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The Case for Monitoring

Steve M. King, JudgeTarrant County Probate Court One

Fort Worth, Texas

A Demographic Imperative(1 of 2)

Increasing Longevity of Americans

Increasing incidence of Alzheimer’s

Increasing reports of abuse/ neglect/ exploitation

Increasing use of agency guardianships

Lack of willing/qualified family members

A Demographic Imperative(2 of 2)

Agency guardians with high caseloads and insufficient funding

Agency guardians making decisions about wards with little knowledge of their lives or values

Track record for courts in monitoring not particularly good

Newspaper series calling for increased vigilance in ensuring proper care and financial management

Shortcomings – endanger those under guardianship

– weaken public confidence in courts

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A Demographic Imperative

Monitoring of Guardianships must be done

Good News: S.1744 -- Guardian Accountability and Senior Protection Act– Filed October 20, 2011

– Funding to statesto assess and improve guardianship and conservatorship

to authorize pilot project for background checks

to promote technology for monitoring and reporting

Mandated Monitoring

� Texas Law: duty on Statutory Probate Courts (ten most populous counties) to affirmatively monitor status of Wards under Guardianship

� “Unfunded Mandate”

�Review every guardianship annually & determine whether to continue, modify or terminate

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The Ultimate Fiduciary

�Each Statutory Probate Judge (18 in all) must maintain a $500,000 bond

�Probate Judge is liable on his/her bond for loss of fiduciary assets resulting from gross negligence

�A real motivation for monitoring (!)

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Building a Monitoring Program (1 of 2)

1. Establish Your Criteria

2. Determine Funding Needs &

Sources

3. Adequate, Motivated Staff

4. Uniform Program Materials

5. Comprehensive Multi-Level Training

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Building a Monitoring Program(2 of 2)

6. Recruit Volunteers

7. Develop Collaborative Relationships

8. Use All Available Technology

9. Integrate Guardianship Monitoring into Court’s Overall Compliance Program

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1. Establish Your Criteria(1 of 2)

�Determine state law mandates

�Look at “Best Practices”

�Think through

• Program Launch

• Available resources

• Year-by-Year objectives

• Measuring progress

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1. Establish Your Criteria(2 of 2)

�Roles • visit incapacitated persons

• review records & audit accounts

• combination of both

�Duty Roster• create list of duties & responsibilities

�Minimum Commitment• e.g.: minimum of one year

• minimum number of assignments

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2. Determine Funding Needs(1 of 2)

– Staff time

– Supplies

– Office Space

– Furniture & filing cabinets

– Computers and Software

– Telephone Service

County is primary funding resource

Realistic look at budgetary needs

– Copying Capacity

– Postage

– Parking

– Mileage Reimbursement

– Liability Insurance

– Volunteer Recognition

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2. Determine Funding Needs

(2 of 2)

Other sources of financial or in-kind support

– United Way

– Local foundations

– Area Agency on Aging

– Faith-based organizations

– Colleges and Universities with Social Work, Nursing and Gerontology departments

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3. Adequate, Motivated Staff

In House - Court Investigator

– job duties already closely coincide with basics of guardianship monitoring

– could easily coordinate program

Outside Resources - Paid coordinator

– funded through grant or sponsorship from entity such as Area Agency on Aging

– working a limited number of hours per week to coordinate program

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3. Staff: Duties / Responsibilities

� Recruit / Screen volunteers

� Train volunteers

� Schedule volunteers

� Supervise volunteers

� Feedback on problems to court

� Recognize volunteers

� Track results & report on performance to court

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4. Uniform Program MaterialsUpdate regularly

Translate as appropriate

Focused Materials for:

- Judges- Court and Clerk Staff

- Counsel representing Guardians

- Ad Litems appointed by the Court

- Guardians (Person and Estate)

- Court Visitors

- Social Workers

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4. Materials - Standardized Forms

Pleadings, Orders, Reports, Accounts and other court documents = consistent treatment

Lowered preparation time = lowered expense

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5. Comprehensive Multi-Level Training

Judges

Clerk and Court Staff

Care Providers

Attorneys

Guardians

Volunteers

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5. Training: Judges

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5. Training: Staff

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5. Training: Care Providers

Social Workers, School District officials, Hospital Personnel & Nursing Home Staff

