Changes?

In the recent past, reform proposals to Medicaid meant major restructuring of the program, such as block grants or per-capita caps as a means to control costs.

Presently, the federal government provides a fixed percent to the states that varies based on the state’s per-capita income. Poorer states receive a higher percentage of federal funding per dollar they spend, but no state can fall below 50 percent in funding assistance.

Under a block grant, states would receive a lump-sum amount, leaving them liable for the rest. Under per-capita caps, states receive a fixed amount per beneficiary, which according to that National Committee to Preserve Social Security and Medicare, would hit seniors and people with disabilities the hardest given that the majority of Medicaid spending covers their health care costs.

Beyond using these as a means to cut costs at the Federal level, what attracts entitlement reformers to these concepts is that the current funding by percentage makes it difficult for states to cut their own Medicaid budgets, because of the additional fiscal burden of losing free federal dollars.

While it’s unclear whether they will attempt to pass a major restructuring in 2017, a new version of reform could take shape.

This Congress, the House Energy and Commerce Committee has actively engaged in learning more about the program and potential areas for change. It has already held several hearings on the subject, covering everything from special needs trusts to supplemental payments to disproportionate share hospitals. In November 2015, the Chairman of the committee announced a special Republican task force on Medicaid reform.

Some of the legislation under consideration by the Energy and Commerce Committee is welcome, such as the Special Needs Trust Fairness Act. But other bills are more concerning. So far, several pieces of legislation have been introduced to limit Medicaid eligibility for long-term care. Both reforms were offered by the Chair of the Energy and Commerce Committee to “payfor” extending health care to 9­-11 first responders, but were removed in the final version that was included in the large appropriation package that passed at the end of 2015.

Here’s an example of what’s been considered so far that could affect your clients.

Limits to Community Spouse Annuities

H.R. 1771 sponsored by Rep. Markwayne Mullin (OK) would make one-half the income of a community spouse annuity available to the institutionalized spouse. NAELA lobbied Congress on the potential negative consequences, including that it would incentivize divorce, undermine the spouse’s economic security, and hurt the formerly middle and working class.

Limits to Home Equity Exclusions

H.R. 1361 sponsored by the Chair of the House Medicaid Reform Task Force Brett Guthrie (KY) would limit home equity for Medicaid eligibility to $552K (inflation adjusted), the minimum limit imposed under the DRA.

Counting Lump-Sums Under MAGI as Income Over Time

The Chair of the Energy and Commerce Subcommittee on Health, Joseph Pitts (PA), has sought to target a key change from the Affordable Care Act: removing the asset test requirements and moving to Medicaid qualification based on Modified Adjusted Gross Income (MAGI) only. H.R. 2339 primarily targets lottery winnings, but as currently drafted it could include other lump-sums as well, such as SSDI lump-sums for back benefits. The legislation would impute lump-sums payments as a stream of income over time thereby disqualifying under MAGI someone who received a lump-sum from Medicaid benefits over a period of months or years.

Medicare: Premium Support, Means Testing, and New Payment Models

On the Medicare side, there are two ideas, combining Medicare Parts A and B and “premium support.”

The first aspect would be to combine Medicare Parts A and B and create a single deductible and out-of-pocket spending cap. The Leadership Council of Aging Organizations has previously warned that “as long as redesigning the Medicare program is approached with the aim of securing federal savings, such efforts are likely to unfairly redistribute costs to beneficiaries, including those with fixed incomes, and limit access to needed health care.”

The second aspect would be “premium support,” in effect moving Medicare from a defined benefit to a defined contribution by the Federal government. Under this approach, beneficiaries would get a predetermined contribution from the government to shop for a private health insurance plan.

Meanwhile, there is much work being done to reform hospital and post-acute care provider payments. More recently, Chairman Brady introduced H.R.3298 — Medicare Post-Acute Care Value-Based Purchasing Act of 2015 to reform provider payments by making post-acute providers compete on a site-neutral cost-per-beneficiary basis. Importantly, the legislation also starts with a cut in payments from the current model, making those who provide “value,” in this case lower costs per beneficiaries, to receive amounts comparable to current payments.

Home health providers are particularly worried that it could force many, particularly non-profit providers and those in rural areas, to exit the business. The legislation is expected to move forward in the House, but its final form remains unclear.

Efforts to Counter Cuts

Organizational support around expanding, not cutting the Medicare program, is beginning to coalesce to counter the proposed roll-back of the program by entitlement reformers. Presently, Medicare does not cover items like hearing aids, dental, and vision (not to mention long-term care). Many seniors may sadly forgo these services, due to high costs or their limited income.

Going on the offense is also important to set the parameters of the debate. If the “beltway insiders” deem the debate to be around how to best cut these programs vs. how to best structure the program to provide adequate health security, two very different outcomes will result. The success of the Social Security expansion movement, which arose to counter “chained-CPI,” a means to limit the Social Security COLA, is an ongoing example of these efforts.

For Medicaid long-term care, there is important work being done, but as of yet Congress has not made any movements toward considering major financing changes. Most recently, AARP, the SCAN Foundation, and LeadingAge funded a study by the Urban Institute and Milliman on the costs and trade-offs of long-term care financing proposals. Importantly, the study has created a database and modeling system for future proposals to use to determine what their effects may be. In addition, the Bipartisan Policy Center, an influential think-tank founded in 2007 by former Senate Majority Leaders Howard Baker, Tom Daschle, Bob Dole, and George Mitchell, plans to release their recommendations soon.

What Can We Expect?

For reforms to Medicaid and Medicare, it’s still too early to tell what, if anything, will pass and become law. But at this moment in time, it looks almost certain that Republicans will maintain their House lead, given that Democrats are at their weakest since 1929. So the discussion of fundamental reforms to the programs and potential legislation isn’t going away any time soon. Here at NAELA, we’ll be working to defend these programs against cuts that could hurt seniors and persons with disabilities and educating those who have a proclivity toward these cuts on the real impact these changes would have on American families.

About the Author

David Goldfarb, Esq., is NAELA’s Public Policy Manager.

NAELA Trends Committee Report Challenges and Opportunities for Elder Law and Special Needs Planning

April 25, 2016

Introduction

The NAELA Trends Committee is responsible for monitoring and reporting on changing and emerging issues or trends that could impact the fields of Elder Law and Special Needs Planning. The Committee is appointed by the NAELA President, with input from the Committee and members who wish to volunteer. The Committee is a mixture of NAELA members across the experience spectrum from new or transitioning attorneys to past NAELA Presidents. The goal of the Committee is to prepare issue papers and submit them to the NAELA Board and other NAELA Committees for review with the hope that the issue papers might be published by NAELA, or used as the basis for NAELA programing.

Starting in 2014, the Trends Committee explored changes to the practice of law. Over several calls Committee members had wide-ranging discussions about changes to law practice in general and the changes to Elder Law and Special Needs Planning in particular. This article provides an overview of those discussions. Trends Committee members hope it encourages broader reflection, discussion, and action among NAELA members. The article is divided into three sections, each of which addresses a distinct area of concern.

The first section, Macro Trends, addresses some of the forces that we believe are most shaping law practice in general and Elder Law in particular, and highlights some of the non-lawyer competitors in the market for legal services.

Next, Why Dedicated Elder Law Attorneys Will Always Be In Demand, responds to many of the trends described in the first section, and highlights what we believe are some of the core attributes of dedicated Elder Law and Special Needs Planning attorneys. We believe that cultivating these attributes will ensure that Elder Law has a strong future even in an increasingly competitive market for legal services.

And finally, the last section, Continued Dangers and Missed Opportunities, highlights many of the ways in which Elder Law and Special Needs Planning attorneys often fail to reach our full potential to serve the public, serve clients, and grow lasting and successful practices, along with a few suggestions on ways to proactively grow a practice.

1. Macro Trends
Integration of legal and non-legal services
We practice in a world where there is not only growing global competition to offer services to United States consumers, but also a growing integration of legal and non-legal services under the same roof. In the United Kingdom and Canada, for example, law firms are allowed to have non-lawyer owners. Consequently, non-attorneys are sometimes able to perform work (such as administering an estate) traditionally done by an attorney. Here in the United States, non-lawyer title companies do the majority of real estate closings in some states. Washington State has a new program for “limited legal technicians” who are allowed to advise clients, and prepare and file court documents on a limited range of family law issues.

The job market for attorneys
The United States has more law schools than ever before (many of them private “for profit” institutions) producing more graduates competing for fewer available attorney jobs than in past decades. In a June 2013 video from the National Association for Law Placement, Association Director James Leipold and Bloomberg Law reporter Lee Pachia describe a marketplace in which recession has led many law firms to employ more technology and fewer attorneys to help manage costs, resulting in a job market in which there are both fewer attorney jobs available and in which firms are more hesitant to hire inexperienced graduates for those attorney jobs.

Growing aging population
The United States has a rapidly growing aging population, with more than 10,000 residents turning age 65 each day. Demographers often refer to this as a “silver tsunami” in which Baby Boomers who are aging into retirement begin to comprise a larger percentage of the United States population as a whole.4

Non-lawyer competition
There is growing competition to attorneys from non-lawyer services and outsourced services. While some members wondered about the development of a “law while you shop” model (Powers of Attorney from WalMart, anyone?), nearly all of us are familiar with the document preparation services offered by LegalZoom, RocketLawyer, and similar online or for-purchase products. (More on these later).

Other professionals as competition
There is a greater awareness of Elder Law as a practice area for both new law school graduates and for many currently practicing attorneys who are transitioning to Elder Law as a focus of their practice. Further, many of us have seen a growing number of financial advisors and other professionals who provide (or attempt to provide) services traditionally offered by Elder Law attorneys.

2. Elder Law and Special Needs Planning Attorneys Will Always Be In Demand
In the face of all of these trends, dedicated Elder Law and Special Needs Planning attorneys have several attributes that mean our services will always be in demand. Because each of these attributes is inter-related, we have opted to list them in a way that implies a hierarchy of attributes.

