Incapacitated, Indigent, and Alone: Meeting
Guardianship and Decision Support Needs
in New York
Pamela B. Teaster, Erica F. Wood, John N. Holt, Kimberly S. George
Report to the New York Community Trust
NOVEMBER 30, 2018
Pamela B. Teaster, PhD
Professor and Director, Center for Gerontology, Virginia Tech
Erica F. Wood, JD
Assistant Director, American Bar Association Commission on Law and Aging
John N. Holt, JD
Director of Legal Services and Policy
The Guardianship Project at the Vera Institute of Justice
Kimberly S. George, MIA
Executive Director
The Guardianship Project at the Vera Institute of Justice
3
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Executive Summary 5
Section 1. Introduction 13
Section 2. Methods 19
Section 3. Who Needs Services? 22
Section 4. Who Serves as Guardian? 33
Section 5. New York Court Processes: Barriers to
Eective Service and Oversight 48
Section 6. The National Landscape: Public
Guardianship and Decision Making Services 60
Section 7. The TGP Model—Sta and Stakeholders’
Assessment of Eectiveness and Replicability 71
Section 8. Summary of Recommendations 95
References 100
Appendices 101
Contents
We acknowledge the assistance of Fatemeh Zarghami
and Yuxin Zhao, graduate research assistants, at Virginia
Tech.
We also thank Jacqueline Baillargeon, former executive
director of The Guardianship Project.
The Center for Gerontology serves as the organiza-
tional unit and focal point for aging-related activities at
Virginia Polytechnic Institute (Virginia Tech). The center’s
primary mission is to foster and facilitate multidisci-
plinary research that enhances the quality of life of older
adults. In support of this mission, the center focuses
primarily on three streams of coordinated research:
Family Gerontology, Health and Aging, and Elder Rights.
Although the center is part of the College of Liberal Arts
and Human Sciences, it has a university-wide purview,
with more than 80 faculty aliates representing seven
colleges and 28 departments or units across campus.
The mission of the American Bar Association Commission
on Law and Aging is to serve as a collaborative, interdis-
ciplinary leader of the association’s work to strengthen
and secure the legal rights, dignity, autonomy, quality
of life, and quality of care of aging persons.
Acknowledgements
Disclaimer
The views expressed herein have not been approved by the House
of Delegates or the Board of Governors of American Bar Association
and, accordingly, should not be construed as representing the policy
of the American Bar Association.
5
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Executive Summary
In 2005, the Vera Institute of Justice (Vera) and New
York State’s Oce of Court Administration launched
The Guardianship Project (TGP) to serve as court-ap-
pointed agency guardian to a vulnerable, largely indi-
gent population—elders and persons with disabilities
lacking family or other support—enabling them to live
as independently as possible. In launching TGP, Vera
sought to cast a spotlight on a desperately missing
element of the social safety net and to provide an
approach that humanely addressed critical needs for
individuals in a way that allowed key institutions to
operate in concert and more eectively.
TGP oers a comprehensive guardianship model
available in New York City and employs attorneys,
social workers, and nancial and property managers
and partners with investment advisors, volunteers
and, when necessary, pro bono counsel, to provide
guardianship services for those under its care. TGP’s
clients are referred to the program due to a wide variety
of issues, including dementia, serious medical prob-
lems, pending evictions, elder abuse, and placement
in institutional settings against their will. As of 2018,
TGP serves 180 clients year-round.
The question is: what happens to other individuals
in New York City and New York State who are indi-
gent, whom the court determines are “incapacitated,”
and who have no one to serve—individuals who are
among the neediest in society, who may be taxing
to serve, and whose voice is not heard. With a rising
population of older persons, increasing dementia,
increasing longevity for individuals with disability, and
a likelihood that family members will be spread out
geographically, there is a continued and escalating
need for guardians as well as other decisional options.
This study aimed to analyze ways to increase and
improve guardianship and decision support services
for this challenging and often overlooked population—
people, formerly called “unbefriended” individuals, who
are alone, with no one to help, and few or no resources.
The study objectives were to: (1) document the need
for guardianship and decision support services for
the population, (2) assess the current local and state
ability to meet that need, (3) understand the best prac-
tices of states providing comparable guardianship and
decision support services, (4) assess the TGP model of
guardianship to ascertain if it is an appropriate model
for expansion to meet the increased need in New York
City and in other parts of the state, and (5) highlight
barriers in court guardianship processes in New York
City and state and improvements that might be made.
6
Who needs
guardianship and
decision support
services?
While data are lacking, our study’s surveys and interviews
uncovered a compelling and undeniable unmet need
for guardianship and related services for individuals
in New York who are indigent, have been named by a
court as “incapacitated,” and who have no one to serve.
1
The cases are often urgent and concern the needi-
est in our society, with an alarming mix of Medicaid,
housing, mental health, long-term care, and social
services issues—frequently with no one to help. The
need is especially intense for nursing home residents
and for individuals at risk of eviction from housing.
Guardianship databases would help to conrm, clarify,
and focus the unmet needs and suggest solutions.
Clearly, there is great and equal demand for more
available and skilled guardians and for more atten-
tion to less-restrictive options—as well as a greater
emphasis on the social work skills required to sort
out the pressing human needs.
The cases are often urgent
and concern the neediest in
our society—frequently with
no one to help.
1 Unless New York City is specied, “New York” refers to the state throughout this report.
In response to these ndings, our study makes the
following recommendations:
•
Data. New York should continue and intensify
its collection of basic guardianship data to better
inform estimates of unmet need and strategies
for meeting the need.
• Supportive services. New York should provide
adequate funding for home and community-based
care and aordable housing for indigent individuals
at risk of, or subject to, guardianship—especially
congregate housing for older adults where people
can age in the community and easily access support
services.
•
Social work skills. New York should nd ways to
increase the number of professionals with social
work and nursing skills to act as guardians for
individuals with no family or friends to serve.
•
Less-restrictive options. New York should provide
judicial and legal training on screening for less-re-
strictive options—including a range of decision
supports and supported decision making, the
use of forms that emphasize screening for such
options, and tracking the use of these options in
avoiding unnecessary appointments.
•
Restoration of rights. New York court procedures
should ensure access for petitions for modica-
tion or termination of guardianship orders and
restoration of rights when guardianship is not
needed.
• Increased number of clerks. New York should
provide funding for an increased number of
clerks to assist judges with the high volume and
complexity of guardianship cases.
7
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
•
Increased number of guardians. New York should
pursue multiple approaches toward increasing
the number of available and skilled guardians to
serve indigent individuals in need as a last resort
after less-restrictive options, including supported
decision making, have been examined.
Who serves as
guardian for the target
population?
New York has four “guardian of last resort” schemes
for individuals who are indigent, have beenjudicially
deemed “incapacitated”, and who have no family or
friends to serve. Each contributes to meeting the need
for these persons in important ways. Each is stretched.
Taken together, they fall markedly short of meeting
the compelling need.
New York law and regulations provide for local
commissioners of social services to act as the guardian
of last resort. In some but not all areas of the state, the
commissioner names adult protective services (APS) to
fulll guardianship responsibilities. APS guardianship
practices vary throughout the state. However, APS
as guardian is clearly a conicting role because APS
is responsible for petitioning for guardianship. APS
also is responsible for investigating reports of abuse,
neglect, and nancial exploitation—although in practice,
APS generally does not investigate suspected abuse
by guardians, thus barring an essential safeguard.
Additionally, APS sta often are overburdened, and
the system is underresourced.
New York law also provides for community guardian
programs funded by local social services oces. New
York City has three such programs. Community guardian
programs must relinquish cases when a person enters
a nursing home or similar residential facility, leaving
a serious and sometimes life-threatening void where
there is no one to make health and personal decisions
and oversee facility care. Moreover, the programs are
overwhelmed with cases.
New York Judicial Rules, Part 36, provides for appoint-
ments by the court, including appointments of guard-
ians. The Part 36 list is predominantly composed of
lawyers, whereas it is often social work skills that are
needed. Additionally, the number of professionals on
the list willing to serve as guardians (as opposed to
court evaluators, court examiners, or other roles) has
dwindled. Many cannot aord to take no-fee/low-fee
cases because of the enormous complexity and time
intensity required. Even though the cap on compen-
sation recently was raised, judges cannot rely on the
list to fully meet the growing number of cases.
New York has scattered not-for-prot agencies that
take guardianship cases, generally using meager funds
from the estates or small Medicaid-exempt stipends. Such
agencies are vastly underfunded to serve as guardian
and do not exist throughout the state. Individuals we
interviewed agreed that funding for additional nonprots,
especially those with a multidisciplinary team model,
would help to staunch the unmet need.
There was widespread recognition by those we
surveyed and interviewed that there is a marked
need for increased funding to provide for guardians
in low-fee/no-fee cases where there is no one else
to serve. Many, but not all, supported a statewide
public guardianship system with exibility to meet
local needs. Two pilot programs are underway, and
evaluation of their experiences will oer critical input
toward addressing the unmet need in other areas of
the state.
8
There is a marked need for
increased funding to provide
for guardians in low-fee/
no-fee cases where there is no
one else to serve.
In response to these ndings, our study makes the
following recommendations:
•
Funding for diversity of services. New York
should provide additional funding for a diverse
pool of guardianship and decision support services.
Funding for such services should prioritize living in
the community as a primary goal. Funding should
come from a variety of sources, including fees
excluded from the calculation of Medicaid “net
available monthly income” payment in nursing
home cases.
•
APS role in guardianship. New York should iden-
tify other approaches for guardianship services
instead of relying on APS through departments of
social services to serve as guardian of last resort.
This would avoid an inherent conict of services.
Additionally, it could free up APS resources for
its other important protective roles, including a
critical role in investigating suspected guardian-
ship abuse.
•
Community guardian programs. New York City
and/or state should provide additional funding to
community guardianship programs to meet the
pressing needs, ensure quality services, and seek
less-restrictive options, with consideration to a
reasonable sta-to-client ratio (as recommended
by the national public guardianship study by Teaster
et al. (2010)).
•
Guardianship for nursing home residents. While
recognizing that not all nursing home residents
need guardians, at the same time, New York should
address the current gap that occurs when commu-
nity guardian programs must relinquish cases in
which an individual requires nursing home care.
Guardians can be needed advocates for quali
-
ty of care. Extending the role of the community
guardian programs to selected nursing home cases
would prevent unnecessary burden on the court
in nding another guardian and ensure continuity
in the guardian’s care and decision making—thus
allowing the guardian to best identify and support
individual wishes and needs.
•
Incentives for serving in low-fee/no-fee cases.
New York should provide incentives such as free
continuing education courses for professionals
on the Part 36 list, provide incentives for social
workers and nurses to agree to serve as guard-
ians in low-fee/no-fee cases, and encourage their
appointment by judges in appropriate cases where
there is no less-restrictive option.
•
Evaluation and expansion of pilot projects. New
York should continue the two 2018–2019 pilot
programs to allow for additional time to measure
eectiveness. Based on experience of the initial
pilot demonstration projects, New York should
fund additional projects, building in a formative
evaluation process and moving toward addressing
the unmet need for guardianship and less-restrictive
decisional options, including supported decision
making, throughout the state.
9
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Do New York court
processes act as
barriers to eective
service and oversight?
Complicating attempts to address unmet needs are
barriers in court guardianship processes that may
needlessly hamper eorts to get people the help they
need. In the development of Article 81, maximizing
self-determination and expediting guardianship cases
were both prominent features. While it is important
to comply with time deadlines set out in the law, it is
also important to focus on the individual and support
his or her rights. The balance may be challenging. Our
study examined issues of timing in court processes and
in the monitoring to identify solutions that streamline
procedures yet preserve rights.
A study in 14 counties by the Brookdale Center for
Healthy Aging at Hunter College found that, on average,
it takes 211 days—signicantly longer than the Article
81-mandated 50 days—from the ling of a petition
for guardianship to the commissioning of a guard-
ian. Guardianship cases are complicated and require
sucient time and attention to individual needs and
rights—and this is especially so for no- or low-fee cases
with scant resources at hand and no one to serve. Yet
some delays may stem from systemic ineciencies
that result in wasted eorts and higher costs. Our
surveys and interviews sought reasons for the delays
and possible solutions.
While Article 81 provides 28 days from the ling of
the petition to the rst hearing, the Brookdale study
found it takes an average of 63 days. Some delays are
inherent in the very nature and complexity of the cases—
time for needed accommodations, investigation, and
evaluations. Other delays may be addressed through
solutions such as a uniform, plain-language petition,
as well as additional court clerks to move the process
ahead.
While it is important to
comply with time deadlines
set out in the law, it is also
important to focus on the
individual and support his or
her rights.
Article 81 species that the judge should issue an
order within seven days after the hearing, unless for
good cause shown, yet the Brookdale study showed
it took an average of 82 days. Sometimes judges need
extra time to nd the best and least restrictive answer
in dicult cases. Mediation may be helpful, especially
with family disputes. However, several of our survey
respondents cited “bottlenecks” concerning the proposed
order and oered practical solutions.
Article 81 species 15 days from the date of the
order to the guardian’s commission, yet the Brookdale
study found it took an average of 66 days. This may
be due to court backlogs and attorney delays, but
also lay guardians frequently don’t realize that their
authority depends on getting not just an order but also
a commission. Survey respondents proposed ways
to help guardians and to simplify and streamline the
commission process. Our survey also found bonding
10
practices uneven and that bonding guidelines might
be useful.
Article 81 requires the guardian to le an initial report
after 90 days and an annual report thereafter. The
Brookdale study found the average time to the ling
of a rst report is 237 days. Our study conrmed that
a substantial number of reports and accountings are
not submitted on time. Often lay guardians lack expe-
rience and training in ling a timely and complete
report and accounting; survey respondents urged
ways of making ling easier. Other delays may be
due to the lack of banks understanding of a guardian’s
authority. Survey respondents emphasized the need
for a uniform statewide template for initial and annual
reports. An additional issue pointed out by interviewees
was the need for a guardianship complaint procedure
or ombudsman function.
In response to these ndings, our study makes the
following recommendations:
•
Develop uniform documents. New York courts
should create uniform documents for the petition,
order to show cause, initial report, and annual
report.
•
Facilitate ling of reports to enhance monitoring.
New York courts should generate reminders of
ling deadlines, provide reporting instructions and
samples, and oer electronic ling options. There
is also a need to educate banks about guardian
authority to avoid unneeded delays.
• Expedite guardian commission process. New
York courts should educate lay guardians about
the need to get a commission and consider ways
to combine or streamline the order/commission
process.
•
Employ additional clerks. New York should
provide funding for the addition of administrative
sta trained to move the guardianship process
forward in a timely way.
•
Consider complaint resolution approaches.
New York should explore complaint procedures
from other states so that problems can readily be
brought to the attention of courts and consider
dispute resolution options such as mediation and
ombudsman functions.
How do other states
provide comparable
services?
As part of our study, we invited programs from other
states that had participated in the national public guard-
ianship study by Teaster et al. (2010) to complete a brief
update in order to inform eorts in New York. We were
able to gather information from ve sites in ve states:
the Pima County Public Fiduciary (Arizona); the Oce
of the Public Guardian (Los Angeles County, California);
the Oce of the Public Guardian (Delaware); the Oce
of Public and Professional Guardians (Florida); and the
Cook County Oce of the Public Guardian (Illinois).
Highlights of our ndings and recommendations for
New York included the following:
•
Array of funding. New York programs must have
adequate funding from a stable set of funding
sources. Most of the public guardian programs
in the other states we looked at have funding
derived from an array of sources, including state
funds, county funds, grants/foundations, client
fees, and estate recovery. Only Delaware had
one funding source.
11
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
•
Scope of authority. New York programs should
have authority to make decisions about nancial
and personal aairs if the court order has such a
scope of authority. All the programs make decisions
about people’s personal and nancial aairs.
•
Advocate, arrange, monitor. New York programs
should advocate for, arrange, and monitor service
delivery to the people served by the program. Public
guardian programs advocated for, arranged, and
monitored services. The Cook County Oce of the
Public Guardian (Illinois) also had responsibility
for directly providing some services.
•
Representative payee and supported decision
making. New York programs should serve as
representative payees and provide supported
decisions. Programs serve as representative payees,
personal representatives of decedents’ estates,
private guardians, and providers of supported
decision making.
•
Live at home. New York programs should work
to keep people in their own homes as much as
possible. Primary residences of people under
guardianship varied across the programs.
•
1:20 sta-to-person ratio. New York programs
should comport to a 1:20 sta-to-person ratio.
Sta-to-protected-person ratios ranged from 1:30
to 1:80. In the most recent national study of public
guardianship, Teaster et al. (2010) recommended
a sta-to-person ratio of 1:20.
Is the TGP model
considered to
be eective and
replicable by sta and
stakeholders?
The TGP model is supported both internally by the
sta members and externally by stakeholders we
surveyed and interviewed. TGP’s team approach is a
holistic “one-stop shopping” approach to the provision
of guardianship and related services, and the low ratio
of sta to individual aords high quality, person-cen-
tered services.
Program strengths included dedicated sta members,
nancial management programs, licensure of guard-
ians, an asset recovery program, and attention to the
needs and wishes of the people under guardianship.
Program challenges included diculties obtaining
public benets, lack of mental health services, sta
reductions in the face of a rising population of persons
needing guardianship, confusion concerning the role
of a public guardian, insucient resources, and high
sta turnover due to inadequate compensation of
sta members.
TGP is considered especially outstanding in its eorts
to either keep people living in community settings or to
return people to community settings as appropriate.
TGP’s quality of service is not without costs. The program
struggled for many years to nd a sustainable funding
model until, most recently, it obtained a sizable, multi-
year contract from the Oce of Court Administration.
Also, unlike other Vera-initiated programs, it has not
yet “spun o” independently, partly due to funding
and partly due to several changes in leadership since
12
its inception. TGP’s struggle to sustain itself is not due
to its programmatic model, however, but rather, due
to its mix of high-fee, low-fee, and no-fee cases that
the court orders TGP to take. Often, it is the most
resource-intensive cases that are very low or no fee.
Hence the need for programs (and alternative funding
sources) specically to serve indigent persons.
Often, it is the most resource-
intensive cases that are very
low or no fee. Hence the need
for programs (and alternative
funding sources) specically
to serve indigent persons.
Although the model is a promising one, it is a costly
one, and stakeholders raised this important point.
While TGP is successful in a city with a high-density
population such as New York City, it would likely need
to be modied if it were to be replicated in more rural
areas. Its replication and adaptation should be piloted
to determine feasibility, including requirements for
technology, training, oversight, and partnerships to
access services.
