NATIONAL COLLEGE OF PROBATE JUDGES FALL CONFERENCE PONTE

NATIONAL COLLEGE OF PROBATE JUDGES FALL CONFERENCE PONTE VEDRA, FLORIDA NOVEMBER 16, 2017 LEGISLATIVE TRENDS AFFECTING PROBATE COURTS: BALANCING THE NEED FOR AND IMPACT OF “RIGHT TO ASSOCIATION” LEGISLATION FOR THE PROTECTION OF VULNERABLE INDIVIDUALS Terry W. Hammond Chair, National Guardianship Association State Affairs Committee Guardianship Attorney Brazos County Courts at Law Brazos County, Texas (979) 361 -4488 THammond@brazoscountytx. gov

OBJECTIVES Who wants it and why? Options and Alternatives Enactments Is it needed? Templates

PROPONENTS Kasem Cares Catherine Falk Organization www. kasemcares. org www. catherinefalkorganization. org National Association to Stop Guardianship Abuse www. stopguardianabuse. org Boomers Against Elder Abuse www. facebook. com/boomersbewa re facebook. com/boomersbeware

Guardian Abuse PROTECTION: From being pulled into unwanted GUARDIANSHIP/CONS ERVATORSHIP!!!! How to Protect yourself from accidentally being pulled into the guardianship gulag. Good Law – Gone Bad

DISENGAGED COURT ARBITRARY GUARDIAN ISOLATION = ABUSE HARM TO PERSON

Is Elder Guardianship A New Form Of Human Trafficking? (9/13/2016 Huffingtonpost. com) t c e t o r P o t Eight Ways r e d l E t s n i a Yourself Ag e s u b A l a i c n Fina 7 1 0 2 , 1 1 y r a u (Jan USA Today)

Calls for Court Reform as Legal Guardians Abuse Older Adults (July 28, 2017 The New York Times, By Susan B. Garland)

Is the Adult Guardianship and Probate Court System Being Used to Exploit Elderly People for Profit? (Oct 10, 2017 The Root. com) Who’s Guardian Against The Guardians? (October 5, 2017 On. Point )

How the Elderly Lose Their Rights – Guardians can sell the assets and control the lives of senior citizens without their consent – and reap a profit from it. (October 9, 2017 The New Yorker, By Rachel Aviv)

ISSUES: 1. Need for Legislation 2. Focus on Relatives v. Protected Person 3. Impact/Stress on Person/Guardian/Court 4. Opt Out/Opt In 5. Costs/Fiscal Note 6. Post-Hearing Counsel

FALK/NASGA BILL • • • Arizona Connecticut (Introduced) Hawaii Indiana (Introduced) Nevada New York Pennsylvania (Introduced) Rhode Island South Dakota Tennessee Virgin Islands Washington

KASEM BILL • • • Alabama Arkansas California Iowa Louisiana Nebraska Texas Virginia Wisconsin

KASEM CARES & FALK/NASGA • • • Both Arizona Illinois Iowa Tennessee Utah • • Neither Florida Ohio Oregon West Virginia

COURT ORDER REQUIRED TO RESTRICT VISITATION • • • California Connecticut Iowa Pennsylvania New Jersey South Dakota Tennessee Utah Virgin Islands Washington

MIDDLE GROUND • • • Alabama Arizona Rhode Island Texas West Virginia

GUARDIAN HAS DISCRETION • • • Florida Hawaii Illinois Indiana Louisiana New York Ohio Virginia Wisconsin

COLORADO • . . . "shall not" restrict a protected person's right of communication, visitation, or interaction with 'other persons'. . “. . . would eliminate any discretion on the part of the conservator. ” • "May presume protected person's consent. . “ • "With good cause, a guardian my move the court to restrict. . . “ • 5 factors considered to order restriction – 1) prior protective orders, 2) whether person chard with abuse/neglect/exploitation of person, 3) person’s expressed desire to/not to communicate/visit/interact, if person unable to communicate, existence of living will, DPOA, or advance directive contain preference, and 5) other factors deemed relevant by court. • Before Order - lesser restrictions • "Any person" may move Court to require access, restrict access, modify guardian's duties, remove guardian • Emergency hearing • Sanctions - Court may award costs/fees - not from protected person; appropriate monetary

COLORADO • Guardian shall promptly notify closest family member (spouse/partner in civil union, adult child, parent, adult in nearest kinship - excluded guardian), all persons of court record, and any other person designated by the protected person og • 1. Changes residence, including change to/from nursing home or assisted care facility to/from another nursing home/assisted care facility • 2. Resides at a location other than residence for > 7 days • 3. Admitted to medical facility for acute care/emergency • 4. Death * Does not apply if person informs guardian in writing does not want notice, or court order prohibiting guardian from providing notice *Emergency enactment