Our Expertise

As long as there are complex systems to navigate for obtaining public benefits, for locating service providers for the needs of aging clients, and to plan for an uncertain future, there will be a need for dedicated Elder Law and Special Needs Planning attorneys. Take the case of a relatively typical client for an Elder Law attorney: an 82-year-old widow who has some basic estate planning in place, but whose care needs can no longer be met at home. Who is going to speak with her (and her family, if appropriate) about the options for meeting her needs, and her options for paying to meet those needs? Who is going to update her estate and incapacity planning documents in ways that are mindful of her overall needs, family dynamics, and the intricacies of larger systems? Here, we posit that the very complexity of issues faced by many of our clients, and the need for legal expertise (and sometimes representation) to meet their needs means that dedicated elder law attorneys are an essential part of the communities we serve.

Our Network
The connections we make locally among other attorneys, advisors, and service providers enable us to ensure that when the clients and families we serve have unmet needs — whether it be for a trustworthy and senior-friendly CPA or financial advisor, a reputable home health care company, or an accessibility consultant to conduct a home visit and make recommendations for the most cost-effective modifications to make a home more usable for a disabled adult or child (or for anyone wanting to age in place) — we can offer sound recommendations. Likewise, when the needs of a client or their family stretch across state boundaries — as is often the case when a parent or loved one moves across state lines to be closer to an adult child or other family member, if there is ancillary probate required for property in another state, or if a local family simply seeks a recommendation for a good Elder Law attorney in another stat– the dedicated Elder Law attorney can tap into a national network of peers who can meet these needs, and can make recommendations based upon reputation, experience, or both — not merely upon whose name comes up first in an online search.

Our Humanity
Nearly all of us have reviewed estate and incapacity planning documents created by LegalZoom, Rocket Lawyer, and the like. In some cases, the documents are good. In other cases, we are reviewing these documents because we are being asked to clean up messes that were created precisely because there was no human (or at least no Elder Law specialist) involved in the planning process. Here, we must be mindful that our clients are not paying us for documents. Rather, they are hiring us for the services we provide. The services of a dedicated Elder Law and Special Needs Planning attorney often mean that we build strong relationships with our clients and their families over time, such that we become a trusted advisor for many generations of the same family, and that we are recommended to many of their friends as being an invaluable resource — and a good person — in what is often an overwhelming process.

3. Continued Dangers and Missed Opportunities
Ambiguous or Ineffective Branding

For most of the public, “Elder Law” implies that we only serve older clients, which is a great branding disservice for many Elder Law attorneys. Here, many Trends Committee members observed that while our practices often primarily served older clients who were aging into long-term care, most of us also spent a substantial amount of time doing estate planning (often for younger clients), and many of us also had an active Special Needs Planning practice serving both children and adults with special needs who were on or seeking eligibility for means-tested benefits like SSI or Medicaid. For any Elder Law and Special Needs Planning attorney, branding and marketing a practice in ways that continually clarify and exemplify our work is an imperative that, if ignored, will prevent us from reaching the full potential of our practice.

Ineffective or Non-Existent Marketing
Most of us agreed that we had all struggled with marketing our practice at some point. Many of us agreed that the best ways to foster awareness of our expertise and practice areas was to present frequently, both to community partners who might be referral sources (such as social workers at hospitals and care facilities), but also to the public as a whole.

Trying to Compete With Non-Humans and Non-Attorneys
While some readers may laugh at our use of the phrase “non-human,” we use it deliberately to point out that we cannot — and frankly should not — try to compete with the LegalZooms and RocketMatters of the legal marketplace. These entities may be in the business of producing legal documents that skilled Elder Law and Special Needs Planning attorneys also produce, but they are not our competition. Sadly, such businesses are less a source of competition for us, and more a source of business for us as we must sometimes work to clean up the messes that are created when individuals or families do not engage a skilled attorney to explore options and pursue appropriate planning.

Using a Twentieth-Century Practice Model in a Twenty-First Century World
Many readers of this article likely have practices in which they are tethered to a single brick-and-mortar office, in which clients and families must always come to them, and in which a single land line (or series of land lines) means that there is a constant back-and-forth between the home office and the attorney or staff who are often away. With no judgment of such practices, we simply offer the following observation: Imagine how much more flexible, happy, and productive you, your staff, and your clients could be if you adopted a more flexible model in which you visited clients who had limited mobility, had a VOIP phone system that diminished the burden on your staff to answer phones and transfer calls, and had the ability to edit and store documents on the cloud using your Internet connection from wherever you were working.

Adopting the practices and technologies that enable these transformations does take time and money, but we posit that you will see a rapid return on your investment and in your productivity. Of course, maintaining proper boundaries and balance in such a technology-rich system will demand a degree of discipline that not all of us have previously had to exercise.

Not Adopting A Flat-Fee Billing Model

Not all work can be done on a flat-fee basis, but much of it (for some of us, the vast majority of it) can be done on a flat-fee basis. Many of us dislike tracking our time as much as our clients hate reading through a bill of how our time was spent. To put ourselves in the shoes of our clients and their families: How many of them take the time to balance their checkbooks each month? Read through their phone or utility bills? Whatever your answer, the number of people who enjoy doing these things is quite low, especially in a world in which more service providers are wising up to the fact that busy consumers dislike uncertainty and complexity in billing when they can instead choose a flat-fee billing arrangement.

Not Building Lasting Relationships With Your Clients and Your Community

The moment we start putting profit before people is the moment that our client service suffers, and our reputation among our peers and in our communities begins to suffer. Ironically, it is sometimes the practitioner who promises the longest tenure of service (and demands the greatest fee up front) who is most likely to disappoint clients whose needs change over time. Rather than offer a single prescription to this ill, we should simply, as Elder Law and Special Needs Planning attorneys, be mindful of the promises we make versus the service we are actually able to deliver, and never let the former outstrip the latter. Further, we offer the following ideas for ways to engage clients over the long-term: The “celebration model” is one in which an Elder Law practice sets aside time each year or season to thank community partners and clients, often over a meal. The “Planniversary Model” is one in which planning clients are sent regular reminders (perhaps every three years) to check in with their Elder Law and Special Needs Planning attorney about any changes needed to their planning. Last but not least, a subscription model, such as a renewable annual “Client Care” Plan, while it may seem anathema to many practitioners, can be an effective way to build long-term relationships with clients whose needs are ever-evolving.

Not Doing Pro Bono
Law firms are businesses, but law itself is not just a business. It is a profession, and a very powerful one at that. The expertise and connections we develop enable us to address a tremendous number of difficult issues faced by the overwhelming majority of our population. Today, there are so many ways for Elder Law and Special Needs Planning attorneys to offer good pro bono service that there is no excuse not to do so. Educational presentations to the public are not just good marketing; they also provide invaluable information to a broad audience. Estate and incapacity planning for clients who cannot afford our services remains one of the most high-impact and enjoyable ways to provide pro bono service, provided that we manage our time, resources, and client expectations about how much we can do.

Collectively, we hope that Elder Law and Special Needs Planning attorneys find much food for thought in this article. We encourage your reflection, discussion, and action.

Closing Comments
Societal and market forces are changing the practice of law. New and innovative practice models are replacing long-held traditions. To be successful lawyers need to adapt to the changing landscape. It is more important than ever that we demonstrate the value of our services to our clients. As a specialty Elder Law and Special Needs Planning attorneys need to differentiate ourselves from other lawyers, non-lawyers, and non-human competition.

In the coming year, one of the topics the Trends Committee is looking at is social media marketing, and an article on passive and active social media marketing will be available to NAELA members. Not having a social media presence is akin to having an unlisted office phone number in today’s market place. Also, we are closely following developments in Medicaid and Veterans Benefits. The Department of Veterans Affairs is expected to release new rules on assets this year; bills are working in Congress to change annuity rules for Medicaid – with talk of other even more extensive changes in asset rules in the future. The Committee is exploring issues with the unauthorized practice of law (unregulated benefits planning) by non-lawyers and non-humans. We are looking at how our advance care planning work can empower the Supported Decision Making model for the best outcomes for our clients. In all we are looking at changes in the law, changes in practice, and changes in the marketplace. If you are interested in joining the Committee or would like to develop programing on any of these issues, please feel free to contact me, David Godfrey, Trends Committee Chair.

NAELA Trends Committee Members
2014-2015

William J. Brisk, CELA, Chair
Paul Black, Esq.
Michael Gilfix, CELA
David Godfrey, Esq.
Sharon Kovacs Gruer, CELA, CAP
Craig Reaves, CELA, CAP
Charlie Robinson, Esq.
Tamara Trujillo, Esq.

2015-2016
David Godfrey, Esq., Chair
Paul Black, Esq.
A. Frank Johns, CELA, CAP
Michael Gilfix, CELA
Howard S. Krooks, CELA, CAP
William Lucius, Esq.
Charlie Robinson, Esq.
Samantha Shepherd, CELA
Tamara Trujillo, Esq.

Citations
1  For an excellent overview of the Legal Services Act of 2007, the law which opened the door for non-attorney ownership of law firms and multidisciplinary practice in the UK and Wales, see: https://www.law.georgetown.edu/academics/centers-institutes/legal-profession/documents/upload/Future-Law-Firm-Symposium-LegalServicesActSummary.doc

For the full text of the Legal Services Act 2007, see http://www.legislation.gov.uk/ukpga/2007/29/notes/contents For an exploration of how the LSA might impact US firms, see E. Leigh Dance, The U.K. Legal Services Act: What Impacts Loom for Global Law Firm Competition? http://www.americanbar.org/publications/law_practice_home/law_practice_archive/lpm_magazine_articles_v34_is5_pg35.html

2  http://www.wsba.org/licensing-and-lawyer-conduct/limited-licenses/legal-technicians

3  https://www.youtube.com/watch?v=EKSeOXC9hxg

4 https://www.census.gov/prod/2010pubs/p25-1138.pdf

Nurses leaving Texas nursing homes for better pay ‘at McDonald’s or Wendy’s,’ advocates say

April 18, 2016

AUSTIN — Nurses and other medical staff are leaving their positions in Texas’ nursing homes because of low pay, advocates say, setting up the possibility for a nursing shortage in long-term care facilities as the state’s 65-and-over population booms in the next few years.

The state’s low Medicaid reimbursement rate contributes to the low pay, a dynamic that’s driving nurses out of nursing homes or out of the health industry entirely, said Julie Sulik, vice president of Clinical Services for Southwest Long Term Management.

“Sometimes they can go down to the drive-through window at McDonald’s or Wendy’s and make more money,” Sulik said. “Morale can be hurt when we have a hiring freeze or a wage freeze, because we can’t compete.”