In response to these ndings, our study makes the
following recommendations:
•
Increase ease of information access. TGP’s
reports should be combined and retrievable in
one place; this is possible because the accounting
system is structured to have data all in one place.
Throughout the year, the program examines case
records; however, sta could go deeper via more
routinized and sustained eorts by the whole sta.
•
Optimize mix of cases and caseloads. Case
managers’ caseloads should be reviewed regarding
sta-to-client ratios as well as mix of cases given
to each case manager.
•
Improve funding model. The original funding
model of cases with estates and no-fee cases
should be maximized so that TGP can have greater
sustainability.
•
Increase funding. TGP should have more funding
in order to take on more cases.
•
Continue outreach eorts. TGP should contin-
ue eorts at outreach and involvement in policy
discussions.
•
Replicate the TGP model. The TGP model should
be replicated and evaluated. The evaluation should
be a formative, process and summative evaluation.
13
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Section 1: Introduction
In 2005, the Vera Institute of Justice and New York State’s Ofce of Court
Administration initiated The Guardianship Project (TGP) to serve as court-ap-
pointed agency guardian to a vulnerable, largely indigent population—elders
and persons with disabilities lacking family or other supports—thus enabling
them to live as independently as possible. In launching TGP, Vera sought
to cast a spotlight on a desperately missing element of the social safety net
and to provide an approach that humanely addressed critical needs for
individuals in a way that allowed key institutions to operate in concert and
more effectively. Guardianship is one among an array of mechanisms (e.g.,
supported decision making, agent under power of attorney for healthcare,
power of attorney for nances, healthcare proxy, advance directive, living
will) to help people with decision making when they are unable to do so in
part or completely—temporarily or permanently.
TGP offers a comprehensive guardianship model available in New York City
and employs attorneys, social workers, and nancial and property managers
and partners with investment advisors, volunteers and, when necessary, pro
bono counsel, to provide guardianship services for those under its care. TGP’s
clients are referred to the program due to a wide variety of issues, including
dementia, serious medical problems, pending evictions, elder abuse, and
placement in institutional settings against their will.
Under New York law, there are two kinds of guardians for adults. Under
Article 81 of the New York Mental Hygiene Law, a Supreme Court, Civil
Branch or a county court, may appoint a guardian for an adult to manage the
adult’s personal and/or nancial affairs when the court nds the individual
is not able to do so. Under Article 17A, a Surrogate’s Court may appoint a
guardian for an adult with an intellectual or developmental disability. This
report concerns appointments under Article 81. According to the statute,
such Article 81 appointments are only warranted when there has been a
showing to a judge that a person has functional limitations, is unable to
recognize the extent of those limitations, is likely to come to harm as a result,
and there are no less-restrictive options.
14
Nationally, while data are scant, the number of persons who need help with
decision making through guardianship or a less-restrictive option appears to
be growing. This growth is attributable to an aging population (the graying
of the Baby Boomers), increased longevity, increased awareness of mental
illnesses and developmental disabilities, military service-related disabilities,
advances in medical treatment, the aging of caregivers, the rising awareness
of elder abuse, and the occurrence of blended families and their increasing
mobility. Although there are few statistics on adult guardianship lings
and caseloads, it is clear that the demand for adult guardianship services is
increasing across the country (Teaster et al., 2010). For example, in New York,
from 2007–2011, the average number of initial New York State guardianship
lings under Mental Health Law Article 81, as reported by the Ofce of Court
Administration, was almost 2,400 cases per year. Because accurate data
collection is lacking, as yet there is no way to determine exactly how many
cases, and thus, types of guardians, are currently still active in the system
from previous years.
Types of guardians
When classifying guardians who are appointed to assist people who are in
need of this type of surrogate decision maker, it is necessary to distinguish
between private guardians and public guardians. Most guardians are private
guardians and typically family members or friends, although attorneys,
corporate trustees, agencies, or even volunteers also serve in this role.
Attorneys, corporate trustees, agencies, and volunteers generally have the
discretion to choose cases for which they wish to serve. While there are a
number of factors that affect their determination, the intensity of services
needed and availability of payment are two strong incentivizing factors.
Unlike persons with family and friend connections, it can be difcult to
nd guardians for at-risk people and/or people with low incomes and high
needs. Attempts to locate a suitable surrogate decision maker can lead to
delays in selecting a guardian and/or the appointment of a guardian who
is ill equipped to meet the needs of the person needing the services of a
guardian. As a result, those with low incomes may fail to receive need-
ed services; fall prey to third-party interests; become victims of abuse,
neglect, and exploitation; have inappropriate or insufcient health care;
15
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
and receive inappropriate placement in facilities. To ll this gap, for people
who are aging alone and without resources, as a last resort, there are public
guardians.
Public guardians
Public guardians, such as TGP, represent a small but highly important subset
of guardians. Public guardianship, sometimes called guardianship of last
resort, refers to the appointment of a public ofcial or publicly funded entity
as guardian in the absence of willing, able, and responsible family members
and friends to serve, or without resources to employ a private guardian
(Schmidt et al., 1981; Teaster et al., 2010). All states have either implicit or
explicit public guardianship—that is, in an explicit scheme, the state estab-
lishes a public guardianship program; whereas in an implicit scheme, a state
designates a state agency to serve (public guardian programs are funded
through state appropriations, Medicaid funds, county monies, legislated
fees from the individual under guardian, or some combination). Among
the populations that public guardian programs often serve are people with
mental illness, traumatic brain injury, intellectual disability, or developmen-
tal disabilities; the homeless; substance abusers; and persons with chronic
diseases, such as dementia.
The purpose of this project was to analyze ways to increase and improve
guardianship and decision support services for individuals in New York City
and statewide whom the court has deemed “incapacitated” and who are
alone with no one to help. Its objectives were to: (1) document the need for
guardianship and decision support services for the population; (2) assess
the current local and state ability to meet that need; (3) understand the best
practices of states providing comparable guardianship and decision support
services; (4) assess the TGP model of guardianship to ascertain if it is an
appropriate model for expansion to meet the increased need in New York City
and in other parts of the state; and (5) highlight barriers in court guardian-
ship processes in New York City and state and improvements that might
be made.
16
The Guardianship Project
In 2004, in the wake of studies and news reports documenting abuses
committed by overwhelmed, ill-trained, and/or nefarious guardians in New
York State (including a guardian who stole approximately $2.1 million from
17 clients [Worth, 2003]), the Vera Institute recognized the lack of available,
appropriate guardians as an access to justice issue that warranted interven-
tion to help ensure that all New Yorkers, regardless of their resources, could
have high-quality, trustworthy guardians to meet their needs. Working
in collaboration with the New York Ofce of Court Administration, Vera
designed and launched TGP to test an innovative, cost-effective model of
guardianship. The TGP model consists of a multidisciplinary team of social
workers, lawyers, and nancial professionals who are capable of providing
wraparound support for client needs in the least restrictive setting possible.
In launching TGP, Vera sought to cast a spotlight on a desperately missing
element of the social safety net and to provide an approach that humanely
addressed critical needs for individuals in a way that allowed key institu-
tions to operate in concert and more effectively. Like all Vera demonstration
projects, the goal was not to run TGP in perpetuity but rather to fully develop
the model, thoroughly assess its effectiveness, and once the operational
framework had been rened, if appropriate, to spin it off into an indepen-
dent nonprot.
TGP offers a comprehensive guardianship program available in New York
City to ensure quality representation, employing attorneys, social workers,
and nancial and property managers. TGP partners with investment advi-
sors, volunteers and, when necessary, pro bono counsel, to provide guard-
ianship services for those under its care. TGP’s clients are referred to the
program due to a wide variety of issues, including dementia, serious medical
problems, pending evictions, elder abuse, and placement in institutional
settings against their will. TGP currently accepts guardianship appointments
in New York City only; its clients live throughout the boroughs of Brooklyn,
Manhattan, Queens, and the Bronx. TGP accepts cases regardless of the
client’s ability to pay and tries to take complex cases where its multidisci-
plinary team model can be most effective in serving clients with difcult
and complicated needs. Courts have found it increasingly difcult to nd
17
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
professional guardians willing to serve in cases where there are little to no
assets that can generate fees, particularly where those cases are presenting
with complicated issues that will require a great deal of effort and expertise
to successfully address and resolve. Consequently, courts in the jurisdictions
where they practice will often seek TGP to be appointed on cases for this
population.
TGP cases usually involve the coordination of complex legal, health care,
case management, and property issues that would be difcult for an individ-
ual guardian to effectively manage due to the resource intensive nature of
these cases and the breadth of knowledge needed to adequately address the
diversity of issues faced by the client. Individual cases are handled by a team
of TGP staff. TGP lawyers manage all legal matters, including litigating on
collateral issues. Case managers offer intensive social services and discharge
planning. A benets specialist coordinates any and all public benets for
which clients are eligible, including Medicaid, food stamps, Supplemental
Security Income, rental supplement, etc. The nancial team offers assistance
supervising assets, including marshaling bank accounts and overseeing
investments, budgeting, and bill payment. TGP’s property manager works
with landlords, tenants of clients who own property, and the clients them-
selves, in order to keep homes safe and secure for residents.
TGP staff members navigate issues that their at-risk clients face, includ-
ing but not limited to entitlements, budgeting, health care, housing, as well
as those in the legal, nancial, and medical systems. From July 1, 2014, to
November 30, 2018, TGP served as court-appointed guardian for 257 living
clients and performed work in furtherance of discharge of TGP as guardian
for an additional 111 clients who passed away before or during that time
period. As of November 1, 2018, TGP was actively commissioned on 160 living
clients. In addition to these clients, TGP is working on 55 cases where an appli-
cation for discharge has been made, mostly in response to a client’s death.
TGP’s clients are demographically diverse. Based on who was served in
calendar year 2017, they are approximately 52 percent white/Caucasian, 27
percent black/African American, 15 percent Latino or Hispanic, 3 percent
Asian or Middle Eastern, and 2 percent of multiple races or ethnicities.
Seventy percent of its clients are women. Of the clients whose nances are
managed by TGP, 83 percent are living on less than the median annual per
18
capita income in New York City ($66,800) (U.S. census 2017). Nearly half (42
percent) are living at or below the poverty threshold for 2018 ($12,060 for
a single-family household) (Health and Human Services, 2018). Over three-
fourths (81 percent) of all clients are Medicaid recipients. Over this period,
TGP has been able to maintain approximately 57 percent of its clients in
community settings. Although most of TGP’s clients are older adults and poor,
all its clients have one thing in common—they have no one else to reliably
take care of them at a time in their lives when they are deeply, and in many
cases, dangerously vulnerable.
Once appointed, TGP strives to help its clients return to or remain in their
homes and avoid unnecessary and costly nursing home admissions, hospital
stays, and other types of institutionalization. In scal year (FY) 2018, TGP
returned or maintained approximately 57 percent of its clients in deinstitu-
tionalized settings. Although TGP attempts to keep as many of its clients as
possible in the community, its goal is to provide every client, regardless of
his or her habilitation status, as much self-determination and agency as each
situation allows.
19
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Section 2: Methods
This project examined ways to increase and improve New York’s guardianship
system and other ancillary decision support services for a growing population
of indigent individuals adjudicated by the court as “incapacitated,” and who
have no family or friends able or willing to serve. The project also assessed
the TGP model to determine whether it is considered effective, efcient,
and sustainable by a variety of stakeholders and staff. Evaluation of the TGP
model helps inform the scalability of the project in other areas as well as
serves as an impetus for a system of guardianship in the state of New York.
The project rst analyzed previous national research as well as research
conducted by the New York City-based Brookdale Center on Aging that
attempted to quantify the current and future need for guardianship services
in New York. Second, the project, a joint effort with TGP and the evaluation
team of Teaster and Wood, also included a statewide “unmet need” survey
to ascertain, categorize, and quantify current efforts in New York for indi-
gent, unbefriended, incapacitated individuals under guardianship.
2
Third,
we surveyed national contacts to learn about the most up-to-date, cutting-
edge guardianship practices in order to guide efforts in New York. Fourth,
we examined current New York City and statewide judicial guardianship
processes to determine potential efciencies that can make representation
of this population easier to achieve. Fifth, we conducted a formal assessment
to ascertain stakeholders’ views on the effectiveness of TGP in serving adults
who may need decision making help, as well as on sustainability of the TGP
model. We attempted to understand persons and populations in need of
services, who was serving them, and improvements that might be made in
court processes.
2 Originally, the project team also included Winsor C. Schmidt, JD, LLM, Metrolina Medical Foundation
Distinguished Professor of Public Policy on Health, University of North Carolina at Charlotte. Professor
Schmidt, a longtime colleague of Wood and Teaster, died on May 18, 2018. Professor Schmidt had a
special interest in guardianship in New York, as he was a native of New York.
20
Specically, our research included both online surveys and telephone
interviews. Online surveys were developed in conjunction with staff at TGP.
Protocols for research were approved by the Institutional Review Board of
Virginia Tech. Table 1 summarizes the numbers of individual respondents in
each category; ndings from the surveys are reected in sections 3, 4, and 5
of this report. We attempted to survey guardianship agencies, departments of
social services, court clerks, and bar associations, but the response numbers
were either none or too low to report.
We also surveyed public guardians nationally using an online survey
platform. We used respondents for the national survey by Teaster et al.
(2010), surveys that yielded ve responses (i.e., Pima County Public Fiduciary
(Arizona), Ofce of the Public Guardian, Los Angeles County (California),
Ofce of the Public Guardian (Delaware), Ofce of Public and Professional
Guardians (Florida), and Cook County Ofce of the Public Guardian (Illinois).
Additionally, the project investigators Teaster and Wood conducted telephone
interviews with both stakeholders in the guardianship process in the state
of New York as well as staff of TGP. The number of interviews and categories
of individuals whom we interviewed is shown in Table 2 and is explained in
greater detail in Section 7.
TABLE 1.
THE NEW YORK GUARDIANSHIP STUDY SURVEY SUMMARY
ONLINE SURVEYS TOTAL RESPONSES
Guardians 33
Judges 23
Court evaluators 66
Court examiners 18
TABLE 2.
THE NEW YORK GUARDIANSHIP STUDY INTERVIEW SUMMARY
TELEPHONE INTERVIEW TOTAL RESPONSES
Guardianship stakeholders
Judges: 5
Court examiners: 1
Mental hygiene legal services: 4
Misc.:4
TGP sta 8
21
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Note: TGP sta included the interim executive director, director of legal services and former director
of legal services, former director of nance, director of case management, the legal department, the
nance department, and the case management department.
The methods above allowed us to use mixed methods in determining the
need for guardianship and the replicability of the TGP model. Section 3 (Who
Needs Services?), Section 4 (Who Serves as Guardian?), Section 5 (New York
Court Processes), Section 6 (The National Landscape), and Section 7 (The TGP
Model), which follow, provide answers to the issues of need and program
replication for the state of New York .
22
Section 3: Who Needs
Services?
In this section, we describe our ndings on the need for guardians and
the extent of the need. In Section 4, we examine who serves as guard-
ian for this high-risk population. Read together, the two sections paint an urg
ent picture of the New York guardianship landscape with some gaping gaps in
services that greatly endanger the safety and well-being of these incapacitat-
ed persons.
Who needs services?
The demographics. New York State currently has 3.7 million individuals aged
60 and older and ranks fourth in the country in the number of older adults.
The state population is projected to be over 24 percent older people in 2025.
Between 2010 and 2020, the minority population aged 60 plus will increase by
51 percent. The poverty rate for older New Yorkers is slightly over 11 percent
with “pockets of poverty … for example, among older women living alone”
(New York State Ofce for the Aging, 2015). New York has 380,000 people
with an Alzheimer’s diagnosis, with an expected increase of 21.1 percent by
2025 (Alzheimers.net).
Converging with the aging of the population is an increase in the number
of “oldest old” people over 85, a rising lifespan of individuals with disabilities,
and increased mobility of family members—adding up to a greater need for
decisional support, including a need for guardianship. A court examiner we
surveyed stressed: “With the increase in the number of people over 65, the
trend that family members move away from parental homesteads, and the
increase in life expectancy along with the potential for dementia … I believe
there will be an increase in the number of guardians assigned.” One judge we
interviewed pointed out that a lot of people have no one and have outlived
their children and relatives. Another judge observed that older people have
worked hard in their community and should be respected and have a roof
over their head.
23
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Converging with the aging of the population
is an increase in the number of “oldest old”
people over 85, a rising lifespan of individuals
with disabilities, and increased mobility of
family members.
The cases. The cases show a tangled and acute mix of mental health prob-
lems, dementia, abuse, exploitation, and problematic family dynamics. There
is often no money, no available housing or long-term supports and services,
and no one to serve when a surrogate decision maker is needed. In our inter-
views, we learned the fact patterns of many challenging cases, for example:
• A sister was caring for her brother with developmental disabilities,
who was in a nursing home. As time went on, the sister stopped
cooperating, the brother needed additional assistance, and there were
decisions to be made, but there was no one to serve.
• An older woman was being abused by her grandson, who was using all
her money and had taken over her house, forcing her to sleep in the
living room, without medical treatment. The landlord complained that
the rent was not being paid.
• A nursing home resident fell, and her daughter petitioned for guard-
ianship. The daughter planned to shelter the settlement money illegal-
ly and was not aware of Medicaid regulations.
• A nursing home resident with developmental disabilities refused to
eat, and the facility said he was not a candidate for a feeding tube. The
not-for-prot guardianship agency had a high caseload and had no
time to examine the situation and suggest solutions. When the judge
inquired about feeding the resident by hand, the facility responded,
and the resident began eating.
24
The unmet need. Like most states, New York has no statewide database
showing the number and characteristics of open guardianship cases. Thus,
it is difcult to quantify increases in the caseload and even more difcult to
estimate the extent of unmet need. The Ofce of Court Administration (OCA)
has recognized the need for guardianship data and has begun in mid-2018
to collect case-level information. OCA has asked that judges, after issuing
an Article 81 Order appointing a guardian, complete a data sheet recording
information about the petitioner, guardian, individual subject to guardian-
ship, and the order. The request includes two specic questions on the unmet
need for guardians: whether the individual’s lack of assets limits the choice
of available guardian; and whether the assets and/or income is sufcient to
adequately compensate a guardian (New York Ofce of Court Administration,
2018).
Given the lack of data, our survey asked judges to estimate unmet need
for guardianship services for individuals deemed incapacitated but with no
available family members or others to step in. Some 55 percent of responding
judges said this population makes up 21 to 40 percent of their guardianship
caseload. When asked about cases where there are limited nancial resources,
one third said “low-fee or no-fee” cases involving this population make 21 to
40 percent. One New York City judge we interviewed estimated that these
cases make up over 60 percent of his caseload.