Focus on

�court’s role in dealing with its wards, and

� responsibilities of providers to the ward

� responsibilities to officers of the court - including court visitors

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5. Training: Guardians

� Classroom-style instruction – before court hearing on appointment

– Powerpoint & written materials

� Legal responsibilities

� Reporting requirements / failure to report

� Obtaining prior permission

� Q&A opportunity

� Receipt of written policies

� Personal information form (contact info)

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5. Training: Volunteers

� Overview of guardianship process

– obligations of guardians

– rights of incapacitated individuals

� Basic rules and definitions

� Ethics / liability / confidentiality

� Protocols for visits

� Physical & mental disabilities

� Recognizing abuse, neglect and exploitation

� Completion of reports

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6. Recruiting Volunteers

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6. Recruiting: Background

� 1990 National Guardianship Monitoring Project

• AARP Legal Counsel for the Elderly

� Funding from State Justice Institute

� Volunteers trained as "eyes and ears“ of the court

� Supported for seven years

� Projects in 55 courts nationwide

� 20 years later: >50% of programs still active

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6. Recruiting: Sources (1 of 2)

Publicity �Newspaper stories�Print and Internet�Radio & Television “PSAs”

Speak�Civic groups Rotary / Kiwanis/ Jaycees�Religious groups

Contact�AARP�United Way

Visit�Senior centers / Libraries / Congregate meal sites�Locations where older adults gather

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6. Recruiting: Sources (2 of 2)

College and Graduate Students �Law School

�Master’s Degree in Social Work

�Bachelor’s Degree in Social Work

Nursing Students – Newest innovation– Several Programs in development

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6. Recruiting: Screening (1 of 2)

�Different skills for different tasks

�Compassionate / passive, not active, role

�Keen diagnostic and observational skills

�More like a doctor in a clinic

�Audit volunteers - ‘number-crunching’ abilities � potential red flags

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� Develop screening protocols

�Who will do the initial interviewing

� Background checks - through your clerk’s office or their school

� Consider liability insurance

� Require proof of automobile liability insurance

6. Recruiting: Screening(2 of 2)

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6. Recruiting: Recognition(1 of 3)

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6. Recruiting: Recognition(2 of 3)

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6. Recruiting: Recognition(3 of 3)

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6. Recruiting: Continuous Effort

� Recruitment of volunteers is an on-going process

� No matter how well-conceived and executed

� all programs experience turnover

� Recruitment must be ongoing

� or the program will end

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7. Develop Collaborative Relationships

Stakeholder “Big Table” Meetings

– Court personnel

– Adult Protective Services

– Mental Health Authority

– Advocacy Groups

– Professional Guardians

– District Attorney

– Sheriff

– County Hospital

– Social Service Agencies

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7. Collaborative Relationships: Stakeholder Meetings

• Share / Address areas of mutual concern

• Seek varied input

• Dispel misconceptions

• Facilitate problem-solving

• Policy incubation

• Legislative initiatives

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7. Collaborative Relationships: Outside Resources

National organizations to assist programs involving potential wards

Includes – American Association of Retired Persons

– National Center on Elder Abuse

– National Center on Law and Aging (NCSC)

– National College of Probate Judges

– ABA Commission on Law and Aging

– American Psychological Association

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7. Collaborative Relationships: Educate Funders

� Regularly educate governmental leaders (all levels)

� Constituent (taxpayer) service

� Compliance with Legislative Mandate

� Bulk of funding reimburses volunteer parking & mileage

�Monitoring helps prevent further expenditures: � emergency medical services

� social services

� mental health services

� and criminal justice expenditures

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8. Use of All Available Technology

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8. Technology:Reluctance to Change?

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8. Technology:Court Database

Microsoft Access–Separate visitor files maintained –Ability to “slice and dice” info –Customize Reports–(Budget tool)

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8. Technology:Website

Knowledge Base of Court Policy

Repository for forms

Training Materials

Pages and Links: – Local organizations

– “Seniors and the Law”

– “How to Get a Mental Commitment”

– “Medicaid Estate Recovery”

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8. Technology:E-Mail

Notices/ Confirmations/ Correspondence

Setting/ Confirmation of hearings

Consider E-filing

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8. Technology:Powerpoint

�“Write Once, Read Many Times”

�Consistent Presentation

�Easily Adaptable / Updatable

�One presentation may be built on another

�Knowledge bank

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8. Technology:Spreadsheets

Use electronic spreadsheet in Auditing

– transition audit files to electronic records

Develop capacity to identify "red flags“

• Greatly increased spending

• Numerous cash withdrawals

• Failure to balance

�trigger further investigation and action

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8. Technology:E-Filing

Electronic filing

– Local vs. Statewide

Usage

– Permissive vs. Mandatory

Financing

– One-time Fee vs. Per Use Fee

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8. Technology:PDAs in the Field