Advocates warned lawmakers about the trend in a House Appropriations subcommittee hearing Wednesday. Scot Kibbe, director of government relations for the Texas Health Care Association, said Buc-ee’s convenience stores can pay some employees $14 an hour, and it’s hard for nursing homes to pay certified nursing assistants a wage comparable to that.

“What our providers tell us is their inability to pay competitive wages is a major factor [in turnover],” Kibbe said.

The portion of caregivers to elderly people older than 80 was seven to one in 2010. That is expected to fall to four to one by 2030.

“It’s important to keep in mind where Texas is heading,” Kibbe said. “We are on the verge of significant growth in elderly in this state. Obviously people are living longer and a lot of people are moving to Texas.”

Texas has one of the lowest Medicaid reimbursement rates in the nation, which means nursing homes often spend more caring for residents than they are reimbursed. About 85 percent of Texans in nursing homes depend on Medicaid or Medicare.

Texas Health Care Association President Kevin Warren said the shortfall between what the state reimburses nursing homes and what nursing homes spend is more than $300 million. As a result, he said, nurses in these long-term care facilities often have poor salaries.

“At the end of the day, employees have their own responsibilities to their own families,” Warren said. “You have some of the most compassionate and caring people that work in long-term care. When you lose a staff member that’s been there for many years … it is a very difficult decision for them to uproot and move.”

According to the 2013 Nursing Facility Cost Report, the annual turnover rate for registered nurses in the state’s nursing homes is 94 percent. Warren said this in turn can affect patients in nursing homes.

“Obviously such high turnover raises costs for all of you,” Rep. Four Price, R-Amarillo, noted in the committee hearing Wednesday. “Sounds like we’re paying a lot as a state and maybe not getting a whole lot for that.”

Price requested an analysis that compares the cost of raising wages vs. the costs of high turnover.

In Shanghai, not visiting elderly parents could harm children’s credit ratings

April 18, 2016

ECNS – Children in Shanghai who fail to visit their parents regularly will find their credit standing adversely affected, according to a new rule set to take effect on May 1.

If a child refuses to visit an elderly parent, the parent can file a lawsuit. If the child still refuses to follow through with their obligations after the court makes a ruling, it will be recorded into a credit platform, which could adversely affect their future work and general life.

The rule, aimed at better protecting the rights and interests of senior citizens, also requires children who have sent their parents to nursing homes to regularly visit. If they fail to do so, nursing services have an obligation to remind them.

Shanghai has also stepped up legal support for senior citizens, including a series of free authentication services.

The city had a registered population aged over 60 of about 4.36 million by the end of 2015. The number will surpass 5 million by 2018, and exceed 5.4 million by 2020, according to statistics released by local authorities.

Maryland ABLE Bill Signed Into Law!

April 18, 2016

ANNAPOLIS, MD- Governor Hogan signed the Achieving a Better Life Experience (ABLE) Act into law on April 12, 2016. After months of bipartisan support, Governor Hogan ensured those with disabilities in Maryland have the opportunity to save money for the future without negatively impacting needed federal means tested benefits. Implementation of this federal law will give many people who acquired disabilities prior to the age of 26 the option to open taxexempt bank accounts with the funds reserved for future disability-related expenses.

Following the passage of federal legislation in 2014, the Maryland Department of Disabilities under the leadership of Deputy Secretary William Frank led the task force to draft suggested implementation of ABLE in Maryland. Implementation recommendations were completed in December of 2015 and submitted for consideration by the Maryland General Assembly. The legislation was introduced as House Bill 431 and Senate Bill 355. Throughout the legislative session, Governor Hogan continued to lend his support and ensured the state supplemental budget included needed start up costs for establishing the program.

State implementation requires the College Savings Plans of Maryland Board to establish the Maryland ABLE program helping promote financial savings to support individuals with disabilities in “maintaining health, independence, and quality of life.” The legislation renames the College Savings Plans of Maryland Board to the Maryland 529 Board and requires them to work in consultation with the Maryland Department of Disabilities. Per the legislation, ABLE should be fully implemented in Maryland by October of 2017.

“Governor Hogan continues to support fiscal responsibility and financial wellness for all Marylanders” noted Secretary Beatty at the bill signing. “By supporting the establishment of a robust and comprehensive ABLE program in Maryland, we ensure our state’s economic health extends to all our residents including those with disabilities and their families.”

Prepared by:
Carrie McGraw, PIO
The Maryland Department of Disabilities
410.767.3660
2127 East Redwood Street, Suite 1300

Baltimore, MD 21202

www.mdod.maryland.gov

 

Amending the Uniform Guardianship and Protective Proceedings Act to Implement the Standards and Recommendations of the Third National Guardianship Summit

April 8, 2016

By David M. English, JD

About the Author

David M. English, JD, who was a participant at the Third National Guardianship Summit, is the W.F. Fratcher Professor of Law, University of Missouri, and Chair, Drafting Committee to Amend the Uniform Guardianship and Protective Proceedings Act. He earned a BA from Duke University and a JD from Northwestern University. A shorter version of this article appeared in Dagmar Coester-Waltjen, Volker Lipp, Donovan Waters (eds.), Liber Amicorum Makoto Arai, Nomos, Baden-Baden (Germany): 2015, p. 247.

I. Introduction
The Third National Guardianship Summit, which was held in 2011, recommended the adoption of 70 standards and recommendations relating to guardianship law and practice. This article analyzes the standards and recommendations that might best be implemented by statutory change. The article focuses in particular on how the standards and recommendations might be applied in the current project to amend the Uniform Guardianship and Protective Proceedings Act (UGPPA), various versions of which have been enacted in numerous states.

II. Background

Guardianship law in the United States is one of many legal subjects controlled by state, not federal, law. All 50 states and the District of Columbia each have their own separate guardianship laws. To reduce the resulting inconsistencies among state laws, the Uniform Law Commission (ULC) was formed and held its first meeting in 1892.1 The ULC drafts model acts that states are free to enact or ignore. The hope is that if these model acts are widely enacted, the laws of the states will become more uniform over time. But even if uniform laws are not enacted by states in their entirety, states often borrow from them when revising or enacting particular provisions.2

The ULC has long been involved in the drafting of guardianship laws. The ULC first addressed the subject of guardianship in 1969, when it approved the Uniform Probate Code (UPC), Article V of which is devoted to guardianship.3 Under the UPC, a “guardian” is appointed by the court to make decisions concerning personal care for a minor or incapacitated person and a “conservator” is appointed by the court to manage the person’s property. The appointment of a conservator is part of a broader category known as a “protective proceeding,” which may also include other court orders for the protection of property. But in many states, the court-appointed manager is referred to as either a “guardian of the person” or “guardian of the property.” This article generally uses the term “guardian” when referring to both roles, and “conservator” when referring to solely to property management.

Article V of the UPC was amended in 1982 to add the concept of limited guardianship.4 Concurrently, Article V was published separately from the UPC in the form of the UGPPA. The UGPPA and corresponding UPC provisions were further revised in 1997. The philosophy of the 1997 revision of the UGPPA has been described as follows:

The overriding theme of the 1997 UGPPA is that a guardian or conservator should be appointed only when necessary, only for so long as necessary, and only with such powers as are necessary. The Act views guardianship and conservatorship as a last resort, emphasizes that limited guardianships or conservatorships should be used whenever possible, and requires that the guardian or conservator consult with the ward or protected person, to the extent feasible, when making decisions.5

Much of the energy for guardianship reform in the United States has been generated by national conferences on guardianship at which experts convene and issue recommendations. The first conference was held in 1988 and is known as Wingspread, the name of the conference center where it was held. The conference was convened in response to a series of articles published by the Associated Press critical of guardianship practice.6 Among the principal goals of the recommendations approved at the Wingspread conference were the need to: 1) tighten appointment procedures; 2) emphasize limited guardianship; 3) appoint counsel for the respondent in all cases; 4) emphasize the ward’s choices and substituted judgment; and 5) train guardians.7

Only a portion of the Wingspread goals were incorporated into the 1997 revision of the UGPPA. Although appointment procedures were tightened8 and a preference was created in favor of limited guardianship,9 the other goals were not achieved. First, the 1997 revision does not mandate the appointment of counsel to represent the subject of the proceedings. The revision gives the enacting jurisdiction a choice on appointment of counsel. The enacting jurisdiction may select the optional paragraph requiring the appointment of counsel for the respondent in all cases or may select the optional paragraph leaving the appointment of counsel to the court’s discretion.10 Second, the 1997 revision is ambiguous on the extent to which substituted judgment is recognized, used here in the sense that the guardian must make the same decision the person under guardianship would have made if the person was competent and not under guardianship. The UGPPA contains language suggesting that a substituted judgment standard applies. The guardian must encourage the person under guardianship to participate in decisions,11 and in making decisions, must also consider the expressed desires and personal values of the person under guardianship.12 But the UGPPA then retreats from a substituted judgment standard by stating, “A guardian at all times shall act in the ward’s best interests and exercise reasonable care, diligence, and prudence,”13 implying that best interests, not substituted judgment, is the predominant test. The final Wingspread goal, the better training of guardians, is more an issue of funding and court practice than of statutory enactment.

The Second National Guardianship Conference, held at the Stetson College of Law in 2001 and known as Wingspan, produced a series of recommendations largely reinforcing and refining the recommendations made in the Wingspread report.14 The Wingspread report had a major influence on guardianship reform, including the drafting of the 1997 UGPPA. The influence of the Wingspan recommendations has been more muted although Recommendation 1 did have a major impact. Recommendation 1 encourages the development of procedures to resolve interstate jurisdiction controversies over which state’s court has jurisdiction to appoint a guardian. The recommendation also encourages states to develop procedures to facilitate the transfer of existing guardianship cases between jurisdictions.15 Influenced by this recommendation, the ULC in 2005 appointed a committee to draft the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which was approved in 2007. This Act has since been enacted in 40 states and the District of Columbia.16

But the focus of this article is on the Third National Guardianship Summit and the extent to which the UGPPA should be revised in light of the 70 standards and recommendations approved by the Summit participants. The Summit was held at the University of Utah in October 2011. The Summit standards and recommendations and accompanying law review articles were published in the Utah Law Review.17

The Third National Guardianship Summit was organized by the National Guardianship Network (NGN), a group of national organizations dedicated to effective adult guardianship law and practice.18 Also participating were an array of other groups concerned with issues of aging, intellectual disability, and mental illness.19 Unlike the Wingspread and Wingspan conferences, the Third National Guardianship Summit focused primarily on issues that arise after a guardian or conservator is appointed. The Wingspread and Wingspan conferences focused more on issues concerning the appointment of guardians.