Over half the responding judges said that there are not enough resources to
handle their current, active caseload involving these no-fee or low-fee cases
and named an increased number of guardians and increased number of
clerks as resources that would help. Over 80 percent indicated it can be
difcult to nd an appropriate guardian to serve for the no-fee or low-fee
cases—and over 55 percent said this occurs “most of the time.” When asked
whether there are a sufcient number of guardians with skills to take the
no-fee/low-fee cases, 60 percent said no, but 40 percent said yes. Comments
attributed the difculty of nding qualied guardians to the fact that the
work required exceeds available payment.
The judges described a somewhat different situation for fee-generating
cases involving those with no available family or friends. Over 76 percent said
that such cases comprise 0–20 percent of their active guardianship caseload,
25
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
and over 70 percent reported they had enough resources to handle the cases,
although many said that an increased number of available guardians and an
increased number of clerks would enable them to better handle the cases. Just
over half of responding judges said that it is sometimes even difcult to nd
an appropriate guardian for fee-generating cases, noting that attorneys are
reluctant to take on the responsibility and that they seek a higher rate than
is approved—and that it is hard to match the needs of the individual with the
skills of a potential guardian.
Over half the responding judges said that
there are not enough resources to handle their
current, active caseload involving these no-fee
or low-fee cases.
Other survey and interview responses conrmed this perception of unmet
need. We interviewed attorneys from Mental Hygiene Legal Services, a New
York State agency responsible for representing, advocating and litigating on
behalf of individuals receiving services for a mental disability. They said the
vast majority of their clients are those with low incomes, and it is difcult
to nd guardians for them (especially if social services does not petition, as
explained in Section 4). A referee observed that it is getting more difcult to
nd effective and skilled guardians. We also surveyed and interviewed “court
examiners”—who are statutorily required to examine guardian reports before
they are led—and many agreed. One examiner remarked that there are
difculties dealing with people who may have limitations and impairments,
and it is hard to nd those who can do it.
Within the overarching unmet need, there are two specic situations in
which the gap is especially harsh:
• Community guardian clients who are institutionalized. As
explained in Section 4, Adult Protective Services (APS) and
26
Community Guardian Programs are focused on serving as guardians
for individuals in the community and must relinquish a case if the
person subject to guardianship goes into a nursing home or similar
residential setting. This situation leaves the person unserved and puts
the judge in a bind to nd someone. As one judge explained, this is “a
big problem because there is no money, as the person’s assets likely
were spent down for Medicaid—no family, no decisional ability. They
need someone to make medical decisions and to be a strong advocate
to ensure good care and often there is no one.”
• Cases in which APS was not the petitioner. As noted in Section 4,
while Adult Protective Services is the state’s guardian of last resort,
APS generally service only in cases in which it petitioned—leaving a
huge need for instances in which a nursing home, hospital, or other
interested party brought the case. When there is no agency contrac-
tually obligated to take a case, there is no guarantee any private or
nonprot guardians will be willing to take a case.
What services are needed?
If in fact there is an unmet need as established above, precisely what services
are needed? Although our study focused on the need for guardianship
services—both personal needs and property guardians—the question of how
to provide those services presented complicated questions of ways to best
match the varied, intersecting needs of those subject to guardianship with
the skills and resources of those available to serve.
Complex legal–social services. Attorneys make up a substantial portion of
guardians appointed by the court for low-income individuals with no one else
to serve and no less-restrictive options available (see Section 4). Yet a repeated
theme in our surveys and interviews was that, while guardianship is a legal
appointment, the needs that guardians meet are not strictly legal in nature.
Indeed, the needs represent an intricate mix of legal, nancial, and social
services. Respondents said the following:
• “More time needs to be spent on the social work aspects of these cases.”
27
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
• “We’re dealing here with people who don’t t the typical lawyer–client
relationship, and they need help from those who are well versed in not
only Medicaid, but supportive housing and community services, and
mental health services.”
• “Often it is not lawyer’s work—we need nurses and social workers.”
Services that keep people in community settings. We heard that a
frequent pattern in guardianship is for the guardian to spend down the
person’s assets, prepare a Medicaid application, and get the person into a
nursing home, where it is thought that there is less need for regular super-
vision and for nancial management. Maintaining or returning a person to
the community is often an incredibly time-consuming and difcult propo-
sition that involves qualifying individuals for and securing varied benets
(including home care), the coordination of community-based health care,
close monitoring and active control of nances, accessing appropriate social
services and improving quality of life, managing real property, and protect-
ing against exploitation and abuse, often all while operating under extreme
nancial constraints for a population largely dependent on xed incomes.
A repeated theme in our surveys and
interviews was that, while guardianship is a
legal appointment, the needs that guardians
meet are not strictly legal in nature.
Most people want to stay in their home and community. Ideally, guardians
would facilitate this strong desire if possible. One judge interviewee lamented
this predominant “pipeline to nursing home pattern,” noting that the way
the system is set up around asset spend-downs for nursing home placement,
there is a disincentive for guardians to do the right thing by trying to keep
people in the community. Another said that it is critical to put money toward
28
“good guardianship,” not just guardianship to ll a gap, and noted that poor
guardianship can be extremely costly.
Less-restrictive decisional options. Under Article 81 and as a moral imper-
ative to preserve individual rights and self-determination, guardianship
should be a last resort. Less-restrictive decisional options might include
nancial powers of attorney, health care powers of attorney and advance
directives, trusts, use of representative payees, surrogate health care deci-
sions made under the Family Health Care Decisions Act, and supported deci-
sion making. In supported decision making, people with a disability make and
communicate their own choices about their lives with support from others
(National Resource Center; Supported decision making New York; Blanck &
Martinis, 2015; Diller 2016).
Little information exists on the extent to which guardianship petitions are
screened for less-restrictive options. We surveyed “court evaluators,” who are
professionals appointed by the judge during the initial guardianship hearing.
Court evaluators are to interview individuals alleged to need a guardian, the
nominated guardian, and any other party who may have relevant knowl-
edge regarding the need for a guardianship. The court evaluator is to use the
gathered information to make a report to the court recommending whether
the appointment of a guardian is necessary and if there are less-restrictive
interventions.
Under Article 81 and as a moral imperative
to preserve individual rights and self-
determination, guardianship should be a last
resort.
In our survey, the responding court evaluators said that they recommend
such options in only 0 to 20 percent of their cases, and most recommend
it “seldom.” They recommended limited guardianship orders in only 0 to 20
29
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
percent of their cases as well. It was not clear if the reported low usage was
because by the time the cases reach the evaluator, the needs are too great and
there are simply no workable options.
Some interviewees commented on the importance of earlier intervention
with critical services to meet daily needs—the front-end need for supportive
services in avoiding guardianship. A judge said, “A number of people in New
York City could avoid guardianship if services were available beforehand.
There should be more attention to preventing guardianship. More aggressive
case management and supported decision making.” Others remarked that
a large number of petitions stem from family disagreements and do not
necessarily involve functional limitations that would make guardianship an
appropriate intervention. One judge commented that “Many petitions—in
fact almost all of them—should never have been brought as they are not
motivated by concern for the [individual].
3
Frequently, they are products of
ghts between family members for assets. Some ltering mechanism would
be helpful—one which investigated whether the person had need of the
court’s protection.”
However, we also heard about successful use of less-restrictive options
instead of guardianship. In our judge’s survey, we asked respondents about
reasons a petition might not result in appointment of a guardian. Finding
of an appropriate alternative to guardianship was rated as a mean of 2.40
on a 1–6 scale in which number 1 was the most common reason—showing a
reasonably strong use of screening for options other than guardianship.
Respondents described specic cases in which less-restrictive options
sufced. One judge described a case in which an older woman had early onset
dementia, and while a petition for guardianship was pending, she appoint-
ed her son as agent under a power of attorney. He put a support network in
place, and so the petition was withdrawn. A court evaluator described a case
concerning a petition for a woman with limited English skills and a difcult
personality. The woman was able to secure for herself social services and
3 This observation was made in the most recent study of public guardianship by Teaster et al. (2010).
30
rental subsidies, showing an ability to navigate the system, and once these
were in place, she did not need a guardian.
The goal of limiting guardianship does not end with the appointment of a
guardian, but also must take into account the changes in functional status
and available supports that occur post-adjudication, something that seems
to rarely occur in the current system in New York. Our survey asked judges
about the percentage of cases in which they had terminated a guardianship
and restored rights to the individual. Close to 47 percent of judges report-
ed they terminated a guardianship order and restored rights in less than 1
percent of their cases, 20 percent said they took such actions in 1 to 2 percent
of cases, and the remainder did so in either 3 to 5 percent or 6 to 10 percent
of their cases. This conrms the ndings in a 2017 national report about
restoration of rights, nding it very rare—and not even tracked by most court
systems. A recent news story proled the poignant case of a New York resi-
dent seeking termination of a guardianship and restoration of rights (Leland,
2018).
Housing and mental health services. Another recurring theme we heard
is that housing plays a huge role in guardianship cases, and that eviction is
a gateway to guardianship. “What worries me most,” one judge interviewee
explained, “is the effort needed to prevent seniors from being evicted. If the
person had these services earlier, they would not need guardianship.”
“What worries me most,” one judge
interviewee explained, “is the eort needed to
prevent seniors from being evicted.
To protect against eviction, the court will appoint a guardian ad litem, and
that appointment may lead to a guardianship petition. However, according
to a court evaluator, often the person “is just poor and no judge wants to put
them out on the street. You wind up with a lot of cases where the person is
adjudicated as incapacitated, but actually has a personality disorder, and the
31
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
landlord does not want to continue renting to them. These cases are difcult
for the court examiner because the person does not want or need a guardian—
needs help but it might not be a guardian.”
Several judges conrmed that common gateways into the guardianship
system in New York City are evictions and foreclosures. One judge explained
a domino effect in which an eviction can lead to a guardianship petition and
then a defaulting of a landlord’s mortgage, adding to the housing crisis. A
judge in a more rural area of the state sees housing problems as well, but
they are more likely to concern people who own their homes but are living
in squalor, people who can no longer afford to stay in their own homes, or
family squatter situations. Hence, housing may be the real service needed, not
guardianship.
Section summary
With a rising population of older persons, increasing dementia, increas-
ing longevity for individuals with disability, and a likelihood that family
members will be spread out geographically, there will be a continued and
escalating need for guardians as well as other decisional options. While data
are lacking, our study uncovered a compelling and undeniable unmet need
for guardianship and related services for individuals who are indigent, have
been named by a court as “incapacitated,” and who have no one to serve.
The cases are often urgent and concern the neediest in our society, with an
alarming mix of Medicaid, housing, mental health, long-term care, and social
services issues—and often, with no one to help. The need is especially intense
for nursing home residents and for individuals at risk of eviction from
housing.
Guardianship databases would help clarify and focus the unmet needs
and suggest solutions. Clearly, there is great demand for more available and
skilled guardians as well as more attention to less-restrictive options and a
greater emphasis on the social work skills required to sort out the pressing
human needs.
32
Recommendations
• Data. New York should continue and intensify its collection of basic
guardianship data to better inform estimates of unmet need and
strategies for meeting the need.
• Supportive services. New York should provide adequate funding for
home and community-based care and affordable housing for indigent
individuals at risk of, or subject to, guardianship—especially congre-
gate housing for older adults where people can age in the community
and easily access support services.
• Social work skills. New York should nd ways to increase the number
of professionals with social work and nursing skills to act as guard-
ians for individuals with no family or friends to serve.
• Less-restrictive options. New York should provide judicial and legal
training on screening for less-restrictive options—including a range
of decision supports and supported decision making, the use of forms
that emphasize screening for such options, and tracking the use of
these options in avoiding unnecessary appointments.
• Restoration of rights. New York court procedures should ensure
access for petitions for modication or termination of guardianship
orders and restoration of rights when guardianship is not needed.
• Increased number of clerks. New York should provide funding for an
increased number of clerks to assist judges with the high volume and
complexity of guardianship cases.
• Increased number of guardians. New York should pursue multiple
approaches toward increasing the number of available and skilled
guardians to serve indigent individuals in need as a last resort after
less-restrictive options, including supported decision making, have
been examined.
33
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Section 4: Who Serves As
Guardian?
New York has four “guardian of last resort” schemes for individuals who are
indigent, have been judicially deemed “incapacitated,” and have no family or
friends to serve. Each of these schemes contributes to meeting the surrogate
decision making needs of this high-risk population in important ways. Each is
stretched thin. Taken together, they appear to fall markedly short of address-
ing the compelling need for surrogate decision makers for adults when there
is no one willing or appropriate to help. They make up a patchwork approach
that includes: (1) adult protective services, (2) community guardian programs,
(3) attorneys and others on the judicial appointment list, and (4) nonprot
organizations. This section illuminates the portions of our surveys and inter-
views that reect the roles, perceptions—and identied strengths, weakness-
es and gaps—for each provider.
Adult Protective Services
Adult Protective Services (APS) is “a social services program provided by
state and local governments nationwide serving older adults and adults
with disabilities. APS is charged with receiving and responding to reports of
maltreatment and working closely with clients and a wide variety of allied
professionals to maximize clients’ safety and independence” (Administration
for Community Living, 2016). In New York, oversight of Adult Protective
Services is through the Ofce of Children and Family Services, Bureau of
Adult Services. APS is a mandated service provided by the state’s local social
services districts. It “involves intake, investigation and assessment of refer-
rals of abuse, neglect, and nancial exploitation” of adults age 18 and older
who “due to physical or mental impairment are unable to protect themselves
…or have no one available who is willing and able to assist responsibly” (Ofce
of Children and Family Services).
APS has a triple role in the state’s guardianship system. First, if APS identi-
es abuse, neglect, or exploitation, the commissioner of the local department
of social services may petition for guardianship to protect an individual from
34
harm. Thus, APS is a major gateway into guardianship. Second, theoretically,
APS may investigate instances in which there is a report of abuse or exploita-
tion by guardians and ask the court to remove a guardian who breaches
duciary duties. However, we did not hear about such investigations in our
study. Third, in some areas of the state outside of New York City, APS also
serves as guardian if no one else is available. This role is authorized by New
York statute and regulations:
• Mental Hygiene Law Article 81 includes “a local department of social
services” in the denition of “guardian” [Article 81.03(a)].
• Article 81 species that eligibility to serve as guardian includes “a
social services ofcial, or public agency authorized to act in such
capacity which has a concern for the incapacitated person” [Article
81.19(a)(2)].
• New York Social Services Law on Adult Protective Services states that
APS services include: “Arranging, when necessary, for commitment,
guardianship, or other protective placement for [eligible] individuals
either directly or through referral to another appropriate agency...”
[Article 9B, Title 1, 473(c)].
• APS regulations state that APS services include “functioning as a
guardian…where it is determined such services are needed and there
is no one else available or capable of acting in this capacity [18 New
York Code of Rules and Regulations, Sec. 457(d)].
Thus, in New York, APS is the designated “guardian of last resort.” The
national public guardianship study (Teaster et al., 2010) called such an agen-
cy designation an “intrinsic” form of public guardianship—that is, there is
no established program devoted to the function, but if there is no one else
to serve, an executive agency is named by the court, and the head of the
agency then selects staff to manage cases. The 2017 APS Guardianship Map
(Appendix B, Bureau of Adult Services, Ofce of Children and Family Services)
shows the number of cases in which the local commissioner of social services
was appointed by the court to serve as guardian, designating APS staff or a
contracting agency (see below, section on “community guardian programs”)
to fulll responsibilities. The map shows that in 2017, there were 3,023 cases
(as compared with 2,886 in 2016). A striking pattern shown in the map is that
35
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
in most upstate counties, there are very few active adult guardianship APS/
department of social services cases, but the number increases in the midstate
area and spikes dramatically downstate, particularly in New York City (where
contracting community guardian programs serve).
Our interviews of New York guardianship stakeholders revealed that while
the Bureau of Adult Services provides uniform statewide training on guard-
ianship to APS staff, practices vary signicantly throughout the state in a
number of aspects:
• Petitioning vs. serving. In some areas, such as New York City, APS
petitions but does not serve as guardian (due to the presence of the
community guardian programs). In many mostly upstate areas, APS
both petitions and serves.
• APS as petitioner. In some areas, APS serves as guardian only if APS
has already petitioned, but in other areas, APS may serve regardless of
who petitioned (for example, a nursing home or hospital).
• Finding other options. In some areas, APS appears to be more attuned
than in other areas to identifying less-restrictive options and other
means of supporting individuals, thus avoiding guardianship.
• Designated staff. In some areas, APS has designated experienced staff
to fulll the responsibilities of serving as guardian, while in others,
staff with a range of duties and skills in this arena may manage the
cases.
As noted above, a responsibility of APS is to investigate and monitor services
provided to individuals with guardians, as well as reports of possible abuse,
neglect, or exploitation by guardians. APS therefore is an essential safeguard
in the guardianship system for monitoring the conduct of the guardian.
Thus, an issue is whether there is a conict of interest to have APS serve as
guardian—securing social services, making end-of-life and other health care
decisions, and making nancial and Medicaid decisions. Indeed, the nation-
al public guardianship study found that there is an inherent clash in such
competing roles, and therefore, “states should avoid a social services agen-
cy model” of public guardianship, as it can hamper effective advocacy for
clients (Teaster et al., 2010). New York Mental Hygiene Law at Article 81.19(e)
36
addresses conict of interest, barring creditors and direct service providers
from appointment, but it does not refer to APS. Moreover, as stated above,
APS eligibility for appointments is recognized in other statutory provisions.
Interviewees generally supported the role of APS serving as guardian but only
as a true last resort, observing that the need is critical, but the conict is only
potential—and that in some cases, APS may be named temporarily while a
search for someone else is underway.
Our surveys and interviews revealed that most courts and stakeholders in
the system are grateful that APS may be appointed if there is no one else and
that caseworkers generally have the expertise and services needed. APS has
contacts and knowledge to manage care and nances. However, appointing
APS as guardian is perceived by some as not ideal, due to the conict, and it in
no way fully meets the glaring need for guardians as last resort. Additionally,
it pulls APS away from performing its other important functions of adult
protection. Our respondents said, in sum:
• Serving as guardian is not the primary role of APS. APS staff have a
heavy load of tasks to detect and address adult abuse across a broad
range of settings and must engage with clients, often under trying
circumstances. Serving as guardian “diverts resources from their
other mandated services.”
• APS is intended by law to be the guardian of last resort but often
becomes a rote default.