�Capture and record data electronically

• Laptop

• Tablet PC

• Smartphone

�Forms for consistent data storage & retrieval

�Upload or transmit to court

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8. Technology:Visitor Files (1 of 2)

�Separate Visitor files for each Ward

�Volunteers can check out files for visits, (unlike Clerk’s files) – more secure

�Create Electronic Files

�Accessible during visit

�Reports completed electronically

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9. Integrate Guardianship Monitoring into Court’s Overall

Compliance Program

Compliance Review: “The Main Thing”

– Court’s responsibility of monitoring Guardians

– Ensure compliance with law and court polices

– Duty existed long before “monitoring”

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9: Integrate: Visit Conducted

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9: Integrate: Visitor Completes Report

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9. Integrate: Systematic Review & Audit

Review all reports

Compare with previous reports

Scrutinize financial dealings

Verify existence (non-existence) of assets

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9: Integrate: Habitual Review

Time-Consuming & Frustrating, but crucial

Clear, well-communicated policy

Advance education re: consequences of failure to comply = best preventative

Court Visitor reports = check / balance on Guardian’s reports

Additional visits / investigations ordered as needed

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9: Integrate: Act on Report

‘Redemptive’ rather than ‘punitive’ approachUnannounced visitCourt Investigator recommendationsChambers conference with counselGuardian ad litem to investigate and make recommendation Referral to APS for possible interventionShow Cause citation: removal/ fine/ surchargeIncrease BondRemove guardian w/o notice & appoint Successor (emergency only)

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9: Integrate: Referrals as Appropriate

Criminal charges

Adult Protective Services

Social Security Administration

Veteran’s Administration

State Bar Disciplinary Authorities

MHA Ombudsman

Local Mental Health Authority

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“People will not always do what you expect -

But they will do what you inspect.”

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Safeguarding the Assets

of Vulnerable Persons

Under Court Jurisdiction

through electronic filing and monitoring

Fiduciary

Suspended lawyer faces lawsuit in a conservatorship case

Misappropriation charged in conservatorshipApr. 16, 2013

“…paid himself $50,400 without court approval from the estate of a nursing home resident who had been entrusted to his care.”

Former conservator of mentally challenged couple admits to sexual battery, theftJan. 29, 2013

“…“…“…“…conservator of a mentally challenged couple. He admitted to sexual battery on the woman and theft of $105,479 from both of them.

Unfit to be lawyer, yet a guardian for Unfit to be lawyer, yet a guardian for Unfit to be lawyer, yet a guardian for Unfit to be lawyer, yet a guardian for 200200200200March 16, 2011

“…charged with bilking 10 vulnerable adults, shows the flaws in selecting and monitoring conservators.”

Missing Money, Unpaid Bills and Forgotten ClientsMissing Money, Unpaid Bills and Forgotten ClientsMissing Money, Unpaid Bills and Forgotten ClientsMissing Money, Unpaid Bills and Forgotten ClientsNovember 15, 2005

“…had failed to account for more than $1 million of her clients' money.”

Conservator Accused of Mishandling Vet’s Finances QuitsConservator Accused of Mishandling Vet’s Finances QuitsConservator Accused of Mishandling Vet’s Finances QuitsConservator Accused of Mishandling Vet’s Finances QuitsAugust 1, 2013

“…has given up his caseload after an investigation was launched into his handling of a veteran’s finances

Caregiver accused of stealing from elderly womanCaregiver accused of stealing from elderly womanCaregiver accused of stealing from elderly womanCaregiver accused of stealing from elderly womanJuly 4, 2012

“…stealing nearly $200,000 from her over the course of two years, officials said.”