During the Summit, participants were divided into working groups.20 In addition to a standards overview group, working groups were created to focus on five substantive areas: guardian’s relationship with the court, health care decisions, residential decisions, financial decisions, and guardian fees. In addition, a state interdisciplinary working group was charged with determining how the Summit results could best be implemented in the various states. Each working group produced a set of proposals that were debated in a final plenary session. After the conference, the Summit organizers were charged with harmonizing the final product. The 43 proposals directly affecting guardian standards of practice were classified as standards, and 21 proposals directed more at courts, legislators, and guardianship organizations were classified as recommendations. Finally, six recommendations address how to best implement the Summit results. Some of the proposals from different working groups overlap. For example, references to the importance of ascertaining the present and past wishes of a person under guardianship appeared in the reports of several working groups and made their way into many of the final standards and recommendations.21

After the Summit, NGN appointed an implementation committee, on which this author served. One of the charges to the NGN Implementation Committee was to group the 70 standards and recommendations into four categories: statutory, practice, educational, and other. The 26 standards and 10 recommendations the committee deemed relevant to the revision of the UGPPA appear at the end of this article in Appendix A. Based on the report of the implementation committee, NGN recommended to the ULC that a drafting committee be appointed to revise the UGPPA. The ULC agreed, and a drafting committee was appointed in 2014, with this author serving as chair and Nina Kohn of Syracuse University as the reporter. The committee is charged with revising “selected portions of the UGPPA in order to implement some of the recommendations of the Third National Guardianship Summit and otherwise update the act.”22

The significance of the Summit is not limited to the current project to amend the UGPPA.23 The National Guardianship Association (NGA) incorporated the Summit standards into the NGA Standards of Practice for Guardians.24 The National Academy of Elder Law Attorneys incorporated the standards and recommendations into its public policy guidelines.25 The Conference of Chief Justices adopted a resolution urging state courts to review and consider the standards and recommendations.26 The American Bar Association House of Delegates approved a resolution adopting the standards and recommendations as association policy.27 Perhaps more significantly, to implement the standards and recommendations, six states formed Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS).28 These multidisciplinary task forces will continually evaluate guardian practice in their individual states.29

The remainder of this article analyzes the 36 National Guardianship Summit standards and recommendations relevant to amending the UGPPA. The standards and recommendations are grouped into the following categories:

A. Preference for People-First Language

B. Guardian’s Relationship to the Court

C. Standards for Guardian Decisions

D. Health Care Decisions

E. Residential Decisions

F. Financial Decisions

G. Guardian Fees

III. Analysis of Standards and Recommendations

A. Preference for People-First Language

An adult under guardianship was traditionally referred to as an “incompetent.” A prominent example of this is the definition of “incompetent” in the 1946 Model Probate Code, which provides that a person may be determined incompetent due to conditions such as “imbecility, idiocy, senility, [and] habitual drunkenness.”30 Terms such as “incapacitated person” and “disabled person” are more modern substitutes. “Incapacitated person” was the term used in the 1969 UPC and the successor UGPPA.31 The term “disabled person” was the term adopted in the competing but far less successful 1979 ABA Model Guardianship and Conservatorship Act.32

Recommendation 1.7 advises that, where possible, the term “person under guardianship” replace terms such as “incapacitated person,” “disabled person,” and “ward,” the other traditional term used in the UGPPA.33 This recommendation is consistent with the advocacy movement to use people-first language when referring to individuals with disabilities. The theory is that one should focus on the individual instead of the individual’s condition.34 Although the use of people-first language is a long-time priority of many advocacy groups, not all groups share this view.35

Completely substituting people-first language for traditional language in the revision of the UGPPA will be difficult. To this author’s knowledge, no state has achieved such substitution across the board in its adult guardianship laws. The closest may be the 1993 South Dakota Guardianship and Conservatorship Act,36 a legislative drafting project for which this author served as committee chair and reporter. The South Dakota Act, which drew partially on the 1982 version of the ­UGPPA, avoids using the terms “incapacitated person” and “ward.” For “incapacitated person,” it substitutes “person alleged to need protection.”37 For “ward,” it substitutes “protected person,” which under the South Dakota Act refers to a person for whom either a guardian or conservator has been appointed.38 Considerably greater drafting difficulties would have been encountered had an attempt been made to use the terms “person under guardianship” and “person under conservatorship.” That effort, even if successful, might have resulted in a considerable loss of clarity.

B. Guardian’s Relationship to the Court

Several Third National Guardianship Summit standards and recommendations relate to the guardian’s required reporting to the court and to the court’s monitoring of the guardian’s performance.39

Under Standard 2.2, a guardian or conservator must keep the court informed about the well-being of the person under guardianship or conservatorship and of the status of the person’s estate through personal and financial plans, inventories and appraisals, and annual reports and accountings. Standard 2.2 is consistent with the UGPPA, except that Standard 2.2 requires a conservator to provide appraisals, an expensive and often unnecessary step. Under the UGPPA, the guardian must file a report within 30 days after appointment and annually thereafter.40 Among the required contents of the report is a statement on the guardian’s plans for future care.41 Conservators of the estate must file an inventory,42 a conservatorship plan,43 and an annual report.44 Finally, the ­UGPPA requires the court to establish a system for monitoring guardian and conservator compliance with the filing requirements.45 However, merely stating that a court must establish a monitoring system and actually having an effective monitoring system are two different things. Recommendation 2.3 describes in considerable detail the elements of an effective monitoring system.46

The Third National Guardianship Summit standards and recommendations emphasize a philosophy of the least restrictive alternative. Some alternatives, such as the revocable trust or power of attorney, require advance planning. Others, such as the appointment of a representative payee under Social Security or better use of community supports, can be done currently.47

Recommendation 2.2 encourages the court to issue orders that implement the least restrictive alternative and maximize the person’s right to self-determination and autonomy. Steps the court might take to implement the recommendation are also listed. A least restrictive alternative philosophy is already an important element of the UGPPA. Before appointing a guardian for an adult, the court must determine whether any less-restrictive alternatives are available.48 Also, the court, whenever feasible, must grant the guardian or conservator only those powers necessitated by the limitations and demonstrated needs of the person under guardianship or conservatorship. Furthermore, the court must make appointive and other orders that will encourage the development of the person’s self-reliance and independence.49 The least restrictive alternative philosophy as applied to specific types of decisions is described later in this article.50

Summit Standard 1.4 requires that the guardian promptly inform the court of any change in the capacity of the person under guardianship that warrants an expansion or restriction of the guardian’s authority. Although the UGPPA requires the guardian to include in the guardian’s report a recommendation on the need for continued guardianship and any recommended changes in the guardianship’s scope,51 the guardian is not required to report on changes in capacity. Requiring a prompt report on changes in capacity could place a burden on guardians, but such a statement could certainly be added as one of the required statements in the guardian’s annual report.

Issues concerning the court’s role in approving a guardian’s or conservator’s compensation, supervising the conservator’s financial management of the estate, and approving the guardian’s health care and residential care decisions are addressed in the sections of this article devoted to these topics.

C. Standards for Guardian Decisions

The most significant portion of the Third National Guardianship Summit report relates to the standards by which a guardian’s decisions should be judged. At the heart of these standards is the adoption of “person-centered” planning,52 a concept that originated from experts working with individuals with intellectual disabilities.53 The theory here is that the plan of care will be directed by the person with a disability, with “support” or “assistance” from a network of family and professionals (the “supporters”).54 Another model is “co-decision-making,” under which the individual’s decisions require the consent of another person.55

Person-centered planning and the related concept of supported or co-decision-making are recognized in several European countries, Japan, and a number of Canadian provinces.56 The provision of adequate supports is also required under the United Nations Convention on the Rights of Persons With Disabilities.57 Person-centered planning is not without concerns, however. It assumes that supporters are available, which is sometimes not the case. There is also a concern that safeguards may be needed to minimize the risk of abuse.58

Person-centered planning and supported decision-making are only beginning to be recognized in U.S. guardianship statutes, the 2015 Texas statute being the first such enactment.59 The Texas statute recognizes person-centered planning60 and the availability of adequate supports as an alternative to guardianship61 or as the basis for limiting a guardian’s powers.62 The statute also defines supported decision-making,63 specifies the requirements for a supported decision-making agreement,64 and specifies what a supporters may do.65Numerous Summit standards are relevant to person-centered planning and supported decision-making. Standard 1.1 requires that the guardian develop a plan emphasizing a “person-centered philosophy,” and Standard 6.5 requires that the person under guardianship, whenever possible, lead the residential planning process. Several standards encourage the guardian to follow the person’s decisions when feasible.66 Several other standards encourage the person under guardianship to participate in decisions,67 and others require that the person’s current preferences at least be considered.68 The guardian or conservator must otherwise promote the self-determination of the person and exercise authority only as necessitated by the person’s limitations.69 Also, when possible, the conservator must assist the person to develop or regain the capacity to manage the person’s own financial affairs.70

But in many situations, the person under guardianship is unable to participate in decision-making. The Summit working groups on health care decisions and residential decisions recommends that if the person under guardianship is unable to participate, the guardian follow a three-part test for decision-making that was derived originally from the case law on the withholding or withdrawal of health care treatment.71 The guardian must first act in accordance with the person’s prior directions, expressed desires, and opinions; or to the extent these are unknown or unascertainable, must act in accordance with the person’s prior general statements, actions, values, and preferences; or to the extent these are also unknown or unascertainable, must act in the person’s best interests.72

To effectuate this three-part test, the Summit recommended that state statutes and the UGPPA be amended to emphasize a preference for self-determination and substituted judgment.73 However, the Summit working group on financial decisions was less definitive in its advocacy of substituted judgment, suggesting that more of a balancing test should be applied. While the conservator must give priority to the needs and preferences of the person, the conservator must also weigh the costs and benefits to the estate and apply state law regarding prudent investment practices.74

The UGPPA only partially incorporates the Summit’s decision-making standards. The UGPPA does not expressly mention either person-centered planning or supported decision-making, although there is language requiring guardians and conservators, to the extent possible, to encourage persons under guardianship or conservatorship to participate in decisions, act on their own behalf, and develop or regain capacity.75 The UGPPA could follow the lead of Texas and expressly recognize effective person-centered planning or supported decision-making as an alternative to guardianship or conservatorship. Person-centered planning or supported decision-making could also be integrated into the guardianship or conservatorship itself. The guardian or conservator could be required to arrange for the appropriate supports and either follow the person’s decisions in appropriate situations or otherwise give these decisions great weight.76

Language appears in the UGPPA that supports a substituted judgment standard. A guardian, when making decisions, must consider the person’s prior expressed desires and personal values.77 However, the next sentence states that “[a] guardian at all times shall act in the ward’s best interest and exercise reasonable care, diligence, and prudence,”78 implying that the predominant test is the person’s best interests. At a minimum, the UGPPA should give increased weight to substituted judgment.79

Addressing a different issue, the Summit standards require a guardian to make a good faith effort to cooperate with the person’s other surrogate decision-makers, such as trustees or agents.80 When different persons who serve as guardians or conservators fail to work together, deadlock can result.