• In smaller counties, APS often struggles to fulll obligations of a
guardian, especially for property.
• APS is underresourced and overburdened, requiring additional funds
to meet guardianship and related needs. There are simply more cases
than they can handle. While they don’t always accept cases, in other
instances, they may feel they cannot turn down cases even though
they lack needed support to do the job. And these are only APS-eligible
cases—what about the others?
We also learned that generally if APS, in responding to a report of suspected
abuse, nds that a guardian has been appointed, APS generally closes the case.
37
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
This closes off an essential outside eye on guardianship and prevents investi-
gations that would be useful to the court in monitoring.
Community guardian programs
In some areas of the state, instead of designating APS to fulll the statutory
duty as guardian of last resort, the commissioners of local social services may
contract with statutory “community guardian programs” authorized under
Social Services Law. The law species that “a social services ofcial may bring
a petition to appoint a community guardian program…for an individual who
is eligible for adult protective services, without a capable friend or relative
willing and able to serve, and living outside a hospital or residential facility”
(Article 9-B, Sec. 473-D).
New York City has three community guardian programs—New York
Foundation for Senior Citizens, Self-Help Community Services, and the
Jewish Association Serving the Aging. On the APS Map (Appendix B), the 2,117
open cases, including the 257 new appointments in 2017, are all community
guardian cases.
As the name implies, community guardian programs are to serve indi-
viduals in the community and, according to the law, must relinquish the
case when a person enters a nursing home. This leaves a disturbing and, in
some cases, potentially life- or health-threatening gap, as there could be a
signicant delay in appointing a successor guardian. It also creates a judicial
resource problem because a successor guardian must be located. Nursing
homes are likely to provide better care if a guardian is there to advocate for
a resident, who otherwise would have no voice. Some judges recognize the
problem, and despite the statutory limitation, name a community guardian
program to serve—or fail to discharge such a program upon nursing home
admission—as there may be no other viable solution.
38
Nursing homes are likely to provide better
care if a guardian is there to advocate for a
resident, who otherwise would have no voice.
At the same time, some interviewees stated that the community guardian
programs, while knowledgeable, are overwhelmed, have signicant staff
turnover, sometimes turn in incomplete reports, and cannot handle the
pressing need in a timely way. Simply put, they are beyond their capacity.
Part 36 judicial appointment list
New York Judicial Rules, Part 36 (New York Courts) provides for appointments
by the court, including appointments of guardians. If there is no one willing
and appropriate to serve, the courts can identify an attorney or other profes-
sionals on the list to serve as guardian of the person, guardian of the property,
or guardian of both, taking compensation from the individual’s estate if there
is one. The rule provides for a cap on compensation to spread out fee-generat-
ing cases fairly:
• “(1) No person shall be eligible to receive more than one appointment
within a calendar year for which the compensation anticipated to be
awarded to the appointee in any calendar year exceeds the sum of
$15,000.
• (2) If a person has been awarded more than an aggregate of $100,000
in compensation by all courts during any calendar year, the person
shall not be eligible for compensated appointments by any court
during the next calendar year” (Part 36.2(d)).
The cap was recently raised to the $100,000 level to expand the number of
professionals on the list who will take cases.
The court makes some appointments as pro bono guardians in no-fee or
low-fee cases. Interviewees noted it is an unfair option for professionals on
the list. One judge explained it might be asking an attorney to spend 20 hours
39
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
a week on a complex housing case, with no expectation of payment. There is
no data on the frequency of such pro bono or low-fee appointments. Judicial
survey respondents said “Many attorneys will only take fee-generating cases,”
but one noted that some attorneys “will handle pro bono over the year.”
Themes concerning Part 36
appointments
Our surveys and interviews highlighted several themes concerning Part 36
appointments.
Multiple appointment roles. The list includes appointments of guardians
ad litem, court evaluators, court examiners, attorneys for an alleged incapac-
itated person and others. Those willing to take on the tough and time-con-
suming tasks involved in serving as guardian are a minority, and some
respondents said a dwindling minority, especially among attorneys. “Many
attorneys have taken themselves off the Part 36 list. Those who continue to
serve as guardians are overwhelmed.”
Complexity of cases. The cases are challenging and frustrating. They
require knowledge of public benets, subsidized housing, discharge planning,
health and long-term care, property management, Medicaid, and mental
illness. Survey respondents characterized the cases as “high maintenance”
and “time-intensive” appointments that cause “burnout.” One interviewee
likened taking such as case to taking on another family member. Legal practi-
tioners said:
• “I am not comfortable making health care decisions.”
• “I am often the person who has to make unpopular decisions, and the
person I am helping rarely understands the help I provide.”
• “I do not believe judges understand the amount of time, energy, and
expenses that go into managing someone’s affairs when entering a
situation already in disarray.”
• “Property management is extremely difcult, especially if reality is
involved.”
40
• “The current system leaves judges scrambling to nd guardians when
the individual has few assets or various issues and problems that are
time critical.”
Limitations on payment. Our surveys found that the cap, even with the
recent raise, can “eliminate good guardians” and that the scant compensation
“generally overcomes the time-consuming responsibilities.” Several survey
and interview respondents said there is an informal quid pro quo for better
paying cases, but this is not written anywhere, can’t be relied on by attorneys,
and is problematic for judges. One judge we interviewed said, “I would like
to know that when I am presiding in a case where the [individual] will need
a guardian who won’t get fees that I don’t need to make deals with those on
the Part 36 list for them to be appointed.” A legal practitioner stated, “More
people including myself would be more apt to take a low paying case if there
was some guarantee” of better payment or a fee-generating case.
Many practitioners simply said they could not keep up their solo practice
with high-input, low-fee, or pro bono cases. However, a few noted they felt
“an obligation to accept no-fee/low-fee cases” and that it was “gratifying” to
help the people involved. One judge emphasized the “compassion” of some on
the list, particularly knowledgeable elder law attorneys who are dedicated to
their service.
Legal vs. social work needs. A related issue is whether the payment for
attorneys is or should be at their rate for legal work, or at a lower rate
for guardianship services, many of which are not law-related. One judge
commented, “the issue of fees is the elephant in the room as there is no rule
on fees for lawyers who serve as guardian.”
Several respondents remarked that what is really needed in many of the
Part 36 cases is less legal work than social work. Another judge stated that
what is often required is “social, not legal support. Lawyers do not make the
best guardians for those individuals, but they make up a large majority of the
Pat 36 list.” While there are some nurses and social workers on the list, it is
not clear how many are taking guardianship cases as opposed to serving as
court evaluator.
41
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Many practitioners simply said they could not
keep up their solo practice with high-input,
low-fee, or pro bono cases.
Varying levels of expertise. While several respondents lauded the expertise
and dedication of those on the list willing to serve as guardians, others said
the quality was not uniform. One judge explained that there is no way of
knowing how those listed have managed the affairs of their clients. Another
said, “You see 200 lawyers’ names. None of them want to do this anymore
because it’s not cost effective for them.”
Nonprot agencies serving as
guardian
In addition to community guardian programs, which are paid by the local
departments of social services, there are a few additional agencies scat-
tered throughout the state that take guardianship cases but are not under a
contract with social services and have no steady income stream. There is little
income from estates, as most individuals in need are indigent. Some of the
agencies are able to secure small monthly fee payments (typically $450 to
$500) for clients on Medicaid in nursing facilities, which are excluded from
the calculation of the net available monthly income (NAMI) that Medicaid
recipients are typically required to pay towards the cost of care. These fees
are not always available, for example, when the sole source of income is
Social Security and are solely at the discretion of the Department of Social
Services’ approval during the Medicaid budgeting process.
We discovered that no complete list of such agencies existed, and our study
sought to compile a list through queries to interviewees (see Appendix C).
Though it may not be fully complete, it offers the best compilation to date and
invites additions.
42
Overwhelmingly, our survey and interview respondents all highlighted
the dire need for funding for such for-prot and nonprot agencies. They
recognized that TGP offers the Cadillac model (see Section 7), but it has not
been self-sustaining—i.e., court fees and NAMI payments alone are not
enough to support the services and signicant additional funds are needed.
Respondents said:
• “We have insufcient nonprots handling these cases.”
• “Create more Vera projects!”
• “We have one service provider, but when they have a conict or reach
their limit of cases they can take, it is difcult to nd an alternative.”
• “Many of these cases are assigned to nonprot guardianship organiza-
tions which have a limit to how many pro bono cases they will take.”
• “We do have an available not for prot which will act as guardian, but
they require a minimum monthly stipend which many incapacitated
individuals cannot afford.”
• “We need more nonprot organizations.”
• “We need more and better trained nonprot guardianship orga-
nizations which have more personnel to handle dysfunctional
families and psychologically impaired persons as opposed to a solo
practitioner.”
• “We need more funds for agencies to serve as guardians or funds for
those appointed to draw from to compensate them.”
• “There are only two nonprots in the county, and one has stopped
taking cases.”
Is public guardianship the solution?
Testing in two pilots
With the substantial gaps outlined above for indigent individuals named by
the court as “incapacitated” but with no one to serve, the need for a statewide
public guardianship program has been a focus of discussion in New York for
43
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
many years. As early as 1996, an article in an elder law publication set out
“public guardianship issues for New York” (Schmidt, 1996). In 2001, the New
York Courts’ Commission on Fiduciary Appointments recommended that
“public funds should be available to compensate Article 81 guardians in cases
involving minimal or no assets” and noted that “one option is the creation of
a public guardian ofce…“(Commission, 2001). In 2004, the Second Judicial
Department Guardianship Task Force maintained that “the only real solution…
is to establish an Ofce of Public Guardianship” (Supreme Court, Second
Judicial Department, 2004). In 2016, the Brookdale Center for Healthy Aging
study supported “development of publicly funded guardianship programs
that can provide comprehensive case management to eligible clients in need
of services.”
Our study found high support for increased funding, with many referenc-
ing the potential of a public guardianship program. Close to 90 percent of
responding judges and all of our interviewees said there is a signicant need
for increased funding in New York State to provide guardians in these no-fee
and low-fee cases. Comments included the following responses:
• “Provide an incentive for persons to spend time with issues of
strangers.”
• “This should be a Medicaid cost.”
• “We need a public guardianship program, and even more than that, we
need the computer tools to enforce compliance.”
• “Public guardianship is not a panacea, but would greatly diminish the
problem cases, especially where family members are induced to take
cases where they lack the ability to handle and which they undertake
only reluctantly with predictable results.”
In 2018, the New York legislature took a rst step toward recognizing the
unmet need for guardianship service. The legislature provided a $500,000
appropriation for two pilot projects—one in Suffolk County and one in
Nassau County. New York State Senate appropriations language specied that
the funding was “to facilitate the use of non-attorneys to serve as guardians
appointed by a court under Article 81” (New York State Senate, 2018).
44
• Suffolk County pilot. The Hon. Richard Horowitz of Suffolk County is
coordinating a one-year pilot project that will establish a not-for-
profit organization to serve as guardian, using Retired Senior
Volunteer Program members, nursing students, social work students,
and law students to be assigned to manage cases with supervision,
work as a team, and enter information into a database.
• Nassau County pilot. The Hon. Arthur Diamond of Nassau County is
coordinating a one-year pilot project that will use geriatric social
workers as guardians compensated at a rate of $125 per hour.
The judges, as well as several interviewees, explained that the different
models could be evaluated and adapted to meet needs in other areas of the
state. One viable strategy, used successfully in Virginia, is to expand coverage
using similar pilots, moving incrementally toward a statewide public guard-
ianship system. Indeed, the 1996 article on New York public guardianship
cited above noted that in view of the state’s size and diversity, “demonstra-
tion projects could test [various] models’ effectiveness” (Schmidt, 1996).
Section summary
New York has four “guardian of last resort” schemes for individuals who are
indigent, have been judicially deemed “incapacitated,” and have no family
or friends to serve. Each contributes to meeting the need for these persons in
important ways. Each is stretched. Taken together, they fall markedly short of
meeting a compelling need.
New York law and regulations provide for local commissioners of social
services to act as guardian of last resort. In some but not all areas of the state,
the commissioner names Adult Protective Services (APS) to fulll guardian-
ship responsibilities. APS guardianship practices vary throughout the state.
However, APS as guardian is a clearly conicting role, staff is often overbur-
dened, and the system is underresourced.
45
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
New York has four “guardian of last resort”
schemes for individuals who are indigent, have
been judicially deemed “incapacitated,” and
have no family or friends to serve.
New York law also provides for community guardian programs funded
by local social services ofces. New York City has three such programs.
Community guardian programs must relinquish cases when a person enters
a nursing home or similar residential facility, leaving a serious and some-
times life-threatening void where there is no one to make health and personal
decisions and oversee care by the facility. Moreover, the programs are over-
whelmed with cases.
New York Judicial Rules, Part 36, provides for appointments by the court,
including appointments of guardians. The Part 36 list is predominantly
lawyers, though the skills required of the guardians usually extend well
beyond the legal arena and are so diverse as to make it difcult to nd a
single individual appointee well equipped to meet all needs. Additionally, the
number of professionals on the list willing to serve as guardians (as opposed
to court evaluators, court examiners, or other roles) has dwindled and may of
the best are capped out, even with the recent increase in the cap, and cannot
take additional cases. Many cannot afford to take no-fee/low-fee cases of the
enormous complexity and time-intensity required.
New York has scattered not-for-prot social service agencies that, among
other services, take guardianship cases using meager funds from the estates
or small Medicaid stipends where there is any income to be managed. Such
agencies are vastly underfunded to serve as guardian and do not exist
throughout the state. There was agreement by those we interviewed that
funding for additional nonprots, especially those similar to the TGP model,
would help to staunch the unmet need.
46
There was widespread recognition by those we surveyed and interviewed
that there is a marked need for increased funding to provide for a diverse
pool of guardians in low-fee/no-fee cases where there is no one else to serve.
Many, but not all, supported a statewide public guardianship system with
exibility to meet local needs. Two pilot programs are underway which may
provide a model to address some of the unmet needs across the state.
Recommendations
• Funding for diversity of services. New York should provide addition-
al funding for a diverse pool of guardianship and decision support
services. Funding for such services should prioritize living in the
community as a primary goal, similar to TGP (see Section 7). Funding
should include Medicaid payment in nursing home cases.
• APS role in guardianship. New York should identify other approaches
for guardianship services instead of relying on APS through depart-
ments of social services to serve as guardian of last resort. This would
avoid an inherent conict of services. Additionally, it could free up
APS resources for its other important protective roles, including a
critical role in investigating suspected guardianship abuse.
• Community guardian programs. New York should provide additional
funding to the community guardianship programs to meet the press-
ing need and ensure quality services, with consideration to a reason-
able staff-to-client ratio (as recommended by the national public
guardianship study, see Section 6).
• Guardianship for nursing home residents. While recognizing that
not all nursing home residents need guardians, at the same time, New
York should address the current gap that occurs when community
guardian programs must relinquish cases in which an individual
requires nursing home care. Guardians can be needed advocates
for quality of care. Extending the role of the community guardian
programs to selected nursing home cases would prevent an unnec-
essary burden on the court in nding another guardian and ensure
continuity in the guardian’s care and decision making—thus allowing
the guardian to best support individual wishes and needs.
47
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
• Incentives for serving in low-fee/no-fee cases. New York should
provide incentives such as free continuing education courses for
professionals on the Part 36 list, provide incentives for social workers
and nurses to agree to serve as guardians in low-fee/no-fee cases, and
encourage their appointment by judges in appropriate cases where
there is no less-restrictive option.
• Evaluation and expansion of pilot projects. New York should contin-
ue the two 2018–2019 pilot programs to allow for additional time to
measure effectiveness. Based on experience of the initial pilot demon-
stration projects, New York should fund additional projects, building
in a formative evaluation process and moving toward addressing the
unmet need for guardianship and less-restrictive decisional options
throughout the state.
48
Section 5: New York Court
Processes—Barriers to
Effective Service and
Oversight
New York State Mental Hygiene Law Article 81 was enacted in 1992 with a
stated purpose of “establishing a guardianship system which is appropriate
to satisfy either personal or property management needs of an incapac-
itated person in a manner tailored to the individual needs of that person,
which takes in account the personal wishes, preferences and desires of the
person, and which affords the person the greatest amount of independence
and self-determination and participation in all the decisions affecting such
person’s life” (NYS Mental Hygiene Law Article 81.01, 1992).
Since the enactment of Article 81, reviews have sought to determine how
well practice is carrying out the law’s intent—including a 2001 New York
Courts report on duciary appointments (Commission, 2001), a 2004 Second
Judicial Department Guardianship Task Force Report (Supreme Court, 2004)
and others. The Brookdale Center for Healthy Aging at Hunter College
completed an in-depth le review in 14 New York counties, examining a total
of 2,414 Article 81 guardianship case les (Callahan et al., 2016). Along with
TGP, the Ofce of Court Administration assisted the project in accessing the
les. The Brookdale project examined basic demographic data on individuals
served, petitioners, and guardians; reasons for guardianship; length of the
process; monitoring; and outcomes in terms of social services and public
benets secured.
There are many aspects of Article 81 implementation that affect individ-
uals alleged to need a guardian—including those in our target population of
indigent individuals with no one to serve. While some aspects of implementa-
tion were outside the scope of our study, we sought to build on the Brookdale
ndings concerning both timeliness of court processes and court monitoring.
49
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Shortly after the enactment of Article 81, a law review article noted that:
“Expeditious timing is a feature of the new legislation designed to cure a
system ‘plagued with unconscionable delays.’ The legislation states that ‘[a]
proceeding under this article is entitled to preference over all other causes in
the court,’ and sets forth a timetable…These provisions respond to the urgen-
cy of the matters involved where the previous statutes left the fate of schedul-
ing the hearing or trial to the court system.” (Von Stange, 1993)
Article 81 provides for 50 days to complete a full guardianship proceeding.
However, the Brookdale study found an average time of 211 days from the
petition until the guardian’s commission. The Brookdale report named many
potential reasons for delays in court processes, often inherent in the very
nature and complexity of the cases. Other delays, however, may stem from
systemic inefciencies that result in wasted efforts and higher costs—and
that could be streamlined to better meet the needs of individuals and families.
Our surveys and interviews asked stakeholders what “bottlenecks” they saw
and what remedies might work.
Not all of our survey and interview respondents perceived any bottlenecks
in the system—including 40 percent of judges surveyed, almost 37 percent
of court evaluators, 53 percent of court examiners, and 29 percent of practi-
tioners. Others saw delays but reported that while the processes are lengthy,
they appropriately allow for attention to needs and rights, observing that the
50-day statutory timeframe is simply unrealistic and even unfair: “Frankly,
50 days is a ridiculous number. No one’s rights should be infringed upon with
such a rushed judicial process.” Many, however, described various unneces-
sary roadblocks in three phases of the process, as summarized below.