NATIONAL GUARDIANSHIP ASSOCIATION STANDARDS OF PRACTICE www. guardianship. org/standards • 4. The Guardian’s Relationship with Family Members and Friends of the Person - "shall promote social interactions and meaningful relationships consistent with the preferences of the person"/"shall encourage and support the person in maintaining contact with family and friends. . . unless it will substantially harm the person. " • 6. Informed Consent • 7. Standards for Decision. Making • 8. Least Restrictive Alternative • 9. Self-Determination of the Person • 10. The Guardian’s Duties Regarding Diversity and Personal Preference of the Person

NATIONAL GUARDIANSHIP ASSOCIATION POSITION STATEMENT www. guardianship. org/wp-content/uploads/2017/07/Right-to-Association-Position-Statement-9 -20 -17. pdf • Standards of Practice/encourage adoption of standards • Certification of Guardians • Substantial Harm Requirement • Guardians need discretion • Supports necessary legislation/avoid adverse consequences • Notice requirement may be too broad • Sanctions/penalties

ALASKA STAT. § 13. 26. 001 It is the policy of the state that all guardians and conservators, when making decisions for their wards or protected persons, shall abide by the highest ethical standards of decision making and shall consider the standards of practice adopted by the department by regulation. The department shall adopt standards of practice for guardians and conservators and, before doing so, shall review the standards of practice adopted by a national organization with expertise in the area of standards of practice for guardians and conservators, such as the National Guardianship Association.

North Dakota Guardianship STANDARDS OF PRACTICE for ADULTS All NDG standards apply to professional guardians, corporate guardians or family guardians unless otherwise indicated. Adapted with permission from the National Guardianship Association

New Hampshire Administrative Order 16 The requirements for certification as a professional guardian are: 1. Be a national certified guardian or national master guardian with the Center for Guardianship Certification (CGC) and maintain this registration as required by CGC or its successor organization. 2. Be a resident of the state of New Hampshire or have a resident agent. 3. Adhere to the Standards of Practice published by the National Guardianship Association (NGA) or its successor organization.

NGA Standards in Other States Arizona Ohio California Oregon Florida Texas Illinois Utah Minnesota Washington New Hampshire

State Guardianship Associations Alaska Kentucky Arizona Massachusetts North Dakota California Michigan Ohio Colorado Minnesota Oregon Florida Missouri Tennessee Iowa Nevada Texas Idaho Washington North Carolina New Jersey

WINGS Working Interdisciplinary Networks of Guardianship Stakeholders Alabama Michigan Alaska Mississippi D. C. New York Florida North Carolina Minnesota Idaho Ohio Wisconsin Indiana Oregon Texas Utah Washington

New York Order of Appointment shall identify the persons entitled to receive notice of the incapacitated person's death, the intended disposition of the remains of the decedent, funeral arrangements and final resting place when that information is known or can be reasonably ascertained. Order of appointment may identify the person or persons entitled to notice of the incapacitated person's transfer to a medical facility. Order of appointment may identify the persons entitled to visit the incapacitated person, if they so choose. However, the identification of such persons in the order shall in no way limit the persons entitled to visit the incapacitated person.

Illinois Unless there is a court order to the contrary, the guardian, consistent with the standards set forth in subsection (d) of this section, shall use reasonable efforts to notify the ward's known adult children, who have requested notification and provided contact information, of the ward's admission to arrangements for the disposition of the ward's remains. If a guardian unreasonably prevents an adult child of the ward from visiting the ward, the court, upon a verified petition by an adult child, may order the guardian to permit visitation if. . . in the ward's best interests. In making its decision the court shall consider the standards set forth. . Does not apply to public guardian or Office of State Guardian.

Texas Estates Code § 1051. 103 – citation served on incapacitated person’s parents and spouse must contain a statement notifying the relative that, if a guardianship is created, the relative must elect in writing in order to receive notice about the incapacitated person under § 1151. 056(a) – Guardian’s duty to inform “relatives” of incapacitated person’s health; Relatives required to be notified – spouse, siblings, parents, kids • • Relative has no protective order from IP against them Relative has no validation of abuse, exploitation or neglect Relative has filed election to receive notice Unless guardian seeks court order to relieve that duty

Texas § 1151. 056(h) – For cases established prior to 9. 1. 17 or that were pending on 9. 1. 17 One-time notice to be sent to certain relatives as soon as possible but not later than 9. 1. 19 Guardian shall provide notice to spouse, parents, siblings and kids, who can reasonably be located, that relatives must elect in writing in order to receive notice about changes in the incapacitated person’s health and residence

NGA State Affairs Committee • Legislation • Adoption of Standards of Practice/Ethical Principles • Formation/Collaboration w/ State Guardianship Associations • National/State Conference Speaking/Exhibits

NATIONAL COLLEGE OF PROBATE JUDGES FALL CONFERENCE PONTE VEDRA, FLORIDA NOVEMBER 16, 2017