D. Health Care Decisions

In the UGPPA, the statutory language on the authority of a guardian to make health care decisions is limited to a brief reference in § 314,81 the section that specifies all guardian duties. The NGN Implementation Committee concluded that the subject of health care was important enough to be addressed in a separate statutory section. As mentioned previously in this article, the Third National Guardianship Summit recommended a multi-level test for decision-making by guardians.82 A similar formulation appears in the standards for health care decisions. First, the guardian is charged with maximizing the participation of the person under guardianship.83 This includes encouraging and supporting the person “in understanding the facts and directing a decision.”84 Second, if the person is unable to direct the decision, the Summit standard applies the three-part test described previously of expressed wishes, substituted judgment, and, finally, best interests.85 Best interests include “consideration of consequences for others that an individual in the person’s circumstances would consider.”86

The Summit participants recommended that guardianship statutes be amended to provide that a health care power of attorney remain in effect unless the court determines that the agent is unable, unwilling, or unsuitable to perform the agent’s duties.87 This recommendation is consistent with the UGPPA, which already addresses this subject in considerable detail. Under the UGPPA, if the principal has not nominated anyone to be a guardian or conservator, the agent under the health care or financial power of attorney is given priority for appointment as guardian or conservator.88 To ensure that the agent is in a position to become guardian or conservator, the UGPPA requires that the agent receive notice of the proceeding.89 Furthermore, until the court revokes that authority, the UGPPA provides that the authority of the agent takes precedence over that of the guardian.90 “The agent is granted a preference on the theory that the agent is the person the respondent would most likely prefer to act. The nomination of the agent will also make it more difficult for someone to use a guardianship to thwart the authority of the agent.”91

E. Residential Decisions

The UGPPA provisions relating to residential decisions are brief. The UGPPA empowers a guardian to take custody of the person under guardianship and determine the person’s place of physical residence.92 The guardian must notify the court of any change in the place of physical residence,93 but court approval of the change is necessary only if the guardian seeks to establish the physical residence in another state.94

The Summit standards relating to residential decisions are more detailed. Several Summit standards on residential decisions duplicate the general standards for decisions discussed previously. Emphasis is placed on deferring to the individual’s wishes and otherwise 1) following the person’s prior express wishes if any; 2) making the decision the person would have wanted if that can be ascertained; or 3) making the decision that is in the person’s best interests.95 The Summit standards also include a requirement that the guardian implement a person-centered plan.96 At a minimum, the guardian must ensure that the person participate in the planning process.97

The Summit standards prioritize placement in home or other community-based settings98 and require the guardian to seek approval by the court or court-designated third party before moving the person under guardianship to a more restrictive setting.99 A guardian must also monitor the residential setting on an ongoing basis.100 The NGA Implementation Committee concluded that these particular standards require further discussion before a recommendation can be made on whether to incorporate them into the UGPPA and, if so, how.

F. Financial Decisions

Similar to the Summit standards for guardians, the standards for conservators require a conservator to manage the financial affairs of the person under conservatorship in a way that maximizes the person’s dignity, autonomy, and self-determination.101 In addition, a conservator must promote the self-determination of the person and exercise authority only as necessitated by the person’s limitations.102 The conservator must encourage and assist the person to act on his or her own behalf and to participate in decision-making.103 When possible, the conservator must assist the person to develop or regain the capacity to manage the person’s own financial affairs.104 The UGPPA already contains similar language.105

But there are limits to this emphasis on self-determination. The Summit standards require that the conservator, when making decisions, consider the costs and benefits to the estate and the law regarding prudent investment practices.106 The decision-making standards for health care107 and residential decisions108 and the recommendation for decision-making by guardians in general109 give greater weight to the person’s current and past preferences.

The UGPPA provisions on conservators appear in Article 4. Although some of these provisions were updated in the 1997 revision of the Act, many date back to the original UPC, which was approved in 1969. Since then, the ULC has approved several major fiduciary acts, including the Uniform Prudent Investor Act of 1994,110 Uniform Trust Code of 2000,111 and Uniform Power of Attorney Act of 2006.112 The more modern acts should be consulted during the current project to revise the UGPPA.

The Third National Guardianship Summit recommended that state guardianship statutes specify the mandatory duties of the guardian and do so with greater clarity.113 With regard to conservators, the UGPPA already specifies a number of duties, including the duty to file conservatorship plans,114 inventories,115 and annual reports.116 It also specifies in detail the duties of the conservator with respect to distributions.117 But the UGPPA is otherwise brief in describing the conservator’s fiduciary duties. Under the UGPPA, the overriding obligation of the conservator is to observe the standards of care applicable to trustees.118 This seems to imply, at a minimum, that the conservator has a general obligation to act with prudence.119 However, it is uncertain to what extent the obligation to observe the standards of care applicable to trustees subjects the conservator to the specific provisions of the Uniform Prudent Investor Act and the many other trustee duties, such as the many duties codified in the Uniform Trust Code.120

The Uniform Power of Attorney Act, which was approved in 2006, may offer a path forward. The predecessor Uniform Durable Power of Attorney Act was very short,121 largely leaving the duties of the agent to the common law of agency. Under the 2006 Act, the duties of the agent are specified in detail. While other acts, such as the Uniform Trust Code, served as a model for the Uniform Power of Attorney Act, the latter modifies these duties in a way that is appropriate for agents.122 It is suggested that the UGPPA drafting committee follow the same process in making the stated duties of the conservator more complete as was used in drafting the Power of Attorney Act. Although the other uniform acts can serve as models, provisions borrowed from these acts should be modified in a way that is appropriate for conservators.

The Third National Guardianship Summit approved a number of other standards relating to financial decisions. The Summit recommended that a conservator be required to delegate responsibilities, as appropriate, to people with appropriate expertise.123 The UGPPA already contains a delegation provision,124 which was copied from the Uniform Prudent Investor Act.125 The Summit report contains a standard for determining whether a conservator may enter into a transaction that involves a conflict of interest or self-dealing.126 The UPGGA already contains a provision specifying when transactions with close family and other affiliated parties are presumed to be a violation,127 but it does not deal with the subject more generally as does the Uniform Trust Code.128

An important issue for a prospective conservator is whether the conservator must furnish bond, which normally involves the purchase of a fiduciary bond from a surety company, an expense that will be charged to the estate. The Summit standards require a conservator to take all steps necessary to obtain a bond to protect the estate.129 Under the UGPPA, requiring bond is at the discretion of the court.130 The state guardianship and conservatorship statutes are split over whether bond is required.131 Waiving bond can save considerable expense. On the other hand, without a bond, there may be no protection against loss if the conservator lacks personal assets. The National College of Probate Judges recently recommended that bond be required, reversing its prior position that the matter of bond is best left to the court’s discretion.132

G. Guardian Fees

The UGPPA provides that a guardian or conservator is entitled to reasonable compensation,133 which is the approach taken in most states.134 The UGPPA does not specify the factors the court must consider in setting compensation. Instead, that issue is addressed in the official comment, which lists factors relevant to fiduciaries generally.135 The Third National Guardianship Summit working group on guardianship fees developed a long list of factors tailored to guardianship.136 That list should be considered for the official comment to the UGPPA, if not for the statute itself.

Even if reasonable, the amount of compensation can be a surprise if there is a lack of advance notice. For this reason, the Summit recommended that a guardian: 1) disclose in writing the basis for fees at the time of the guardian’s appointment; 2) disclose a projection of annual fiduciary fees within 90 days of appointment; and 3) disclose fee changes.137 Requiring that the guardian project annual fees could be problematic. It is often difficult for guardians to estimate how much time will be required until they have had a chance to assess the situation following appointment. Also, the condition and needs of the person under guardianship may change.

Unless the size of the estate is substantial, the expense of providing for the care of the person under conservatorship often exceeds the available income. Properly managing a depleting estate is a significant challenge. Even with careful management, estate funds often become exhausted. The Third National Guardianship Summit report recommends that the guardian inform the court of the likelihood that funds will be exhausted.138 This requirement could certainly be added to the plans and reports already required under the UGPPA.139 But if the funds run out, the Summit report recommends that the guardian be required to remain in office if the guardian failed to raise the issue of exhaustion of assets with the court and failed to make appropriate succession plans.140 The shortage of available guardians for those of modest means is a problem that a statute alone cannot solve.

IV. Conclusion

Revising the UGPPA will take at least two years. The project will not be completed until 2017 at the earliest. It is hoped that the drafting committee will produce a consensus product that many states will enact.

But even in jurisdictions where it has not been enacted, the UGPPA in its current version has greatly influenced the development of guardianship law. What often counts most are the ideas expressed, not the exact statutory wording. Even if the exact wording of the revised UGPPA is not enacted in all states, the ideas expressed in the revision hopefully will influence guardianship reform far into the future.

Omitted are standards and recommendations that are not statutory in nature, including those relating to best practices, training of guardians, and the formation by states of Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS).

The comments below the standards and recommendations were written by David English and Linda Whitton, who constituted the subcommittee of the National Guardianship Network charged with determining which standards and recommendations should be considered in the revision of the Uniform Guardianship and Protective Proceedings Act (UGPPA).

Standards

1. Core Standards

Standard 1.1

The guardian shall develop and implement a plan setting forth short-term and long-term goals for meeting the needs of the person.

• Plans shall emphasize a “person-centered philosophy.”