Delays from the petition to the rst
hearing
Article 81 provides 28 days from the date the petition is led until the rst
hearing; yet the Brookdale study found it takes an average of 63 days. Most of
the respondents in our study did not perceive bottlenecks at this stage of the
process—only 20 percent of judges, less than 8 percent of court evaluators,
50
6 percent of court examiners, and 13 percent of practitioners said there are
bottlenecks.
Some respondents perceived delays that were mostly predictable with
guardianship cases, especially contested cases. For instance, many parties
need to be notied; arrangements may need to be made for proceedings
outside of court if the individual cannot come to the courthouse, or other
accommodations may be required; and the evaluation may take longer than
anticipated, especially if the individual refuses to participate (Callahan, 2016).
Court evaluators and court examiners pointed out that it simply takes time
to investigate and secure relevant nancial and medical records—and that
sometimes conicting schedules make it hard to nd a hearing date that
works for everyone. They explained:
• “Indigent alleged incapacitated individuals can be difcult to serve,
requiring adjournments or continuations. It can be difcult to
complete an investigation and produce a thorough report in time. It
can be very difcult to get in touch with doctors and caseworkers. The
alleged incapacitated person will often cancel meetings. Some cannot
be reached by phone. Tracking down family members takes time.
Obtaining nancial information from third parties can take weeks.”
• “There can be signicant delays in the petitioner’s obtaining personal
jurisdiction over uncooperative alleged incapacitated persons. People
rarely move quickly enough.”
• “Attorneys for the parties often need to investigate issues like mental
illness, which require time and effort and contacting third parties.
Additionally, it seems like the pro bono cases sometimes take a back
seat in many attorneys’ caseload” see Section 6.
There can be signicant delays in obtaining
personal jurisdiction over uncooperative
alleged incapacitated persons.
51
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Other delays, though, may be xable:
• Petition forms. The petition is the entry into the system. It can set
the case off on the right track or hold things up unnecessarily right
away. One judge commented, “our clerks reject many petitions due
to errors in form and substance.” Family members and other nonpro-
fessionals often nd it challenging to ll out a petition form. Another
judge remarked that often petitioners fail to tell the court—and
it may not be elicited in the form—that the person does not speak
English, or cannot read English, and that a translator is needed. A
uniform, plain-language, accessible petition form could reduce
time-consuming errors in the petition and make sure that all needed
information is included. Clear instructions and samples can be help-
ful as well. Uniformity could also help clerks to review the form more
expeditiously.
• Court stafng. Judges and court examiners repeatedly noted that
courts are understaffed and stretched thin: “Courts are overburdened
and cannot always get the rst hearing scheduled within the statutory
time.” A recurrent statement throughout the judicial survey was the
need for more clerks to perform the range of administrative chores
necessary to move the process ahead in a timely way.
Finally, court evaluators suggested other practical solutions as well, such as
the following:
• Court evaluators should be provided with signed subpoenas for medi-
cal and nancial information when they accept appointment.
• The court should contact the parties before sending out the order to
show cause to see if they are available on the date shown.
Delays from the rst hearing to the
order and judgment
Article 81 species that the judge should issue an order within seven days
after the hearing, unless for good cause shown. The Brookdale study showed
this phase of the process took an average of 82 days. In our survey, while the
52
majority of respondents did not perceive bottlenecks from the rst hearing
to the order and judgment, some did—almost 27 percent of judges, almost 37
percent of court evaluators, and close to 12 percent of court examiners.
Some survey respondents reported delays due to scheduling issues, the
sheer number of administrative steps involved—and often multiple hearings.
One court evaluator highlighted “transcript delays, backlogs in the clerk’s
ofce, Part 36 appointees submitting afrmations of service, getting signed
orders to the guardian.” Another lamented that “there are too many contin-
uances and also hearings that proceed with the intent of another hearing
because not all parties can attend—a big waste of time, energy and effort.”
Some stated that appointment of a temporary guardian can be useful while
the process is unfolding—and may turn out to sufce, avoiding the need for a
permanent appointment.
Finding solutions short of permanent guardianship. Sometimes, however,
a judge may take extra time to nd the right—and least restrictive—solution
in challenging cases. A court examiner remarked that “Many judges prefer
to settle than try the case, or spread the hearing out over a longer period of
time, particularly in difcult cases.” A judge noted that “we have had some
success in slowing down certain cases where a permanent guardian is not
necessarily needed. Over time, families may resolve their conicts, individ-
uals may execute powers of attorney or make use of other less-restrictive
options.” Another stated that “sometimes a short-term appointment to
complete a Medicaid application, facilitate a discharge or deal with other
immediate needs is sufcient.” Thus, taking some extra time can be benecial
and can result in nding solutions short of permanent guardianship. One tool
increasingly used throughout the country is guardianship mediation—which
can help to sort out particularly tangled cases, especially involving family
disputes (Radford, 2002).
Proposed order. Several court examiners mentioned time consumed with
the proposed order itself: “It may take weeks for the petitioner’s attorney to
prepare an order and weeks for the court to review and sign, leaving everyone
in limbo during that period.” They suggested solutions:
• “It would expedite the process if the court staff could print an order
and judgment right at the hearing rather than wait for one of the
53
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
parties to submit it to court—such delays allow for the possibility of
omissions and mistakes. “
• “A short form order gets the guardian in place immediately so he or
she can begin to get the job done.”
Of course, exibility to tailor the order to the individual needs of the person,
as required by Article 81, is important. But a uniform order template with
selected options could be both efcient and individualized (Frolik, 2002). A
uniform order and judgment form was recommended by the Second Judicial
Department Guardianship Task Force Report as early as 2004 (Second Judicial
Department, 2004).
Delays from the order and judgment
to the commission
Guardian commission. Article 81 provides that the court should issue a
commission to the guardian within 15 days from the decision. The Brookdale
study found it took an average of 66 days. Several respondents in our study
named this as an unnecessary bottleneck—over 53 percent of judges, 19
percent of court evaluators, 29 percent of court examiners, and 25 percent of
practitioners. Repeated comments pointed out that there are court backlogs
and attorney delays, but also that lay guardians frequently don’t realize that
their authority depends on getting not just an order but a commission, and
they end up in a bind when they need to take action and cannot:
• “The procedure is antiquated and relies entirely on the speed of the
clerk.”
• “Many guardians are not fully educated and need help to get their
commissions.”
• “In many counties, it takes an eternity for the clerk to record the notic-
es of entry. I have waited weeks…before I or my clients could obtain
commissions.”
• “The petitioner’s attorney fails to adequately assist the designated
guardian.”
54
Our survey respondents offered practical solutions:
• “Use a simple commission that is attached to a copy of the order, incor-
porating it.”
• “A certied copy of the nal order should serve as temporary
commission.”
• “Make the order the commission.”
• “At the hearing, give all lay guardians a handout explaining the
commission process.”
• “Hire additional clerks.”
Bonding. Another critical and sometimes problematic issue is bonding.
While not a factor in indigent cases, bonding practices may affect some low
to moderate income or higher asset cases. Failure of a proposed guardian
of property to get a bond might or might not cause delay (over 73 percent of
judges said it did not). One court examiner suggested that there should be
bonding services in the court to help family or other lay guardians.
Our survey asked judges to name criteria they use in determining wheth-
er a bond should be set. They named asset amounts, results of background
checks, monthly income, and whether the guardian is a professional. In the
survey, 40 percent of judges said they set bonds in less than half of cases, and
one-third said they set bonds between 50 percent and 65 percent of cases.
Guidelines on bonding may be helpful to judges and clerks, to create more
uniformity of practice.
Court monitoring of guardian
reports
Filing of reports. Article 81 requires the guardian to le an initial report 90
days after the commission and an annual report thereafter. Annual reports
are due May 31 for the preceding year. The Brookdale study found that the
average time between the ling of the commission and the rst report
(whether initial or annual) was 237 days—with longer averages in New York
County and Kings County, and shorter averages in the other counties studied.
55
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Our survey conrmed that a substantial portion of guardian reports and
accountings are not submitted on time. Just over 31 percent of the respond-
ing court examiners said the accountings are submitted on time in 61 to 80
percent of cases, and almost 44 percent said the accountings are on time
41 to 60 percent of the time. None of the responding court examiners said
annual accountings are submitted on time in 81 to 100 percent of cases. (The
remaining 25 percent specied on time lings 0 to 40 percent of the time.) Of
the responding judges surveyed, over 28 percent named “failure of guardian
to le reports in a timely manner” as a barrier that prevents the court from
identifying problems in a low- or no-fee case, and over 46 percent in fee-gen-
erating cases.
Without a timely report the court has no way
of assessing the well-being of the individual or
the extent to which the guardian is carrying
out duciary duties.
Reports and accountings are the primary way in which the court learns of
problems in the guardianship. Without a timely report (or with a failure to
report at all), the court has no way of assessing the well-being of the individ-
ual or the extent to which the guardian is carrying out duciary duties. One
judge commented that “It is hard to know if the guardian is actually doing
visits they should be doing and whether they are doing the best for the person
with the resources at hand.”
Court examiners attributed the delays in submission of reports and
accountings to lack of lay guardian experience and training. Moreover, many
family guardians are full-time caregivers. Legal practitioners said guardians
need time at the beginning of a case to address pressing concerns “as opposed
to paperwork.” Ways to make ling easier, including options for electronic
ling, would help. The National Association for Court Management states that
56
“Ideally, [reporting] forms should be available online and led electronically…
to reduce paper logistics, ofoad costly data entry, and reduce errors and
redundancy” (National Association, 2014). Our study respondents suggested
several solutions to promote more timely reporting:
• Develop uniform initial and annual report forms.
• Email reminders to the guardian about the report deadline.
• Provide specic plain-language instructions about how to complete
the report, with samples.
• Make electronic ling options available.
Also, one legal practitioner observed that banks do not always recognize the
authority of a guardian, accounting for additional effort and delay. The prac-
titioner suggested that the court offer education for banks on guardianship
and develop a form letter stating that the commission grants the guardian
the power to access nancial information.
Review of report. Article 81 requires all reports to be reviewed by a court
examiner within 30 days of ling, yet the Brookdale study found an average
of 210 days before a report is examined. The Brookdale study also found that
“some counties only require the review of reports every other year in low
asset cases, although the statute does not permit anything less than annual
reports.”
Of the judges responding to our survey, over 30 percent named “lack of
court resources to review reports” as a barrier in the annual reporting process.
All 100 percent of the judges agreed that “uniform statewide templates for
guardianship annual and nal reports would make the process more efcient
for all involved. One judge explained, “I think uniformity would make the
job of reporting simpler for lay guardians. I also believe it would simplify
the work of the court examiners and the court staff reviewing the reports.”
Another judge noted that the third department already has such standardized
templates, and they are on the court’s website.
Other critical aspects of report review and court monitoring—such as
court examiner practices and court investigative and sanctioning actions—
were outside the scope of our survey, but some came up on our interviews.
57
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Notably, one judge urged the creation of an ombudsman for the guard-
ianship process—a recommendation that was made as early as 2001 by
the Commission on Fiduciary Appointments. The commission found that
“laypersons believe they have nowhere to go with questions and complaints”
and urged that the court system “designate an ombudsman to provide
information and eld complains about the duciary process” (Report of the
Commission, 2001).
Section summary
In the development of Article 81, maximizing self-determination and expedit-
ing guardianship cases were both prominent features. While it is important
to comply with time deadlines set out in the law, it is also important to focus
on the individual and support his or her rights. The balance may be challeng-
ing. Our study examined issues of timing in court processes and monitoring
to identify solutions that streamline procedures yet preserve rights.
A 2016 le review in 14 counties by the Brookdale Center for Healthy Aging
at Hunter College found that on average, it takes 211 days—signicantly
longer than the Article 81 mandated 50 days—from the ling of a petition for
guardianship to the commissioning of a guardian. Guardianship cases are
complicated and require sufcient time and attention to individual needs and
rights—and this is especially so for no- or low-fee cases with scant resources
at hand and no one to serve. Yet some delays may stem from systemic inef-
ciencies that result in wasted efforts and higher costs. Our surveys and
interviews sought reasons for the delays and possible solutions.
While Article 81 provides 28 days from the ling of the petition to the rst
hearing, the Brookdale study found it takes an average of 63 days. Some
delays are inherent in the very nature and complexity of the cases—time for
needed accommodations, investigation, and evaluations. Other delays may be
addressed through solutions such as a uniform, plain-language petition, as
well as additional court clerks to move the process ahead.
Article 81 species that the judge should issue an order within seven days
after the hearing, unless for good cause shown, yet the Brookdale study
showed it took an average of 82 days. Sometimes judges need extra time to
nd the best and least restrictive answer in difcult cases. Mediation may
58
be helpful, especially with family disputes. However, several of our survey
respondents cited bottlenecks concerning the proposed order, and offered
practical solutions.
Article 81 species 15 days from the date of the order to the guardian’s
commission, yet the Brookdale study found it took an average of 66 days.
This may be due to court backlogs and attorney delays, but also lay guardians
frequently don’t realize that their authority depends on getting not just an
order but a commission. Survey respondents proposed ways to help guard-
ians and to simplify and streamline the commission process. Our survey
also found bonding practices uneven, and that bonding guidelines might be
useful.
Article 81 requires the guardian to le an initial report after 90 days and
an annual report thereafter. The Brookdale study found the average time to
the ling of a rst report is 237 days. Our study conrmed that a substantial
number of reports and accountings are not submitted on time. Often lay
guardians lack experience and training in ling a timely and complete report
and accounting; and survey respondents urged ways of making ling easi-
er. Other delays may be due to lack of bank understanding of a guardian’s
authority. Survey respondents emphasized the need for a uniform statewide
template for initial and annual reports. An additional issue that came up in
the interviews was need for a guardianship ombudsman mechanism.
Recommendations
• Develop uniform documents. New York courts should create uniform
forms for the petition, order to show cause, initial report, and annual
report.
• Facilitate ling of reports to enhance monitoring. New York courts
should generate reminders of ling deadlines, provide reporting
instructions and samples, and offering electronic ling options.
Educate banks about guardian authority, to avoid unneeded delays.
• Expedite guardian commission process. New York courts should
educate lay guardians about the need to get a commission and consid-
er ways to streamline the process.
59
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
• Employ additional clerks. New York courts should provide funding
for the addition of court administrative staff trained to move the
guardianship process forward in a timely way.
• Consider complaint resolution approaches. New York courts should
explore complaint procedures from other states so that problems can
readily be brought to the attention of courts and consider dispute
resolution options such as mediation and ombudsman functions.
60
Section 6: The National
Landscape—Public
Guardianship and
Decision Making Services
The rst national study of public guardian programs was conducted by
Schmidt, Miller, Bell, and New in 1981. Nearly 30 years later, the second
national study was published by Teaster, Schmidt, Wood, Lawrence, and
Mendiondo (2010). Because over 10 years had elapsed since we gathered data
from the programs, we conducted a truncated survey of the programs we
studied earlier to discern important aspects of program functioning, specif-
ically those that might guide the development of a statewide system in New
York. From July–September 2018, as part of the study, we invited guardian
programs that had participated in the national study of public guardians by
Teaster et al. (2010) to complete a brief update of their programs in the United
States.
After multiple attempts to solicit responses, we were able to gather infor-
mation from ve sites in ve states:
4
• Pima County Public Fiduciary (Arizona)
• Ofce of the Public Guardian, Los Angeles County (California)
• Ofce of the Public Guardian (Delaware)
• Ofce of Public and Professional Guardians (Florida)
4 The following ten participants from the previous study were all invited to participate: Pima County
Public Fiduciary (Arizona), Maricopa County Public Fiduciary (Arizona), Oce of the Public Guardian,
Los Angeles County (California), San Bernardino County Public Guardian (California), Oce of the Public
Guardian (Delaware), Oce of Public and Professional Guardians (Florida), Oce of the State Guardian
(Illinois), Cook County Oce of the Public Guardian (Illinois), Public Guardianship Services, Senior Legal
Assistance, and Elder Abuse Prevention, Maryland Department on Aging, and Adult Public Guardianship
and Oce of Adult Services, Maryland Department of Human Services (Maryland).
61
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
• Cook County Ofce of the Public Guardian (Illinois)
The following denitions guided the answers to the questions asked:
• Guardian: A person lawfully invested with the power, and charged
with the duty, of taking care of the person and managing the property
and rights of another person considered incapable of administering
his or her own affairs.
• Public guardianship: The appointment and responsibility of a public
ofcial or publicly funded organization to serve as legal guardian in
the absence of willing and responsible family members or friends to
serve as, or in the absence of resources to employ, a private guardian.
• Public guardianship program: The entity responsible for exercising
public guardianship duties.
Information gathered from the ve
participating programs
Budgets for scal year 2017 were inuenced by the overall need for guardians
as well as population size.
Funding sources were derived from an array of sources, including state
funds, county funds, grants/foundations, client fees, and estate recovery.
Only Delaware had one funding source.
TABLE 3.
BUDGETS BY PROGRAM FOR FISCAL YEAR 2017
PIMA COUNTY
(AZ)
LOS ANGELES
COUNTY (CA)
DELAWARE (STATE
PROGRAM)
FLORIDA (STATE
PROGRAM)
COOK
COUNTY (IL)
$2,420,000 $21,560,000 $680,000 $7,000,000 $7,000,000
62
All the programs were empowered to make decisions about people’s personal
and nancial affairs. All the programs had the following roles: monitoring the
delivery of services, arranging for the delivery of services, and advocating for
services. The Cook County Ofce of the Public Guardian (Illinois) also had respon-
sibility for directly providing some services. In their role as surrogate decision
maker, programs also serve as representative payees, personal representatives of
decedents’ estates, private guardian, and providers of supported decision making.
FUNDING
SOURCES
PIMA COUNTY
(AZ)
LOS ANGELES
COUNTY (CA)
DELAWARE (STATE
PROGRAM)
FLORIDA (STATE
PROGRAM)
COOK
COUNTY (IL)
Federal
State X X X
County X X X X
Medicaid
Grants/foundation
X
Private donations
Client fees X
Estate recovery X X
Other
TABLE 4.
FUNDING SOURCES FOR THE PROGRAMS
PROGRAM
ROLES
PIMA COUNTY
(AZ)
LOS ANGELES
COUNTY (CA)
DELAWARE (STATE
PROGRAM)
FLORIDA (STATE
PROGRAM)
COOK
COUNTY (IL)
Representative
payee
X X X
Personal
representative
of decedents’
estates
X
Private
guardianship
services
X
Supported
decision making
X X
TABLE 5.