Minnesota Judicial District and County Map

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� Approximately 10,500 conservators

�Currently over $625 million assets under court jurisdiction

◦Does not include real estate� Accounts range from <$3,000 to >$11 mill

� Average value of an estate $101,000

� 39% of accounts have <$10,000

�CAMPER implementation�CAMPER issues� Funding�Envisioning�RFP�Design, Development and Testing�Deployment

� Conservator Account Monitoring, Preparation, and Electronic Reporting Program (CAMPER) began in Ramsey County (St. Paul) 2005

◦ Court staff spending too much time “doing the math”

◦ Based on Ramsey County success, adopted for statewide use

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� Documented all issues reported by Conservators and Court staff

� Examples:

◦ Could not extract data

◦ Does not allow preview prior to filing unless account balances

� Forces conservators to fake the balance just to preview account

◦ Amended accounts difficult to track

◦ Design complicated and difficult for conservators to understand

◦ Successor conservators do not have access to past accounts

◦ Co-conservators cannot both connect to account if not set up initially together

� Paper process made electronic

� Inexpensive - so no bells or whistles

� Applied for SJI grant April, 2012

� The over-arching goal of the project is to design and deploy an advanced online reporting system with more robust monitoring and auditing tools to better meet the needs of the court supervising conservatorship cases and more effectively safeguard the assets of protected persons.

� Three day session July 2012

� Stakeholder Participants

◦ Conservators

� Professional and Individual

◦ Information Technology staff

� Case Management integration specialists

� IT Project Manager and staff

◦ District Court Staff

◦ Auditors

◦ State Business Process Team member

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� Project RFP Developed September 2012

� RFP Published October 8, 2012

� Project Bids Submitted November 9, 2012

� Selected the Nerdery End of Nov, 2012

� Began program development January 2013

� Nerdery testing September to October 2013

� Court testing November to December 2013

� Application will go live January 2014

� Features:◦ E-file of inventory and accounts◦ Integration with current court management system

� Reduce document processing time

� Provide system reminders to conservators◦ Red Flag logic◦ Audit features◦ Ability to amend (with administration approval)◦ Help Videos and help text within program◦ Reports

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� Administrative adjustment

� Not based on any statistical evidence (there isn’t any)

� Based on limited audit experience and research from other states

� We will need to monitor and evaluate as more data is entered into MMC

� Improve audit program by system identification of issues

� .NET 4.5

� SQL Server 2012

� Windows server 2008 R2

� HTML/CSS

� JavaScript

� Inventory and Accounts filed through integration

� Events added and reviews completed automatically in case management system

� Court staff account examination creates the report and files in case management system

� Referral for audit available for court staff

� Automated reminders available for court staff and conservator

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� Review account form and categories

◦ Standardize account form

◦ Standardize category selections

� Review and develop best practices

◦ Conservators

� Spending limits with or without court approval

� Determine if conservator fees can be set

� Account limits for audit/under court control (protected account)

� Standardize anniversary date

� Develop consistent business practices

◦ Court Staff

� Bonds

� Judgments

� Case processing

� Social Security Rep Payee

▶Center for Elders and the Courts � http://www.eldersandcourts.org

▶NCSC� http://www.ncsc.org/Topics/Children-Families-and-Elders

▶SJI Grants� http://www.sji.gov/grants.php

▶CAAP� http://www.mncourts.gov/conservators

▶MMC� http://www.mmc.courts.mn.us

This presentation was developed under grant number SJI-12-N-128 -from the State Justice Institute. The points of view expressed are those of the State of Minnesota and do not necessarily represent the official position or policies of the State Justice Institute.

Cate Boyko, CAAP Manager

(763) 279-0162

7533 Sunwood Drive NW,

Suite 306

Ramsey, MN

Cate.Boyko@courts.state.mn.us

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2 April, 2014 Mrs. P.A.M. Penders, Master of Law 76

Ellen Penders,

Vice-President

Court of ’s-Hertogenbosch

The Netherlands

3rd World Congress on Adult Guardianship

Crystal Gateway Marriott Hotel

Arlington, Virginia

May 2014

0 500000 1000000 1500000 2000000

More than 1,000.000 Euro

500,000 - 1,000,000 Euro

200,000 - 500,000 Euro

100,000 - 200,000 Euro

50,000 - 100,000 Euro

20,000 - 50,000 Euro

10,000 - 20,000 Euro

5,000 - 10,000 Euro

0 - 5,000 Euro

Less than 0 Euro

2008

2012

Source: CBS, 2014

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Dutch household assets

2 April, 2014 Mrs. P.A.M. Penders, Master of Law

Number of guardianships

2 April, 2014 Mrs. P.A.M. Penders, Master of Law 78

Source: Y.W.H. Penders, 2013

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Number of errors in inventories

2 April, 2014 Mrs. P.A.M. Penders, Master of Law 79

Source: Y.W.H. Penders, 2013