Comment: Revise UGPPA § 317 to incorporate this standard; create new section in Article 4 that incorporates this standard and the other inventory and reporting requirements from § 418.

Standard 1.3

The guardian shall make a good faith effort to cooperate with other surrogate decision-makers for the person.

• These include, where applicable, any other guardian, conservator, agent under a power of attorney, health care proxy, trustee, VA fiduciary, and representative payee.

Comment: Revise UGPPA §§ 314 and 418 to include this standard in an expanded list of duties. See Uniform Power of Attorney Act § 114(b) for a similar construct.

Standard 1.4

The guardian shall promptly inform the court of any change in the capacity of the person that warrants an expansion or restriction of the guardian’s authority.

Comment: Revise UGPPA §§ 318 and 431 to match.

2. Guardian’s Relationship to the Court

Standard 2.2

The guardian and conservator shall keep the court informed about the well-being of the person and the status of the estate through personal care and financial plans, inventory and appraisals, and annual reports and accountings.

Comment: Same comment as for Standard 1.1. However, do not require mandatory appraisals — they are too costly and could drain the assets of the estate.

Standard 2.3

The guardian shall seek assistance as needed to fulfill responsibilities to the person.

Comment: Consider adding a statutory provision to the UGPPA that would permit a court to grant a guardian the authority to temporarily delegate the guardian’s powers. See Uniform Power of Attorney Act § 201(a) for a similar construct.

3. Fees

Standard 3.1

The guardian, as a fiduciary, shall:

• Disclose in writing the basis for fees (e.g., rate schedule) at the time of the guardian’s first appearance in the action

• Disclose a projection of annual fiduciary fees within 90 days of appointment

• Disclose fee changes

• Seek authorization for fee-generating actions not contained in the fiduciary’s appointment

• Disclose a detailed explanation for any claim for fiduciary fees.

Comment: Revise UGPPA § 417 to include these requirements but perhaps without requiring the guardian to project annual fiduciary fees.

Standard 3.2

A guardian shall report to the court any likelihood that funds will be exhausted and advise the court whether the guardian intends to seek removal when there are no longer funds to pay fees. A guardian may not abandon the person when funds are exhausted in cases in which the spend down occurred over several reporting periods and the guardian failed to address the probability of exhaustion with the court and failed to make appropriate succession plans.

Comment: The objectives of the first sentence could be handled in the reporting provisions discussed in the comment for Standard 1.1. The objective of the second sentence might not be achievable by statute.

4. Financial Decision-Making

Standard 4.1

The conservator, as a fiduciary, shall manage the financial affairs in a way that maximizes the dignity, autonomy, and self-determination of the person.

Standard 4.2

The conservator shall consider current wishes, past practices, reliable evidence of likely choices, and best interests of the person.

Standard 4.3

A conservator shall, consistent with court order and state statutes, promote the self-determination of the person and exercise authority only as necessitated by the limitations of the person.

Standard 4.4

The conservator shall encourage and assist the person to act on his or her own behalf and to participate in decisions.

Standard 4.5

When possible, the conservator shall assist the person to develop or regain the capacity to manage the person’s financial affairs. The conservator’s goal shall be to manage, but not necessarily, eliminate risk.

Comment: Recommend statutory revision to UGPPA § 418 to incorporate Standards 4.1 through 4.5. In some instances, alternate paragraphs will be needed to distinguish between conservators for adults and conservators for minors.

Standard 4.7

The conservator shall avoid all conflicts of interest and self-dealing, and all appearances of conflicts of interests and self-dealing.

• Portion of Standard 4.7 not statutory in nature omitted.

• The conservator may enter into a transaction that may be a conflict of interest or self-dealing only when necessary, or when there is a significant benefit to the person under the conservatorship, and shall disclose such transactions to interested parties and obtain prior court approval.

Comment: Recommend including provisions dealing with conflicts of interest in UGPPA §§ 314 and 418. The objectives covered in § 423 should be moved to § 418. See Uniform Trust Code § 802 and Uniform Power of Attorney Act § 114 for similar constructs.

Standard 4.8

The conservator shall, when making decisions regarding investing, spending, and management of the income and assets, including asset recovery:

• Give priority to the needs and preferences of the person

• Weigh the costs and benefits to the estate

• Apply state law regarding prudent investment practices.

Comment: Revise UGPPA §§ 418 and 425 accordingly.

Standard 4.9

The conservator shall take all steps necessary to obtain a bond to protect the estate, including obtaining a court order.

Comment: To be realistic, a mandatory bond provision should include court discretion to grant exceptions.

Standard 4.12

The conservator shall, as appropriate for the estate, implement best practices of a prudent conservator, including responsible consultation with and delegation to people with appropriate expertise.

Comment: Include these duties in UGPPA § 418.

5. Health Care Decision-Making

Standard 5.1

The guardian, in making health care decisions or seeking court approval for a decision, shall maximize the participation of the person.

Standard 5.2

The guardian, in making health care decisions or seeking court approval for a decision, shall:

(a) Acquire a clear understanding of the medical facts

(b) Acquire a clear understanding of the health care options and risks and benefits of each

(c) Encourage and support the individual in understanding the facts and directing a decision.

Standard 5.3

To the extent the person cannot currently direct the decision, the guardian shall act in accordance with the person’s prior directions, expressed desires, and opinions about health care to the extent actually known or ascertainable by the guardian; or, if unknown and unascertainable:

(a) Act in accordance with the person’s prior general statements, actions, values and preferences to the extent actually known or ascertainable by the guardian; or, if unknown and unascertainable,

(b) Act in accordance with reasonable information received from professionals and persons who demonstrate sufficient interest in the person’s welfare, to determine the person’s best interests, which determination shall include consideration of consequences for others that an individual in the person’s circumstances would consider.

In the event of an emergency, the guardian shall grant or deny authorization of emergency health care treatment based on a reasonable assessment of the criteria listed in Standard 5.2.

Comment: A new separate statutory section for health care decision-making standards is needed.

6. Residential Decision-Making

Standard 6.1

The guardian shall identify and advocate for the person’s goals, needs, and preferences. Goals are what are important to the person about where he or she lives, whereas preferences are specific expressions of choice.

• First, the guardian shall ask the person what he or she wants.

• Second, if the person has difficulty expressing what he or she wants, the guardian shall do everything possible to help the person express his or her goals, needs, and preferences.

• Third, only when the person, even with assistance, cannot express his or her goals and preferences, the guardian shall seek input from others familiar with the person to determine what the individual would have wanted.

• Finally, only when the person’s goals and preferences cannot be ascertained, the guardian shall make a decision in the person’s best interest.

Comment: These objectives should be covered in the omnibus decision-making standards in UGPPA §§ 314 and 418.

Standard 6.3

The guardian shall have a strong priority for home or other community-based settings, when not inconsistent with the person’s goals and preferences.

Comment: This standard is also appropriate for Practice and Education.

Standard 6.4

The guardian shall make and implement a person-centered plan that seeks to fulfill the person’s goals, needs, and preferences. The plan shall emphasize the person’s strengths, skills, and abilities to the fullest extent in order to favor the least restrictive setting.

Comment: This standard is similar to Standard 1.1. This standard is also appropriate for Practice and Education.

Standard 6.5

The guardian shall wherever possible, seek to ensure that the person leads the residential planning process, and at a minimum to ensure that the person participates in the process.

Comment: In lieu of adding this standard to the statute, the general decision-making standards in UGPPA §§ 314 and 418 could include examples of the types of decisions to which such standards apply (e.g., residential, financial). This standard is also appropriate for Practice and Education.

Standard 6.6

The guardian shall attempt to maximize the self-reliance and independence of the person.

Comment: This standard should be covered in UGPPA §§ 314 and 418.

Standard 6.7

The guardian shall seek review by a court or other court-designated third party with no conflict of interest before a move to a more restrictive setting.

Comment: This standard requires further discussion before a recommendation can be made.

Standard 6.8

The guardian shall monitor the residential setting on an ongoing basis and take any necessary action when the setting does not meet the individual’s current goals, preferences, and needs including but not limited to:

• Evaluating the plan; enforcing residents’ rights, legal and civil rights;

• Ensuring quality of care and appropriateness of the setting in light of the feelings and attitudes of the person; and

• Exploring alternative opportunities for long-term services and supports where necessary to better fulfill the person’s goals and preferences.

Comment: This standard requires further discussion before a recommendation can be made.

Recommendations

1. Overview of Guardian Standards

Recommendation 1.1

State statutes should set forth the mandatory duties of guardians. Court or administrative rules should set forth guardian standards.

Comment: This recommendation should be covered in UGPPA §§ 314 and 418.

Recommendation 1.3

State statutes should clearly express guardian duties and apply the duties to all guardians.

• These duties should be enumerated in a clear and succinct statement supplied to guardians at time of appointment.

• These duties should be enumerated in guardian training materials.

• The guardian must acknowledge, in writing, receipt of the information.

Comment: This recommendation should be covered in UGPPA §§ 314 and 418.

Recommendation 1.4

Every guardian should be held to the same standards, regardless of familial relationship, except a guardian with a higher level of relevant skills shall be held to the use of those skills.

Comment: This recommendation should be covered in UGPPA §§ 314 and 418. See Uniform Trust Code and Uniform Power of Attorney Act for similar constructs.

Recommendation 1.5

States should adopt by statute a decision-making standard that provides guidance for using substituted judgment and best interest principles in guardian decisions.

• These standards should emphasize self-determination and the preference for substituted judgment.

• The Uniform Guardianship and Protective Proceedings Act should be revised to embody these objectives.

Comment: This recommendation should be covered in UGPPA §§ 314 and 418.

Recommendation 1.7

Where possible, the term person under guardianship should replace terms such as incapacitated person, ward, or disabled person.

Comment: This recommendation requires further discussion.

2. Guardian’s Relationship to the Court

Recommendation 2.2

The court should issue orders that implement the least restrictive alternative and maximize the person’s right to self-determination and autonomy.

• The court should develop a protocol to obtain an accurate and detailed assessment of the person’s functional limitations.

• The court should conduct a factual investigation and review the assessment to determine the rights to be retained by the person and the powers to be granted to the guardian.

• The factual investigation may include contact with the person, interviews with interested persons and family members, and discussions with court-appointed attorneys and court evaluators or any other court representative.

Comment: Revise UGPPA §§ 311(b) and 409(b).