OTHER SURROGATE DECISION AND DECISION SUPPORT FUNCTIONS
63
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Petitioning function. The Pima County Public Fiduciary, Arizona; Ofce
of the Public Guardian, Los Angeles County, California; and Cook County,
Ofce of the Public Guardian, Illinois Ofce of the Public Guardian programs
petition for adjudication of legal incapacity. These programs also petition for
appointment of themselves as guardian.
For scal year 2017, Table 6 shows the cumulative total of public guardian
clients served by each program.
We asked the programs to provide for us, for scal year 2017, the approxi-
mate number of people served in the following age groups.
We also asked the programs to provide staff-to-client ratios, which ranged
from 1:30 to 1:80 (Table 8). Teaster et al. (2010) recommended a staff-to-client
ratio of 1:20.
TABLE 6.
TOTAL NUMBER OF PEOPLE SERVED IN FISCAL YEAR 2017
PIMA COUNTY
(AZ)
LOS ANGELES
COUNTY (CA)
DELAWARE (STATE
PROGRAM)
FLORIDA (STATE
PROGRAM)
COOK
COUNTY (IL)
370 3,300 270 3,200 700
TABLE 7.
TOTAL NUMBER OF PEOPLE SERVED IN FISCAL YEAR 2017 BY AGE GROUP
AGE GROUPS PIMA COUNTY
(AZ)
LOS ANGELES
COUNTY (CA)
DELAWARE (STATE
PROGRAM)
FLORIDA (STATE
PROGRAM)
COOK
COUNTY (IL)
People 65+ 50% (185) Don’t know 45% (122) 50% (1600) 66% (462)
People 18-64 50% (185) 39% (107) 50% (1600) 33% (231)
People under
age 18
23 conservatorships
only
TABLE 8.
STAFF TO CLIENT RATIOS
PIMA COUNTY
(AZ)
LOS ANGELES
COUNTY (CA)
DELAWARE (STATE
PROGRAM)
FLORIDA (STATE
PROGRAM)
COOK
COUNTY (IL)
Sta to protected
person ratio
1:30 1:80 1:60 1:40 1:40
64
For scal year 2017, we asked programs to describe the primary residence
clients (Table 9). Residences varied widely across the programs.
Restoration of rights. For scal year 2017, one person subject to guardian-
ship was restored to partial legal capacity in Delaware, and 10 people were
restored to full legal capacity in Cook County, Illinois, which has a signicant
population of younger clients.
We asked the guardian programs to provide examples of cases that were
successful and cases that were challenging. We also asked about strengths
and challenges faced by the programs. Their responses are below.
Examples of successful cases
Pima County Public Fiduciary (Arizona). “Remarkably, even the worst cases
have successful components. I attribute this to our thorough intake process,
PRIMARY
RESIDENCE
PIMA COUNTY
(AZ)
LOS ANGELES
COUNTY (CA)
DELAWARE (STATE
PROGRAM)
FLORIDA (STATE
PROGRAM)
COOK
COUNTY (IL)
Own home or
apartment
X X X
Assisted living X X X
Nursing home X X X
Mental health
facility
X X
Group home X X X
Acute hospital X X X
Jail X X X
Missing or
whereabouts
unknown
X
Other X
TABLE 9.
PRIMARY RESIDENCE OF THE PEOPLE UNDER GUARDIANSHIP
65
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
which includes a weekly triage of new referrals, current investigations, and
ongoing challenges.”
Ofce of the Public Guardian Los Angeles County (California). “Client
within the one year of a mental health conservatorship was able to move from
acute inpatient to a long-term locked special-treatment center and then to
a board-and-care setting. Client has an important and healthy relationship,
which led to a proposal for marriage. The ancé was named as conservator to
ensure ongoing treatment compliance.”
Ofce of the Public Guardian (Delaware). “Contacted by hospital to act as
guardian for an elderly lady with advanced dementia whose son was attempt-
ing to retitle her home in his name and transfer all her funds to himself.
Ofce of the Public Guardian (OPG) prevented the retitling of the home and
prevented the wayward son from taking possession after a review of whether
or not she was able to return home with community and family supports.
After determining there was not a safe way for client to remain in home, the
home was sold and client was placed safely in a facility. OPG prevented nan-
cial exploitation and found a safe placement for client. Her wayward son was
keeping her in the home in order to collect her income and was not providing
appropriate care, resulting in multiple hospitalizations and near death.”
Cook County Ofce of the Public Guardian (Illinois). “Many successes.
Some examples include: 1. We had someone with a once-thriving, then-dilap-
idated bar and restaurant in the Wrigley Field neighborhood. We rehabbed
the bar and restaurant, had the food and liquor licenses reinstated, obtained
an excellent tenant, and then sold the bar/restaurant for a tidy sum for the
person under our guardianship. 2. Every restoration is a successful case.
3. Every individual we are able to assist in exercising the right to vote is a
success. 4. We believe our nancial recovery program to be the largest of
its kind in the country. We have recovered more than $50 million over the
last 10 years for the people we serve. 5. Last year we took a person under our
guardianship, a life-long Cubs fan, to the World Series! Seeing the Cubs in
the World Series was something she dreamed of doing her entire life. Tickets
were very expensive, and she needed a companion, but she had adequate
resources so we were able to achieve this.”
66
Examples of challenging cases
Pima County Public Fiduciary (Arizona). “Appointed as a successor guard-
ian for an adult male whose primary issue is noncompliance with services
and dialysis treatments. He was moved to our county from another jurisdic-
tion secondary to lack of services available in that area. He continues to be
noncompliant and frequently ends up in the hospital. He has only recently
been found eligible for long-term care benets, but placement continues to be
an issue secondary to his behaviors.”
Ofce of the Public Guardian (PG), Los Angeles County (California).
“Older adult living in a condominium owned jointly with brother (but brother
not living in the condo) and condo is in a senior complex. Conservatee has
longstanding relationships with “kids” in the neighborhood, but unfortu-
nately, these individuals are all in gangs. They terrorize the neighbors of the
senior complex and take advantage of the older adult. They have “moved
into” the condo and use it for prostitution and drug use. Law enforcement
unable to stop the criminal activity because conservatee keeps bringing the
gang members and others back into his home. Moved conservatee, but gangs
managed to nd him, and they broke into the condo that PG had re-keyed and
secured. Court has not authorized a secure placement, so every placement
PG arranges, he continues to leave, or the gang nds him to bring him back
home.”
Ofce of the Public Guardian (OPG) (Delaware). “A client with mental
health issues and dementia was unable to remain in her home with supports.
OPG placed her, as she wished, in an assisted living while trying to private pay
for the required amount of time and transition to Medicaid. Client is really
only happy at her home in the community, but she was having delusions and
repeatedly calling the police and other emergency responders. She became
depressed in the assisted living facility and began acting out. The assisted
living facility became unhappy with her being there and attempted to force
her eviction by insisting on 1:1 supervision, exhausting her funds, sending
her to an acute mental health care placement, and then refusing to accept her
back.
67
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
OPG attempted to nd a better placement by working with departments of
aging and mental health. Unfortunately, state agencies serving these popu-
lations do not combine care for physical and mental health issues, forcing a
determination of the primary issue for placement at the expense of the other.
Treatment for paranoid schizophrenia at the expense of treatment of phys-
ical disabilities. Client is currently at a long-term acute mental health care
facility because the state refused to admit her to a long-term care facility,
and she had no private options for that service. OPG thinks it might be in her
best interest to accept primary placement based on treatment of her mental
health. Mental health issues are the largest obstacle to community placement,
which is preferred.”
Cook County Ofce of the Public Guardian (Illinois). “1. The bar/restau-
rant in Wrigleyville discussed earlier. 2. We have many challenging hoarding
cases including cases with severe environmental hazards, such as mold and
chemical contaminants. 3. Some of our nancial exploitation recovery cases
are very complex, challenging, and resource intensive, especially those with
nancial institutions as defendants. 4. We have people going through dif-
cult divorces, which are resource intensive cases.”
Strengths of the programs
Pima County Public Fiduciary (Arizona). “Smaller city where most of our
wards and protected persons reside in the metropolitan area rather than
in rural areas. All Guardian/Estate Administrators are currently licensed.
Arizona requires licensure for nonfamilial appointments.”
Cook County Ofce of the Public Guardian (Illinois). “1. Our outstanding,
caring, compassionate, smart, hardworking, passionate, tenacious interdisci-
plinary staff. 2. Our nancial recovery program. 3. Our home care program.
4. Our sophisticated asset management and collection practice. 5. We imple-
mented one of the rst digital asset-collection programs. 6. Our access to top
consults in virtually all professions due to our location in Chicago.”
Ofce of the Public Guardian (Delaware). “OPG has excellent case manag-
ers and focuses on providing consents that reect what the client wants for
themselves and will advocate strongly for the clients’ desires, despite being
guardian.”
68
Ofce of the Public Guardian, Los Angeles County (California).
“Flexibility and resilience. Staff willingness to do whatever it takes to meet
the needs of the conservatee.”
Challenges that programs face
Pima County Public Fiduciary (Arizona). “Public benets are increasingly
hard to obtain. Mental health issues and services continue to be an issue.
Increasing pressure from county, state, mental health, and hospital provid-
ers to petition on cases that do not meet criteria and fail to have realistic
outcomes. In the past seven years, staff reduction of 25 percent.
We are continually challenged by the misunderstanding of what our
program can do and what is simply impossible due to the lack of community
funding to safeguard vulnerable adults and provide for post-acute care, as
well as on-going custodial supervision and care.”
Cook County Ofce of the Public Guardian (Illinois). “By far, our biggest
challenge is resources. Our resources have been going down every year while
our caseloads, and the complexity of the cases, continue to increase. Last year,
Cook County had a $200 million decit to ll, and next year, it is expected to
be another $80 million.”
Ofce of the Public Guardian (Delaware). “Funding. Our resources are
inadequate to meet the needs of guardianship across the state. Second,
our Judicial Branch considers us an outside program and does not actively
engage, without us, to make needed improvements to guardianship process-
es, such as statutorily requiring less-restrictive alternatives being exhausted
or only imposing limited guardianship. To be fair, the court has edged toward
these things but not embraced any reform efforts, which are desperately
needed to meet the needs of citizens and health care providers.
I think we are making progress in Delaware, but I think there is work
remaining, and I am hopeful we can nd way (more ways) to bring people to
the table and to educate the public. It is difcult without resources.”
Ofce of the Public Guardian, Los Angeles County (California). “Program
is considered an entry-level position and is not appropriately classied
and compensated, so we are unable to retain employees. There have been
69
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
signicant vacancies and turnovers which impacts service delivery and abili-
ty to meet legal and duciary mandates.”
Section summary
While the mix of information from county and state programs around the
country are not representative of all programs, information from each paints
a picture of public guardianship that is illuminating in its own right and
instructive for New York as it contemplates the replication of TGP and the
expansion of public guardianship programs across the state.
Recommendations
• Array of funding. New York programs must have adequate funding
from a stable set of funding sources. Funding derived from an array
of sources, including state funds, county funds, grants/foundations,
client fees, and estate recovery. Only Delaware had one funding
source.
• Scope of authority. New York programs should have authority to
make decisions about nancial and personal affairs if the court order
has such a scope of authority. All the programs make decisions about
people’s personal and nancial affairs.
• Advocate, arrange, monitor. New York programs should advocate
for, arrange, and monitor service delivery to the people served by the
program. Public guardian programs advocated for, arranged, and
monitored services. The Cook County Ofce of the Public Guardian
(Illinois) also had responsibility for directly providing some services.
• Representative payee and supported decision making. New York
programs should serve as representative payees and providers
of supported decisions. Programs serve as representative payees,
personal representatives of decedents’ estates, private guardians, and
providers of supported decision making.
70
• Live at home. New York programs should work to keep people in their
own homes as much as possible. Primary residences of people under
guardianship varied across the programs.
• 1:20 staff-to-person ratio. New York programs should comport to
a 1:20 staff-to-person ratio. Staff-to-protected-person ratios ranged
from 1:30 to 1:80. In the most recent national study of public guard-
ianship, Teaster et al. (2010) recommended a staff-to-person ratio of
1:20.
Program strengths included dedicated staff members, nancial manage-
ment programs, licensure of guardians, an asset recovery program, and
attention to the needs and wishes of the people under guardianship.
Program challenges included difculties obtaining public benets, lack
of mental health services, staff reductions in the face of a rising population
of persons needing guardianship, confusion concerning the role of a public
guardian, insufcient resources, and high staff turnover due to inadequate
compensation of staff members.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Section 7: The TGP
Model—Staff and
Stakeholders’ Assessment
of Effectiveness and
Replicability
An important component of this project was the external assessment of TGP.
For this component of our report, we used a two-pronged evaluation approach
using interviews conducted by telephone. The project investigators Teaster
and Wood interviewed staff members at TGP either one-on-one or as a depart-
ment. We referenced the organizational chart (Appendix A) and interviewed
the following staff members/departments (see Table 2 above). In addition
to interviewing TGP staff members, we interviewed stakeholders identied
as working with the program as suggested by TGP as well as stakeholders
from the Working Interdisciplinary Network of Guardianship Stakeholders
(WINGS) group in New York (see Table 2 above).
Interviews were pre-arranged and approximately one hour in duration.
Questions were tailored to the expertise of the person/department. Questions
included position and time in position, experience with public guardianship,
funding and funding sources, administrative structure (e.g., costs and cost
savings, challenges), functions of the department or program (e.g., protocols,
stafng, community education); characteristics of the clients served (e.g.,
client visits, decision making and supported decision making, clients in facili-
ties, diversity, search for other appropriate guardians, search for less-restric-
tive options, restoration); and monitoring, experience, and assessment of TGP.
After presenting an overview of TGP, we discuss ndings relating to its
administrative structure, least restrictive alternative principle, program
functioning, outreach, staff reections on TGP’s reputation, staff perspec-
tives on challenges and opportunities, project replicability, TGP’s strengths,
TGP’s weaknesses, threats to TGP, section summary, and recommendations.
72
Description of The Guardianship
Project
TGP is a demonstration project of the Vera Institute of Justice (Vera)
begun in April 2005 with support from the New York State Ofce of Court
Administration (OCA) and The Fan Fox and Leslie R. Samuels Foundation
(Samuels). TGP serves as court-appointed agency guardian to a vulnerable,
largely indigent population of persons with disabilities and older people who
may lack family or other supports that enable them to live independently as
possible. In launching TGP, Vera, OCA, and Samuels sought to cast a spotlight
on a missing element of the social safety net, to provide an approach that
humanely addressed critical needs for these people, and allowed key institu-
tions to operate and collaborate more effectively on their behalf. In addition
to providing high quality direct services, TGP actively works to further guard-
ianship policy in New York State by crafting model policies and procedures,
exploring expansion or replication of its model statewide, assessing the
model’s cost effectiveness, and participating in reform discussions with other
stakeholders in New York and nationwide. The Vera Guardianship Project is
the last Vera demonstration project and, at its inception, was anticipated to
become self-sustaining within ve to eight years.
TGP sought to cast a spotlight on a missing
element of the social safety net, to provide an
approach that humanely addressed critical
needs for people, and allowed key institutions
to operate and collaborate more eectively.
Vera, OCA, and Samuels originally planned to have TGP clients at all levels
of income and assets, and to fund the program appreciably with fees from the
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
one-third of clients who were expected to have signicant income and assets.
However, TGP ended up with appointments of mostly indigent clients and a
relatively low percentage of clients with the ability to pay fees. This, there-
fore, necessitated an important shift in TGP’s business model and greater reli-
ance on government contracts and foundation support. (See Budget section
below for more detail on TGP’s funding sources.)
TGP currently provides services in Brooklyn, Manhattan, Queens, and the
Bronx and accepts cases regardless of the client’s economic status. TGP’s
services are largely for very complex cases; the program offers a holistic
guardianship services model. TGP’s model involves the coordination of
services through a multidisciplinary workforce of staff attorneys, social
workers, nance and property managers, and outside experts working
together to address the complex legal, health, case management, and prop-
erty issues its clients face. When appropriate, TGP partners with investment
advisors, skilled volunteers, and pro bono counsel to address specic issues
required to maintain clients in the least restrictive environment possible.
TGP receives its referrals directly from the appointing courts and is typi-
cally called upon to serve in cases where there are limited resources and the
complexities of the case put the incapacitated person at risk of being unnec-
essarily institutionalized in an overly restrictive setting. Some of the common
presenting issues include difculty securing adequate home care, need for
effective real property management, instability caused by severe mental
illness, elder abuse and exploitation, and adversarial landlord tenant issues
arising from client behaviors such as extreme hoarding.
Client census
In calendar year 2017, TGP served a total of 190 clients. TGP clients were 70
percent female, of whom 17 percent were 60 years or younger, 41 percent
were 61 to 80 years, 27 percent were 81 to 90 years, and 15 percent were 91
or older.
5
TGP serves an ethnically diverse population: 52 percent white/
Caucasian, 27 percent black/African American; 15 percent Hispanic; 3 percent
Asian; and 3 percent other/unknown. Clients’ living arrangements are such
that 60 percent resided in their homes or communities, 37 percent resided
in a nursing home, and 3 percent were hospitalized. Over three-fourths (83
74
percent) lived below the New York City median annual income ($66,800),
42 percent lived at or below the poverty threshold ($12,060), and 87 percent
had active Medicaid.
6
In addition to serving as guardian, TGP serves as Social
Security Administration representative payee for 98 percent of its clients.
Administrative structure
TGP staff visit clients at least once a month, even though the law mandates
only four visits per year, in order to prevent or proactively address challenging
issues that its clients face (e.g., dementia, serious medical problems, eviction,
elder abuse, and placement in institutional settings against their will). An
essential component of the work of TGP is accepting cases where a client is
languishing needlessly in a hospital or nursing home because no one will
take on the challenges of transitioning him or her back to their homes or to
a less-restrictive setting with proper oversight. TGP recognizes that keeping
as many individuals as possible in the community can save Medicaid dollars.
For example, a 2015 cost-benet analysis shows that TGP was able to save
over $3.1 million in Medicaid dollars (the majority of which was from nursing
home avoidance for clients), which improved the quality of life for clients and
recognizes and respects each person’s autonomy and dignity (TGP, January
2018). Incorporated into TGP case standards is language mirroring that of the
National Guardianship Association, including that the program is client-cen-
tered and maximizes autonomy.