Recommendation 2.3

The court should monitor the well-being of the person and status of the estate on an on-going basis, including, but not limited to:

• Determining whether less restrictive alternatives will suffice

• Monitoring the filing of plans, reports, inventories, and accountings

• Reviewing the contents of plans, reports, inventories, and accounting

• Independently investigating the well-being of the person and status of the estate

• Ensuring the well-being of the person and status of the estate, improving the performance of the guardian, and enforcing the terms of the guardianship order.

Comment: Revise UGPPA §§ 317(c) and 420(d) to incorporate.

3. Fees

Recommendation 3.2

Guardians should be entitled to reasonable compensation for their services. The court should consider these factors in determining the reasonableness of guardian fees:

• Powers and responsibilities under the court appointment

• Necessity of the services

• The request for compensation in comparison to a previously disclosed basis for fees, and the amount authorized in the approved budget, including any legal presumption of reasonableness or necessity

• The guardian’s expertise, training, education, experience, professional standing, and skill, including whether an appointment in a particular matter precluded other employment

• The character of the work to be done, including difficulty, intricacy, importance, time, skill, or license required, or responsibility undertaken

• The conditions or circumstances of the work, including emergency matters requiring urgent attention, services provided outside of regular business hours, potential danger (e.g., hazardous materials, contaminated real property, or dangerous persons), or other extraordinary conditions

• The work actually performed, including the time actually expended, and the attention and skill level required for each task, including whether a different person could have better, cheaper or faster rendered the service

• The result, specifically whether the guardian was successful, what benefits to the person were derived from the efforts, and whether probable benefits exceeded costs

• Whether the guardian timely disclosed that a projected cost was likely to exceed the probable benefit, affording the court an opportunity to modify its order in furtherance of the best interest of the estate

• The fees customarily paid, and time customarily expended, for performing like services in the community, including whether the court has previously approved similar fees in another comparable matter

• The degree of financial or professional risk and responsibility assumed

• The fidelity and loyalty displayed by the guardian, including whether the guardian put the best interests of the estate before the economic interest of the guardian to continue the engagement

• The need for and local availability of specialized knowledge and the need for retaining outside fiduciaries to avoid conflict of interest.

Comment: Reduce recommendations to core principles and add these principles to UGPPA § 417 for conservators and construct a comparable section in Article 3 for guardians.

Recommendation 3.4

In the event estate funds are exhausted and the guardian has failed to address the anticipated exhaustion, the court is justified in requiring the guardian to remain serving at least until a succession plan is in place.

Comment: Consider adding a resignation provision to UGPPA Articles 3 and 4.

4. Health Care Decision-Making

Recommendation 4.1

State guardianship statutes should provide that valid health care directives that appoint a health care agent shall remain in effect unless the court determines that the agent is unable, unwilling, or unsuitable to perform the agent’s duties under the directive.

Comment: This recommendation should be included in a new UGPPA section on health care decisions. UGPPA § 316(c) should also be included in the new section.

Citations


1 For the history of the Uniform Law Commission (ULC), see Robert A. Stein, Forming a More Perfect Union: A History of the Uniform Law Commission (2013).

2 For an example of such influence, see Roger W. Andersen, The Influence of the Uniform Probate Code in Nonadopting States, 8 U. Puget Sound L. Rev. 599 (1985).

3 The text of this and all other uniform laws are available at the ULC website, http://www.uniformlaws.org (last visited Jan. 12, 2016).

4 See Unif. Guardianship & Protective Proceedings Act (UGPPA) prefatory note (1997). In this article, unless a citation is made to a specific section of a uniform act that was subsequently amended, uniform acts are cited by the date of their original approval, not by the date of the last section amended. If a particular section being cited has been amended, the date of the amendment is also shown.

5 David M. English & Rebecca C. Morgan, The Uniform Guardianship and Protective Proceedings Act (1997), 11(2) NAELA Q. 3, 4 (1998).

6 Fred Bayles & Scott McCartney, Guardians of the Elderly: An Ailing System, AP Special Report (Sept. 1987), reprinted as Appendix A to Abuses in Guardianship of the Elderly and Infirm: A National Disgrace, H.R. Comm. Pub. 100-639, at 13 (Dec. 1987), available at eric.ed.gov/?id=ED294080 (last visited Jan.12, 2016).

7 ABA Comm’n on the Mentally Disabled & ABA Comm’n on Legal Problems of the Elderly, Guardianship: An Agenda for Reform (1989), available at http://www.americanbar.org/content/dam/aba/uncategorized/2011/2011_aging_gship_agda_refrm.authcheckdam.pdf (last visited Jan. 12, 2016).

8 See generally English & Morgan, supra note 5, at 3.

9 “The court, whenever feasible, shall grant to a guardian only those powers necessitated by the ward’s limitations and demonstrated needs and make appointive and other orders that will encourage the development of the ward’s maximum self-reliance and independence.” UGPPA § 311(b) (1997).

10 Id. § 305(b) (amended 1998).

11 Id. § 314(a).

12 Id.

13 Id. For a discussion of this provision, see Lawrence A. Frolik & Linda S. Whitton, The UPC Substituted Judgment/Best Interest Standard for Guardian Decisions: A Proposal for Reform, 45 U. Mich. J.L. Reform 739 (2012). See also infra pt. III(C).

14 For the Second National Guardianship Conference recommendations, see Wingspan — The Second National Guardianship Conference, Recommendations, 31 Stetson L. Rev. 595 (2002). For an overview of the conference proceedings and the articles written as background for the conference, see A. Frank Johns & Charles P. Sabatino, Wingspan — The Second National Guardianship Conference, Introduction, 31 Stetson L. Rev. 573 (2002).

15 For the text of Recommendation 1, see Wingspan — The Second National Guardianship Conference, Recommendations, supra note 14.

16 For a list of the enacting jurisdictions, see ULC, Legislative Fact Sheet — Adult Guardianship and Protective Proceedings Jurisdiction Act, http://www.uniformlaws.org/LegislativeFact

Sheet.aspx?title=Adult%20Guardianship%20and%20Protective%20Proceedings%20Jurisdiction%20Act (last visited Jan. 12, 2016).

17 For the text of the standards and recommendations, see Third National Guardianship Summit Standards and Recommendations, 2012 Utah L. Rev. 1191. For an overview of the standards and recommendations, see Sally Hurme & Erica Wood, Introduction, 2012 Utah L. Rev. 1157. Several of the law review articles prepared as background papers for the various Summit working groups are cited later in this article. See infra notes 28, 39, 53, 73, 82, 95, 101, 134.

18 The NGN organizations at the time of the Summit were the AARP; ABA Commission on Law and Aging; ABA Section of Real Property, Trust and Estate Law; Alzheimer’s Association; American College of Trust and Estate Counsel; Center for Guardianship Certification; National Academy of Elder Law Attorneys; National Center for State Courts; National College of Probate Judges; and National Guardianship Association. Hurme & Wood, supra note 17, at 1166 n.60. The National Disability Rights Network has subsequently joined NGN.

19 Among these groups were the ABA Commission on Disability Rights, The Arc, and the Center for Social Gerontology, National Adult Protective Services Association, National Association of State Long-Term Care Ombudsman Programs, National Association of State Mental Health Program Directors, National Committee for the Prevention of Elder Abuse, National Disability Rights Network, and Bazelon Center for Mental Health Law. Hurme & Wood, supra note 17, at 1166 n.61.

20 The process by which the Summit was conducted is more fully described in Hurme & Wood, supra note 17, at 1166–68.

21 See infra pt. III(C).

22 ULC, Committees: Guardianship and Protective Proceedings Act, http://uniformlaws.org/Committee.aspx?title=Guardianship%20and%20Protective%20Proceedings%20Act (last visited Jan. 12, 2016).

23 For a summary of the developments described in this paragraph, see Erica F. Wood, Taking WING: Next Steps in Guardianship Reform, 23(2) Experience 4 (2013).

24 See National Guardianship Association Standards of Practice (4th ed. 2013), www.guardianship.org/documents/Standards_of_Practice.pdf (last visited Jan. 12, 2016).

25 See NAELA, NAELA Public Policy Guidelines: Guardianship (last revised July 14, 2012), http://www.naela.org/NAELADocs/PDF/Public%20Policy/GuidelinesJan2015/GuardianshipGuidelinesJan2015.pdf (last visited Jan. 12, 2016).

26 See Resolution 6, Encouraging Consideration of the Standards and Recommendations from the Third National Guardianship Summit (adopted July 25, 2012), http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252012-Encouraging-Consideration-of-the-Standards-and-Recommendations-from-the-Third.ashx (last visited Jan. 12, 2016).

27 Resolution 106B, which was approved by the House of Delegates at the 2012 ABA Annual Meeting, may be accessed by linking to http://americanbar.org/directories/policy and searching “2012 AM 106B” (last visited Jan.12, 2016).

28 The six states are Missouri, New York, Ohio, Oregon, Texas, and Utah. Wood, supra note 23, at 6. For the experience of the Ohio WINGS, which was the first, see Julia R. Nack, Carolyn L. Dessin & Thomas Scott, Creating and Sustaining Interdisciplinary Guardianship Committees, 2012 Utah L. Rev. 1667.

29 For further discussion of the role of WINGS, see Wood, supra note 23, at 4, 5–6.

30 Model Probate Code § 196(c) (1946), in Lewis M. Simes & Paul E. Basye, Problems in Probate Law 41, 190 (1946).

31 Unif. Probate Code § 1-201(7) (1969); UGPPA § 102(5) (1997).

32 Model Guardianship & Conservatorship Statute § 3(2) (1979), in ABA Comm’n on the Mentally Disabled, Guardianship & Conservatorship Statutory Survey & Model Statute 78, 79 (1979).

33 UGPPA § 102(15) (1997).

34 For examples of people-first language, see the online publication by the Pennsylvania Department of Education, Using People-First Language (Nov. 2010), http://www.directionservice.org/cadre/exemplar/artifacts/PA-264 People-First-Language Publication.pdf (last visited Jan. 12, 2016).

35 See Kenneth Jernigan, The Pitfalls of Political Correctness: Euphemisms Excoriated, Braille Monitor (Mar. 2009), http://nfb.org/images/nfb/Publications/bm/bm09/bm0903/bm090308.htm (last visited Jan. 12, 2016).

36 1993 S.D. Sess. Laws ch. 213, codified at S.D. Codified Laws § 29A-5 (2014).

37 Id. § 29A-5-102(9).

38 Id. § 29A-5-102(10).

39 For the article on the guardian’s relationship with the court prepared as a background paper for the Summit, see Mary Joy Quinn & Howard S. Krooks, The Relationship Between the Guardian and the Court, 2012 Utah L. Rev. 1611.

40 UGPPA § 317(a) (1997).

41 Id. § 317(a)(6).

42 Id. § 419(a).

43 Id. § 418(c).

44 Id. § 420(a).

45 Id. §§ 317(c) (guardians), 420(d) (conservators).

46 See also Sally Balch Hurme & Erica Wood, Guardian Accountability Then and Now: Tracing Tenets for an Active Court Role, 31 Stetson L. Rev. 867 (2002).

47 For a discussion of alternatives, see David M. English, Financial Decision-Making for Adults Lacking the Capacity to Make Their Own, 36(2) Generations 66, 71 (2014). A 2015 Texas enactment includes a nonexclusive list of alternatives: 1) execution of a medical power of attorney; 2) appointment of an agent under a durable power of attorney; 3) execution of a declaration for mental health treatment; 4) appointment of a representative payee to manage public benefits; 5) establishment of a joint bank account; 6) creation of a management trust; 7) creation of a special needs trust; 8) designation of a guardian before the need arises; and 9) establishment of alternate forms of decision-making based on person-centered planning. 2015 Tex. Sess. Law Serv. ch. 214, enacting Tex. Est. Code § 1002.0015 (2015).

48 UGPPA § 311(a)(1)(B) (1997).

49 Id. §§ 311(b) (guardians), 409(b) (conservators).

50 See infra pts. III(D)–(F).

51 See UGPPA § 317(a)(7) (1997).

52 Standard 1.1 requires that the guardian develop and implement a plan emphasizing a “person-centered philosophy.” Standard 6.4 requires that the guardian, when making residential decisions, “implement a person-centered plan.” Standard 6.5 requires that the guardian, “wherever possible, seek to ensure that the person leads the residential planning process ….”

53 See generally A. Frank Johns, Person-Centered Planning in Guardianship: A Little Hope for the Future, 2012 Utah L. Rev. 1541.

54 Numerous variations and different philosophies exist. See Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship, 117 Penn. St. L. Rev. 1111 (2013).

55 See Shih-Ning Then, Evolution and Innovation in Guardianship Laws: Assisted Decision-Making, 35 Sydney L. Rev. 133, 151–54 (2013).

56 See id. at 148–54.

57 Article 12(3) of the Convention provides: “States Parties shall take appropriate measures to provide access by persons with disabilities to the support that they may require in exercising their legal capacity.” See Michael L. Perlin, “Strikers for the Guardians and Protectors of the Mind”: The Convention on the Rights of Persons With Mental Disabilities and the Future of Guardianship Law, 117 Penn. St. L. Rev. 1159 (2013); Robert D. Dinerstein, Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons With Disabilities: The Difficult Road From Guardianship to Supported Decision-Making, 19(2) Human Rights Brief 8 (2012).

58 Possible safeguards are discussed in Then, supra note 55, at 160–62.

59 2015 Tex. Sess. Law Serv. ch. 214, amending and enacting numerous provisions in Tex. Est. Code §§ 1001, 1002, 1054, 1101, 1104, 1151, 1202, 1357.

60 Tex. Est. Code § 1002.0015(9) (2015).

61 Id. § 1101.101(a)(1)(E).

62 Id. §§ 1101.103(b)(6-a), 1202.151.

63 Supported decision-making is defined as follows: “A process of supporting and accommodating an adult with a disability to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, supports, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work, without impeding the self-determination of the adult.” Id. § 1357.002(3).

64 Id. §§ 1357.051–1357.053, 1357.055–1357.057.

65 Id. at § 1357.051.

66 Standards 5.2, 5.3 (health care decisions); 6.1 (residential decisions).

67 Standards 4.4 (financial decisions); 5.1, 5.2 (health care decisions); 6.1 (residential decisions).

68 Standards 4.2, 4.8 (financial decisions); 6.8 (residential decisions).

69 Standards 4.1, 4.3 (financial decisions); 6.6 (residential decisions).

70 Standard 4.5 (financial decisions).

71 For a discussion of the case law on the withholding or withdrawal of health care treatment, see David M. English, Defining the Right to Die, 56 Law & Contemp. Probs. 255 (1993).

72 Standard 5.3 (health care decisions). See also Standard 6.1 (residential decisions).

73 Recommendation 1.5. For a comprehensive discussion of the doctrine of substituted judgment, see Linda S. Whitton & Lawrence A. Frolik, Surrogate Decision-Making Standards: Theory and Reality, 2012 Utah L. Rev. 1491, one of the articles prepared as a background paper for the Summit.

74 Standard 4.8. The conservator must also consider current wishes, past practices, reliable evidence of likely choices, and best interests of the person. Standard 4.2.

75 UGPPA §§ 314(a) (guardians), 418(b) (conservators) (1997).

76 The alternative approaches are described in Kohn, Blumenthal & Campbell, supra note 54, at 1124–26.

77 UGPPA § 314(a) (1997).

78 Id.

79 See Frolik & Whitton, supra note 13.

80 Standard 1.3.

81 “Except as otherwise limited by the court, a guardian shall make decisions regarding the ward’s support, care, education, health, and welfare.” UGPPA § 314(a) (1997).

82 See supra pt. III(C). For the article on health care decisions prepared as a background paper for the Summit, see Kim Dayton, Standards for Health Care Decision-Making: Legal and Practical Considerations, 2012 Utah L. Rev. 1329.

83 Standard 5.1.

84 Standard 5.2(c).

85 Standard 5.3.

86 Standard 5.3(b).

87 Recommendation 4.1.

88 UGPPA §§ 310(a)(3) (guardians), 413(a)(3) (conservators) (1997).

89 Id. §§ 102(6), 304(b)(4), 309(b) (guardians); 102(6), 403(b)(6), 404(b) (conservators).

90 Id. §§ 316(c) (guardians); 411(d) (conservators).

91 Id. § 310 cmt.

92 Id. § 315(a)(2).

93 Id. § 314(b)(6).

94 Id. § 315(a)(2).

95 Standard 6.1. For the article on residential decisions prepared as a background paper for the Summit, see Naomi Karp & Erica Wood, Choosing Home for Someone Else: Guardian Residential Decision-Making, 2012 Utah L. Rev. 1445.

96 Standard 6.4. This standard is similar to Standard 1.1.

97 Standard 6.5.

98 Standard 6.3.

99 Standard 6.7.

100 Standard 6.8.

101 Standard 4.1. For the article on financial decisions prepared as a background paper for the Summit, see Robert B. Fleming & Rebecca C. Morgan, Standards for Financial Decision-Making: Legal, Ethical, and Practical Issues, 2012 Utah L. Rev. 1275.

102 Standard 4.3.

103 Standard 4.4.

104 Standard 4.5.

105 See UGPPA § 418(b) (1997).

106 Standard 4.8.

107 Standards 5.1–5.3.

108 Standard 6.1.

109 Recommendation 1.5.

110 For background on this Act, see John H. Langbein, The Uniform Prudent Investor Act and the Future of Trust Investing, 81 Iowa L. Rev. 641 (1996).

111 For background on this Act, see David M. English, The Uniform Trust Code (2000): Significant Provisions and Policy Issues, 67 Mo. L. Rev. 143 (2002).

112 For background on this Act, see Linda S. Whitton, Navigating the Uniform Power of Attorney Act, 3 NAELA J. 1 (2007).

113 Recommendations 1.1, 1.3.

114 UGPPA § 418(c) (1997).

115 Id. § 419(a).

116 Id. § 420.

117 Id. § 427.

118 Id. § 418(a).

119 For the obligation of a trustee to act with prudence, see Unif. Trust Code § 804 (2000).

120 See Unif. Trust Code §§ 801-817 (2000). See also David English, The Fiduciary Duties and Powers of a Trustee Under the Uniform Trust Code, 20 Trusts & Trustees 52 (2014).

121 The text of the predecessor Uniform Durable Power of Attorney Act is available at ULC, Acts: Durable Power of Attorney, http://uniformlaws.org/Act.aspx?title=Durable+Power+of
+Attorney (last visited Jan. 12, 2016).

122 See Linda W. Whitton, Durable Powers as an Alternative to Guardianship: Lesson We Have Learned, 37 Stetson L. Rev. 7, 23–34 (2007).

123 Standard 4.12.

124 UGPPA § 426 (1997).

125 Unif. Prudent Investor Act § 9 (1994).

126 Standard 4.7.

127 UGPPA § 423 (1997).

128 See Unif. Trust Code § 802 (2000) (amended 2004).

129 Standard 4.9.

130 See UGPPA § 415 (1997).

131 See Katherine Gorski, Conservatorship and Guardianship Bonds: State Statutory Requirements, 35 Bifocal 133 (2014), http://www.americanbar.org/publications/bifocal/vol_35/issue_5_june2014/conservatorship_and_guardianship_bonds.html (last visited Jan. 12, 2016).

132 See Nat’l Prob. Court Standards 3.3.15 (2013), http://ncsc.contentdm.oclc.org/cdm/ref/collection/spcts/id/240 (2013). The prior standards were adopted in 1993. Id. intro.

133 UGPPA § 417 (1997).

134 For a review of state statutes and rules on guardianship fees, see the article on guardianship compensation prepared as a background paper for the Summit: Catherine Seal & Spencer Crona, Standards for Guardian Fees, 2012 Utah L. Rev. 1575, 1604–1610.

135 The comment to UGPPA § 417 (1997) refers to factors listed in the Restatement (Third) of Trusts § 38 comment c (2003): “Among the factors listed are skill, experience and time devoted to duties; the amount and character of the property; the degree of difficulty; responsibility and risk assumed; the nature and cost of services rendered by others; and the quality of the performance.”

136 Recommendation 3.2.
137
Standard 3.1.

138 Standard 3.2.

139 UGPPA §§ 317 (guardians); 418, 420 (conservators) (1997).

140 Standard 3.2.

APPENDIX A

Third National Guardianship Summit Standards and Recommendations Relevant to Amending the Uniform Guardianship and Protective Proceedings Act