A unique aspect of the program is that TGP is able to access funding streams
beyond fees that allow the agency to maintain a low client-to-staff ratio allow-
ing the staff to spend more time on individual cases, identify and take actions
on what is best for client, and not have to factor in the number of other clients
waiting. In addition, but difcult to quantify, is the TGP ethos, which is a
unique culture dedicated to this particular type of work. TGP receives a subset
of cases from the court that are very difcult cases, cases that need special
5 Demographic information is for the 151 clients for whom TGP was actively serving as guardian on
June 30, 2017.
6 New York City and federal income statistics and thresholds are for 2017.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
people brought in to handle complex and sensitive issues. It is critical to select
people who are a good t for the program, because their acumen leads to good
outcomes for clients, which is something that sets TGP apart.
An essential component of the work of TGP is
accepting cases where a client is languishing
needlessly in a hospital or nursing home
because no one will take on the challenges of
transitioning him or her back to their homes
or to a less-restrictive setting.
Budget. The annual TGP budget is growing: it was over $1.8 million in
scal year (FY) 2016, almost $2.3 million in FY 2017, and projected to be $2.6
million in FY 2018. Seventy-ve percent of the $2.6 million is from the Ofce
of Court Administration contract mentioned earlier. In addition, 5 percent of
the budget is from a second state contract, 10 percent from a city contract, 5
percent from foundation grants, and it is estimated that 5 percent will come
from court fees and Medicaid exempt payments. The court fees are generally
calculated as a percentage of each nancial transaction and requested at the
time of ling of the annual or nal account, are paid for with client assets
upon approval by the court, and are awarded and paid often years after the
services are rendered. The FY 2018 budget amount is therefore mainly income
received in FY 2018 for services rendered in prior years, the main excep-
tion being the monthly Medicaid exempt payments. The Medicaid exempt
payments (i.e., NAMI), as mentioned earlier, are $450–$500 per month and
subtracted from what the client owes Medicaid to be paid to the guardian
contemporaneously with the rendering of services. Currently, TGP collects
about $55,000 a year in NAMI fees from approximately 10 clients on Medicaid
living in nursing homes.
76
Stafng model. TGP has an executive director to whom all of TGP’s senior
management staff directly report. There are four departments (legal, case
management, nance, and development/communications) and two special-
ties (property management and benets coordination). The Legal Department
consists of a director, a deputy director and two staff attorneys. The Case
Management department consists of a director, eight case managers, and a
benets coordinator. The Finance Department consists of a director and six
nance associates. A real property manager also directly reports to the exec-
utive director. The Development/Communication Department consists solely
of a director of development/communication. TGP also has an administrative
coordinator who oversees two part-time employees who provide clerical and
receptionist support, both of whom are paid by the New York City Department
for the Aging.
Also assisting TGP in its work are various interns, volunteers, fellows, and
temporary staff members who work with the program at any given time.
Human resources and information technology functions are performed
by the central ofce at the Vera Institute and the New York Unied Court
System, respectively.
Stafng ratios. TGP attempts to keep case management to client ratios at
about 1:25; for attorneys, the ratio is 1:50; for nance associates, it is 1:29;
for benets coordination, it’s 1:200; and for property management, it is
about 1:20. The total staff providing direct services to client ratio is 1:9. As
described, there are several different ratios, depending on the department
as well as the longevity of the client; TGP values consistency and attempts to
have the same staff members or teams working with the clients over time.
Training. Every new staff member takes Article 81 training provided by
the Guardianship Assistance Network. Legal training is also provided (Part
36, Fiduciary Training). TGP is working to set up more cross-training, such as
with APS on elder abuse.
Volunteers. As early as 2005, the program began using volunteers. The
volunteers are a supplement to case management and provide clients with
increased socialization. The coordinator matches people who are peers with
each other. Examples of volunteers are a retired police detective who was
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
connected with a retired corrections ofcer. The program has matched about
15 volunteers with clients.
Attrition. TGP is limited as to the salaries it can pay. If staff members move
on, then TGP replaces them by recruiting qualied candidates. TGP conducts
rigorous background checks on its prospective employees. Turnover seems
to come in waves. Case managers are the cornerstone of services, which are
stable when people have remained for two or more years. Turnover, accord-
ing to one former executive director, is no higher than other legal services or
social work positions. The work is difcult, and so people leave due to burnout
and licensing requirements. John Holt is the longest standing member of TGP,
having been with the organization as a full time-staff member since 2010 and
having worked as a legal intern since 2009. There has been signicant turn-
over of executive directors, with four permanent and three interim directors
from 2005 to 2018.
TGP’s least restrictive alternative
principle
TGP uses a least restrictive alternative model that is a driving force of every-
thing the organization does. First, although guardianship powers are crafted
by the courts, TGP chooses how to interpret and use its powers as narrowly
as possible while also keeping the client safe. Second, TGP works to employ
robust and inventive strategies for maintaining its clients in the community,
from pulling together a myriad of community supports to create a sustain-
able and safe care plan to accessing the equity in real property to provide for a
client’s cost of living. When a person is unable to be safely maintained in the
community due to a lack of nancial resources, appropriate place of abode, or
because their care needs are too high, TGP continues to work to ensure clients
are in the least restrictive setting, for example nding a facility in a familiar
neighborhood, with staff who speak a client’s primary language and access to
religious services and culturally familiar foods.
78
TGP uses a least restrictive alternative model
that is a driving force of everything the
organization does.
TGP fosters supported decision making in a variety of ways. Where clients
are able to execute advance directives, TGP assists them in preparing these
documents and making sure their wishes are understood and articulated
accurately. Even when the ability to sign formal documents may be lacking,
TGP strives to understand and incorporate the wishes of a client into its
day-to-day decision making. These efforts help empower the client and scale
back unnecessary power over them so that clients are given autonomy to the
extent possible. Even with this approach, the complete restoration of rights
and termination of guardianship remains relatively rare because of the types
of clients for whom TGP is a guardian (e.g., persons with progressive diseases,
traumatic brain injury, or development disabilities) (Leland, 2018).
Program functioning
Collaboration amongst TGP’s teams is at the heart of program functioning
because of the organizational structure and model. Once TGP is appointed
the guardian, the program determines the extent to which the client can
participate in decision making. Case managers do an initial assessment and
get a sense of the clients’ needs and wants; nance investigates what income,
expenses, and assets they have; the property manager assess their home,
if applicable; and then staff meet as a team (i.e., representatives from the
departments of case management, legal, and nance department) to develop
a plan with which they are constantly balancing autonomy versus safety.
During the team meetings, they determine if there are family or friends that
are or can be supports for the client, though unfortunately, that is not possi-
ble for about half of TGP clients, as they are persons aging alone. In addition
to the client-centered approach that strives to maximize client autonomy in
decision making, TGP must operate within in the boundaries prescribed by
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
the appointing court in the order and judgment and the statutory framework
of Article 81. Within the authority granted by the courts, daily decisions
usually ow from the case managers because they have the most contact with
the clients and often need to make decisions quickly. When complicated situ-
ations arise—such as ones that involve nancial decisions, moving a client,
repairing or selling a property, protecting a client from abuse, addressing
uncleanliness and hoarding, preventing eviction and/or homelessness, etc.—
the client’s entire team is engaged. If further input is needed regarding a
specic client, the team is enlarged to include the executive director so that a
strategy can be put in place. Some specic cases, such as end-of-life decisions,
or using the Family Healthcare Decisions Act, are those for which the director
of TGP makes the nal call. Some decisions, for example permanent place-
ment in a nursing facility or sale of real property, require court oversight and
judicial approval.
Quality assurance. TGP accomplishes quality assurance in a number of
ways. There is general oversight by each department, including a number of
cross checks. Formally, there are two documents—a best-practices manual,
which is expression of what the team should strive to do, and an operating
manual, which details procedures for each department—legal, nance, and
case management. For example, when TGP gets a new client, the program
has developed a procedure for marshaling a client’s assets so that they can
discover the clients’ estate to the greatest extent possible. There is also direct
oversight from the appointed court examiners, generally through the review
of submitted reports, and the appointing court. Also, the program refers to
guidelines promulgated by the National Guardianship Association.
For each client, TGP keeps case notes, including notes by case managers and
notes by the legal team. For the most part, the nance department does not
use the case notes function of the database, but nance keeps a book balance
in the same database. The goal is for the tracking system to be structured
so that all data are in one place. Currently, there is a central database, but it
does not have elds for everything that needs to be tracked. Each department
therefore also maintains its own Excel spreadsheets. TGP is currently in the
process of hiring an expert to upgrade its database, consolidating all track-
ing into the central system and creating canned reports for easier analysis
of data. Also, the current system includes a shared calendar documenting
80
reminders and activities so that the location of coworkers is retrievable at
any given moment. TGP must also prepare reports to its funders, though a
staff remarked that some information is not shared as much as it should be.
Relatedly, one staff member acknowledged that throughout the year, the
program examines case records, but recommended that staff go deeper via
more routinized and sustained effort of by the whole staff.
Preparation of annual reports. Staff members spend focused time prepar-
ing a rigorous annual report as required by Article 81, an important check on
the work TGP does for its clients. Each nance staff member is assigned 25 to
30 clients. The staff member completes the inventory, initial report, annual
reports, and nal report. On May 31 of each year, all annual reports are due
for activities of the prior year. The reports account for all of the nancial
activities undertaken on behalf of the client and must be reviewed by a court
examiner prior to approval by the court. Finance staff works the entire year
preparing for the submission of annual reports by keeping timely records
of nancial activities, aggregating backup documentation, and preparing a
schedule of accountings to keep on track for the 160-plus accountings that
will have to be prepared, reviewed, and led this year. The nance team has
worked over the past several years to increase the automation of the reports
from the existing data in its accounting system and will continue to stream-
line that process to improve efciency and accuracy of reporting.
The activities recorded and tracked by the nance team are also used in
real time throughout the year by all teams to inform decision making for the
clients. Every transaction is recorded, back up documentation is scanned,
and bank statements are monitored and reconciled to the system. The nance
team is also responsible for submitting reports to outside entities, such as the
Social Security Administration, for clients for whom the program serves as
representative payee, which is about 98 percent of TGP clients.
Supported decision making. TGP makes a concerted attempt to support
the decisions for clients who are able to make them (e.g., clothes, furniture,
various items that they might need, advance directives, end-of-life decisions).
Respecting and attending to clients’ wishes is a TGP priority. In many instanc-
es where the court grants TGP broad powers, the organization has chosen to
narrowly exercise them to afford clients greater agency.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
TGP also works to establish and maintain relationships with clients in care
facilities and visits them on a monthly basis just as the organization does
for those in living in the community. TGP works with clients to make sure to
meet client needs and respect client wishes. To do this, TGP staff members
work closely with facility staff, including nurses. TGP faithfully attends care-
plan meetings to ensure that all aspects of clients’ lives are monitored and
addressed.
Cultural diversity and sensitivity. TGP has diverse staff members, includ-
ing Spanish-speaking staff to help clients with language needs and to reach
out to families. Staff are mostly women and one-quarter white. Staff also
include people who are LGBTQ. Staff try to account for religious identities of
clients and try to keep cultural diversity and sensitivity in the front of their
minds, including their dietary needs. Staff acknowledged that sensitivity and
communication needs lters into health care and end-of-life needs and pref-
erences. Said one staff member, respect for each individual “creates a better
situation for everyone when they respect their wishes, and it makes things
less antagonistic.”
We were not made aware of any cultural diversity training. One staff
member observed that TGP has had non-English speaking Asian clients and
has experienced challenges in serving them due to language barriers, despite
attempts to seek outside translation services.
End-of-life decision making. For end-of-life decisions, TGP is guided by the
New York State’s Family Health Care Decisions Act, which, among its other
provisions, allows guardians with health care decision making authority
granted by the court to make end-of-life decisions and provides a patient-cen-
tered framework for those decisions, particularly if a client is in a hospital
setting. The staff tries early on to build a rapport with its clients because, as
one staff member stated, it facilities an understanding of a client’s wishes,
which can be critically important when the time comes to make a decision as
important as those made under the Family Health Care Decisions Act. Absent
the known wishes of a client, and in order to make the best decisions possible
in end-of-life situations, TGP staff reaches out to family and friends to nd
out what clients have verbalized or to speak with persons who might be able
to provide information that could help TGP understand a person’s personal
82
beliefs, including reaching out to clients’ religious leaders if and when
possible.
For end-of-life decisions,
TGP is guided by the New York State’s
Family Health Care Decisions Act.
Responsive to its duties under Article 81, TGP also prioritizes the establish-
ment of a pre-need funeral contract as early in the guardianship as possible,
to help ensure there are adequate resources to fund it and to maximize the
likelihood that clients are able to participate in the planning. Upon the death
of a client, TGP case managers make funeral arrangements and, as required
by Article 81, inform relevant people, such as family members. Staff make
sure that the client is buried with dignity, informed by work done before
death, including a pre-need funeral contract and, when possible, discussion
about wishes.
TGP has protocols concerning securing property and other assets after
death. TGP is usually granted authority to pay for outstanding expenses (e.g.,
charge accounts or electric bills) post-death if said authority existed and the
bills accrued before death. TGP is responsible for ling nal accounting to the
court and distributing funds to the estate. TGP involves the public administra-
tor as quickly as possible, as the majority of its clients do not have a last will
and testament or family members available to seek letters of administration.
Outreach
TGP maintains relationships with legal services, APS, or other entities as
needed, reaching out for additional expertise as needed in order to best serve
its clients. In the beginning of the program, TGP assembled an advisory
committee from New York as well as around the country to guide its program-
matic structure, data collection, and outreach. In addition to helping shape
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
TGP’s model and services, the advisory committee introduced TGP to key
players and helped TGP become known nationally.
Acknowledging that a general lack of understanding about guardianship
exists, TGP is actively involved in community engagement and works with
the courts, helps lead education efforts to educate families, and attends city
council meetings (TGP attends council meetings for the purposes of lobbying).
TGP also reaches out to AARP and APS. TGP initiated the Guardian Assistance
Network (GAN), which was later moved to the Ofce of Court Administration,
which continues to provide training to lay guardians. John Holt, a staff
member from TGP, is one of the presenters at GAN’s quarterly in-person
training, where there are typically 20–30 people in attendance. Mr. Holt
also developed an online version that may be accessed by guardians across
the state. During the year, there are also various panels and informational
sessions that TGP staff attend, as well as posting materials available on the
TGP website www.vera.org/guardianship and in the TGP newsletter. TGP was
featured in the New York Times (2008) and on NPR Marketplace focusing on
cost savings (2006–2007).
Sta reections on TGP’s reputation
Staff members believe that TGP is well regarded in New York City and has
a good reputation with judges who are sending them cases that are more
difcult than most guardianship cases. Sending them these cases reects
the judges’ belief that they can handle complex cases as well as abide by their
maximum caseloads. Said one case manager, “We have a good reputation, in
my opinion.” TGP is also a point of contact related to issues of public policy;
TGP staff are involved in WINGS and the New York State Ofce of Court
Administration Guardianship Advisory Committee.
Sta perspectives on challenges and
opportunities
The TGP model has both challenges and opportunities. The Vera Institute
identies gaps in the justice system and works with community partners to
design a programmatic response. TGP was formed in response to the number
84
of people in need of high quality guardianship services. Since inception,
the plan has been that, if successful and sustainable, TGP will eventually
spin off as a nonprot or part of government. Though delayed, the goal
remains for the TGP model to become sustainable and independent from
the Vera Institute. Still a demonstration model, the Vera Institute launched
TGP because it saw that New York had a lack of guardians with full skill sets
to handle highly complex cases. Being part of Vera unlocks doors, such as
resources and access to data analysis. A challenge is that being a part of Vera
creates another layer of bureaucracy to navigate. Also, opportunities for
branding, strategic planning, and raising public awareness of guardianship
may also be missed due to Vera’s many other focus areas and priorities.
Opportunities for the program would be to increase funding and staff so
that the program can take on more cases and expand the model. Another
opportunity would be to examine case mix for the staff, reducing some for
case managers. Still another opportunity would be to conduct a deep and
annual review of clients’ cases.
There are often signicant challenges in managing client nances. For
example, TGP staff pointed out that banks and nancial rms often do not
understand the role and powers of a guardian, even after presentation of the
court order, and not infrequently, the front line staff at the nancial institu-
tion are completely unfamiliar with the concept of guardianship as distinct
from other duciary appointments such as power of attorney. As a result,
the team does not get responses right away and is sometimes prevented from
exercising their duly granted authority. The nance team recommended that
the banks should adopt a model that works. Some banks have a guardianship
department and can respond promptly.
Examples of TGP cases
Teaster and Wood asked TGP for examples of cases that highlight some of the
complex situations that TGP is asked to remedy in order to make its clients
safe (physically, emotionally, and nancially) and as independent as possible.
The examples below illustrate how TGP’s structure and guiding principles,
described above, combine to create successful case outcomes.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
When asked about activities related to individual cases, one TGP staff
member observed, “TGP spends an enormous amount of time on these [client]
functions. There is no such thing as an average client.”
Case example 1. TGP was appointed as a guardian for a 79-year-old
bedbound client who was living with congestive heart failure in a basement
apartment in the brownstone that she owned. Her reverse mortgage was
in default and pending foreclosure because a previous guardian, her niece,
had taken the proceeds intended to make home repairs and pay the carrying
costs of the property and instead ed with the money. The client was left
with a reverse mortgage in default due to her inability to pay taxes, insurance
premiums, and utility arrears totaling thousands of dollars, and was unable
to repair a home with manifestly unsafe conditions—electric outlets dangling
from walls, unstable staircases, and water damage. The client wanted noth-
ing more than to remain in her home of 40 years, and TGP worked to settle
the foreclosure action with the mortgage company, set up payment plans
to “keep the lights on”, and began making repairs to keep her and the other
tenants safe. TGP also reported the niece’s fraud to the Kings County district
attorney and brought an action in guardianship court to retrieve the misap-
propriated funds. TGP staff worked on this case for dozens of hours, but
before justice could be done, the client unexpectedly died in her sleep. While
this was heartbreaking to everyone who had worked so hard for her, one very
important solace remained—the client was able to remain in her home until
the day she died.
86
Her reverse mortgage was in default and
pending foreclosure because a previous
guardian, her niece, had taken the proceeds
intended to make home repairs and pay the
carrying costs of the property and instead ed
with the money.
Case example 2. TGP became the guardian of a 94-year-old Holocaust survi-
vor living in a nursing home. The gentleman desperately wanted to return
home, but he was not able to make the needed care plan. TGP developed a
safe discharge plan with home care in place so that he could return home.
The client’s Holocaust reparation payments had lapsed, and TGP success-
fully restored them and put in place a sustainable nancial plan to ensure
that the man could remain home for as long as possible. When the client’s
physical condition declined and increased home care services were denied,
TGP successfully appealed and secured the needed home care hours. TGP also
advocated with the man’s landlord to install a ramp outside his building so
that his caregivers and he could more easily access his community. TGP made
sure that the man had access to kosher meals, had special dinners delivered
for the holidays, and matched him with a friendly visitor who could spend
time with him in his home.
Case example 3. TGP became the guardian for an undocumented gentle-
man. A construction worker, he was hit by a car and taken to a local hospital
where he remained in a comatose state. The hospital wanted to discharge
him, as he had no source of insurance beyond the small portion of his care
paid by emergency Medicaid, but no long-term care facility would accept him.
The client’s family had attempted to obtain visas to visit him in the United
States but were denied. TGP met with consulate staff from the client’s home
country and discovered that it had a program designed to help repatriate
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
injured citizens and train their families to provide care. After weighing the
options, TGP felt that a return to the home country would be in the client’s
best interest, as it would allow him to be with his family. TGP negotiated with
the hospital to pay for the cost of having the client take a Medivac plane to his
home country and sought the requisite authority from the court to effectuate
the discharge. TGP was later notied that the client died, surrounded by his
mom and sister.
Case example 4. TGP became guardian for a woman with severe, untreated
paranoid schizophrenia. At the time of appointment, she was involved in an
eviction proceeding, was behaving erratically by calling hundreds of times
to complain about the condition of her apartment, and was barred from
interacting with members of her family by an order of protection issued
in a recently resolved criminal matter. TGP was able to resolve the eviction
proceeding, even negotiating a reduction of the rent owed due to issues with
the condition of the apartment. Unfortunately, the client’s mental illness
remained untreated, and in a delusional state, she violated the order of
protection, was arrested, and sent to Rikers Island. TGP advocated for her to
be placed in its psychiatric unit, where she would be better monitored and
protected, and she was able to secure funds to make her bail. When she was
released, she acted increasingly erratically until, fearing for her safety, TGP
successfully petitioned for her to be involuntarily admitted to a psychiatric
hospital. While she was hospitalized, TGP made arrangements for her dogs to
be boarded, worked with the hospital to put a sustainable care plan in place,
and worked with counsel to defend the new criminal charges that she was
facing. Upon her release from the hospital, TGP helped the client remain as
compliant as possible with her medication, therapies, and court mandated
probation. Working together with her criminal defense counsel, TGP reached
a plea agreement that avoided a felony conviction and the possibility of jail
time. Though much progress was made, the client continues to require active
intervention to prevent her from lapsing into behaviors that put her at risk of
institutionalization.
88
TGP became the guardian for an
undocumented gentleman. A construction
worker, he was hit by a car and taken to a local
hospital where he remained in a comatose
state.
Case example 5. A person living in supportive housing with a diagnosis of
schizophrenia was able to live independently until the system broke down
for him, and he landed in a hospital. He had bed bugs, suffered a mental
breakdown, and was moved to a nursing home where he hurt his knee and
could not return to supportive housing. A TGP case manager helped him have
simple things he enjoyed, such as a honey bun. Still, the client’s health was
failing, and he went into renal failure. The doctors suggested that the client
would need to have a feeding tube inserted. Before that happened, the TGP
case manager brought him a honey bun, which he ate. Eventually, he was able
to eat oatmeal, and later, solid food. Although he is no longer living inde-
pendently, he is happier in the nursing home than when he was originally
admitted, knowing it is the best place for him to get the care he needs. The
case manager who intervened in this case remarked, “A little bit of attention
sometimes goes a long way.”
Case example 6. A client suffered a traumatic brain injury because of an
abusive husband. Though the woman presents well and is highly intelligent,
she has cognitive limitations because of the brain injury, ve kinds of arthri-
tis, and pain management problems. She lives in the same apartment she had
shared with her husband before he was removed and an order of protection
put in place. She had been sleeping on the same mattress for 30 years. TGP
made it possible to purchase a new mattress that reduced her emotional and
physical pain.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Case example 7. A client with developmental disabilities who was unhappy
residing in a group home was given an opportunity to assert his indepen-
dence in a private residence run by the New York State Ofce for People with
Developmental Disabilities (OPWDD). Unfortunately, the client did not do
well without the structure of a group home, and he allowed strangers to use
his new apartment for a variety of inappropriate purposes and engaged in
behavior that resulted in his arrest and incarceration. TGP worked with the
client and his counsel to ensure that he was kept in as safe an environment as
possible while he was in jail and brought about the best possible disposition
of his case. While he was incarcerated, the service provider who contracted
with OPWDD for his apartment and support services cancelled its services
and TGP attempted to work with OPWDD to arrange an appropriate residence
that he could enter upon release from jail. When the client’s criminal case
was resolved, an alternative residence had not been located. TGP staff worked
closely with jail staff to plan the man’s discharge to an appropriate shelter
to avoid street homelessness. Initially, the Department of Homeless Services
(DHS) attempted to deny him services, stating that because of his mental
health and developmental disabilities, he was inappropriate for the shelter
system and could not go through intake. TGP worked with a homeless advoca-
cy organization to reach staff higher in DHS’s organizational structure and,
eventually, helped him receive a bed in a shelter, thus preventing him from
being street homeless.
Stakeholders’ comments
Use of Medicaid funds. Mentioned above, the project investigators Teaster
and Wood interviewed 14 stakeholders, including judges, representatives
from New York State Mental Hygiene Legal Services, court examiners, and
other individuals who were presently or had recently worked with members
of TGP. Interviews of most stakeholder lasted about an hour. Participants
were asked if TGP used Medicaid funds appropriately and effectively.
Respondents all agreed that TGP did so. Said one respondent, “Absolutely.
[They are using funds appropriately] In keeping people out of nursing homes,
which is what Vera is doing. Money is very effectively spent. They are saving
the state money if they keep people in the community.”
90
Performance. Stakeholders were asked for their impressions of TGP’s
performance, and most had a very favorable impression of the program. TGP
was regarded as responsive to questions, and their response rates to tele-
phone calls were regarded as better than other providers with the same client
case mix.
One stakeholder remarked, “Of all the community guardians in my inven-
tory, they are on top of things more than others and are much, much more
detailed in reporting and responses.” However, a stakeholder also remarked,
“Their initial reports are so incredibly detailed, almost overly detailed. They
even specied that the client preferred ‘Peter Pan’ peanut butter.” Another
stakeholder remarked that TGP did not mind serving as a temporary guardian
and saw this openness as a positive attribute.
Project replicability. Participants were asked if they would support a New
York public guardianship program based on the TGP model. Most were in
support of such a program. One person stressed to have the model located in
a place with the greatest need and recommended demonstrating what kind of
model proved to be the most cost effective. TGP was regarded as an outstand-
ing model program because of its focus on keeping people in the community.
Most stakeholders would support replication of the model if it were funded
properly. They acknowledged that TGP remains a model program. One respon-
dent observed, “The people who would save money using this model are the
feds, not the state.”
One respondent emphasized, “It was always a focus for TGP—maintaining
people in the community was a gold standard. The Vera Institute thought it
would be expensive and knew it was a high-end model. Staff at TGP thought
the judges would give them some high-fee cases, but there were two prob-
lems. One, it is hard to buck the system. For the private bar, guardianship was
a source of revenue, with the money being in petitioning. Secondly, if a judge
came to probate from the criminal court, he or she did not have ties to TGP.”
There was general agreement that the model of having a mix of cases that
include both poor people and people with assets would have worked if there
was a way to control the mix of cases, reliably predict fee amounts, and
collect payments in a timely fashion. Theoretically, TGP would have been
able to offset the cases that brought in nothing with fee-generating cases.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Unfortunately, the income generated from the cases with assets has not
been nearly enough to offset that no asset cases combined with the complex,
resource-intensive cases that TGP receives.
TGP discovered that its work produces not only greater autonomy related to
living in the home but also a cost savings from moving people out of nursing
homes and keeping them in the community with a level of care more suited to
their particular functional abilities. For example, a client who was indepen-
dent with most activities of daily living, but was prevented from returning
from a nursing home to an apartment due to the condition of the apartment,
was able to safely live in the community with a minimal amount of homecare
after the apartment conditions were improved. Home improvement services
are much more cost effective than incurring the expense of a nursing home
bed and would likely result in signicant savings to Medicaid.
Other people interviewed thought the model would be replicable with the
caveat that the program should make sure that all alternatives to guardian-
ship were fully explored. As a stakeholder remarked, a number of people in
New York City could avoid guardianship if services were available before the
ling of a petition.
Finally, one stakeholder had this to say about the TGP model: “If you can
make it here, you can make it anywhere,” while another stakeholder said,
“Please create as many Veras [TGPs] as possible.”
Support for public guardianship in New York. People we interviewed were
also asked if they would support a geographically limited pilot public guard-
ianship program (any model) with public funds to be evaluated for replica-
tion. Most were supportive of public guardianship when used as a last resort
intervention. The New York WINGS group is especially hopeful regarding this
outcome.
92
TGP discovered that its work produces not
only greater autonomy related to living in the
home but also a cost savings from moving
people out of nursing homes and keeping
them in the community.
Strengths, weaknesses, challenges, and opportunities of the TGP model.
Stakeholders regarded that a major strength of TGP was that the staff were
experts in their area of guardianship. While many guardians have far-rang-
ing issues with which to deal, TGP tries through many approaches to keep
clients in their homes. Said one stakeholder, “TGP places an emphasis on
keeping people in the community. The holistic services they provide are great
for helping people and is critical. [Their approach] Makes a big difference
for their clients—one that other programs do not have for their clients.”
Similarly, another stakeholder had this to say, “Their team approach is what
distinguishes it. They can provide a full range of services for the individu-
als under guardianships. Their attorneys, social workers bring expertise on
behalf of the individual.” Many stakeholders regarded that TGP is in a catego-
ry of their own.
Stakeholders also pointed out a number of limitations of the program. One
was that TGP is limited in how many cases they can take. One judge requested
to “see if you can get us more [TGPs].” One stakeholder suspected that TGP is
overburdened and underfunded, though not due to any fault of its own. The
stakeholder observed that funding issues have probably stretched them due
to funding structure.
One stakeholder was unhappy with the way TGP marshaled assets. Most
guardians go to the bank, marshal assets, and open a guardianship account.
TGP used to keep all money in one account and track a running balance for all
clients. Thus, TGP could not show a bank statement with the exact amount of
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
money by client. This stakeholder thought that there should be one account
that is individual to a single person, thus limiting problems. Instead, TGP
marshaled funds together in all one big account. (Note, this scenario was true
three years ago but was changed. TGP now opens individual guardianship
accounts for each client and manages over 400 separate bank accounts.)
Stakeholders regarded that the major threat to TGP was inadequate funding
and large caseloads. One stakeholder remarked that, “there was a time when
they were behind on their reporting.” You want to be a model in all respects.
One stakeholder asked, “Would a scaled down version be less costly?”
Stakeholders, at the same time, believed that the TGP model “has gained
traction and that in New York City there is a growing acceptance of what
standards should be in terms of keeping people at home.” Opined one stake-
holder, “I am not sure that that this administration recognizes this, but you
can save dollars by supporting people in the community.”
Another stakeholder suggested that TGP should expand and be able to take
on more cases. To do so, TGP should continue to engage in policy discussions.
Finally, one stakeholder suggested developing a mediation project of some
kind: “Some new cases, such as self-petitions, or pro se petitions, which
are difcult and time consuming, could use mediation. If we could get TGP
involved and work out family guardians, that would be good.”
Section summary
The TGP model is supported both internally by the staff members and exter-
nally by stakeholders. TGP’s team approach is a holistic “one-stop shopping”
approach to the provision of guardianship services, and the low ratio of
guardian-to-protected person affords persons in need of services high-quality
guardianship. TGP is especially outstanding in its efforts to either keep people
living in community settings or to return people to community settings as
appropriate. TGP’s quality of guardianship service is not without costs, and
so the program was previously unable to attain a level of sustainability that
would enable it to spin off from the Vera Institute. TGP’s inability to spin off
from Vera is not due to its programmatic model, however, but rather due to
the need to nd additional funding streams because the mix of high-fee and
94
low-fee/no-fee cases that TGP is appointed does not balance out to cover the
cost of providing the services.
Although the model is a promising one, it is a costly one, and stakeholders
raised this important point. While TGP is successful in a city with a concen-
tration of people, such as New York City, and is likely possible in other cities
across the country with sufcient population density, it would likely need to
be modied if it were replicated in more rural areas and should be piloted to
determine its feasibility, including requirements for technology, training,
oversight, and provision and partnership in order to access services.
Recommendations
• Increase ease of information access. TGP’s reports should be
combined and retrievable in one place; this is possible because
the accounting system is structured to have data all in one place.
Throughout the year, the program examines case records; however,
staff could go deeper via more routinized and sustained efforts by the
whole staff.
• Optimize mix of cases and caseloads. Case managers’ caseloads
should be reviewed regarding staff-to-client ratios as well as the mix
of cases given to each case manager.
• Improve funding model. The original funding model of cases with
estates and no-fee cases should be maximized so that TGP can have
greater sustainability.
• Increase funding. TGP should have more funding in order to take on
more cases.
• Continue outreach efforts. TGP should continue efforts at outreach
and involvement in policy discussions.
• Replicate the TGP model. The TGP model should be replicated and
evaluated. The evaluation should be a formative, process, and summa-
tive evaluation.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
Section 8: Summary of
Recommendations
Who needs services
• Data. New York should continue and intensify its collection of basic
guardianship data to better inform estimates of unmet need and
strategies for meeting the need.
• Supportive services. New York should provide adequate funding for
home and community-based care and affordable housing for indigent
individuals at risk of, or subject to, guardianship—especially congre-
gate housing for older adults where people can age in the community
and easily access support services.
• Social work skills. New York should nd ways to increase the number
of professionals with social work and nursing skills to act as guard-
ians for individuals with no family or friends to serve.
• Less-restrictive options. New York should provide judicial and legal
training on screening for less-restrictive options—including a range
of decision supports and supported decision making, the use of forms
that emphasize screening for such options, and tracking the use of
these options in avoiding unnecessary appointments.
• Restoration of rights. New York court procedures should ensure
access for petitions for modication or termination of guardianship
orders and restoration of rights when guardianship is not needed.
• Increased number of clerks. New York should provide funding for an
increased number of clerks to assist judges with the high volume and
complexity of guardianship cases.
• Increased number of guardians. New York should pursue multiple
approaches toward increasing the number of available and skilled
guardians to serve indigent individuals in need as a last resort after
96
less-restrictive options, including supported decision making, have
been examined.
Who serves as guardian for the
target population
• Funding for diversity of services. New York should provide addition-
al funding for a diverse pool of guardianship and decision support
services. Funding for such services should prioritize living in the
community as a primary goal. Funding should come from a variety of
sources, including fees excluded from the calculation of Medicaid “net
available monthly income” payment in nursing home cases.
• APS role in guardianship. New York should identify other approaches
for guardianship services instead of relying on APS through depart-
ments of social services to serve as guardian of last resort. This would
avoid an inherent conict of services. Additionally, it could free up
APS resources for its other important protective roles, including a
critical role in investigating suspected guardianship abuse.
• Community guardian programs. New York City and/or state should
provide additional funding to community guardianship programs to
meet the pressing needs, ensure quality services, and seek less-restric-
tive options, with consideration to a reasonable staff-to-client ratio (as
recommended by the national public guardianship study by Teaster et
al., 2010).
• Guardianship for nursing home residents. While recognizing that
not all nursing home residents need guardians, at the same time, New
York should address the current gap that occurs when community
guardian programs must relinquish cases in which an individual
requires nursing home care. Guardians can be needed advocates
for quality of care. Extending the role of the community guardian
programs to selected nursing home cases would prevent unnecessary
burden on the court in nding another guardian and ensure conti-
nuity in the guardian’s care and decision making—thus allowing the
guardian to best identify and support individual wishes and needs.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
• Incentives for serving in low-fee/no-fee cases. New York should
provide incentives such as free continuing education courses for
professionals on the Part 36 list, provide incentives for social workers
and nurses to agree to serve as guardians in low-fee/no-fee cases, and
encourage their appointment by judges in appropriate cases where
there is no less-restrictive option.
• Evaluation and expansion of pilot projects. New York should contin-
ue the two 2018–2019 pilot programs to allow for additional time to
measure effectiveness. Based on experience of the initial pilot demon-
stration projects, New York should fund additional projects, building
in a formative evaluation process and moving toward addressing the
unmet need for guardianship and less-restrictive decisional options,
including supported decision making, throughout the state.
New York court processes—barriers
to eective service
• Develop uniform documents. New York courts should create uniform
documents for the petition, order to show cause, initial report, and
annual report.
• Facilitate ling of reports to enhance monitoring. New York courts
should generate reminders of ling deadlines, provide reporting
instructions and samples, and offer electronic ling options. There
is also a need to educate banks about guardian authority to avoid
unneeded delays.
• Expedite guardian commission process. New York courts should
educate lay guardians about the need to get a commission and consid-
er ways to combine or streamline the order/commission process.
• Employ additional clerks. New York should provide funding for the
addition of administrative staff trained to move the guardianship
process forward in a timely way.
• Consider complaint resolution approaches. Explore complaint proce-
dures from other states so that problems can readily be brought to the
98
attention of courts, and consider dispute resolution options such as
mediation and ombudsman functions.
National public guardianship
programs
• Array of funding. New York programs must have adequate funding
from a stable set of funding sources. Funding derived from an array
of sources, including state funds, county funds, grants/foundations,
client fees, and estate recovery. Only Delaware had one funding
source.
• Scope of authority. New York programs should have authority to
make decisions about nancial and personal affairs if the court order
has such a scope of authority. All the programs make decisions about
people’s personal and nancial affairs.
• Advocate, arrange, monitor. New York programs should advocate
for, arrange, and monitor service delivery to the people served by the
program. Public guardian programs advocated for, arranged, and
monitored services. The Cook County Ofce of the Public Guardian
(Illinois) also had responsibility for directly providing some services.
• Representative payee and supported decision making. New York
programs should serve as representative payees and provide support-
ed decisions. Programs serve as representative payees, personal repre-
sentatives of decedents’ estates, private guardians, and providers of
supported decision making.
• Live at home. New York programs should work to keep people in their
own homes as much as possible. Primary residences of people under
guardianship varied across the programs.
• 1:20 staff-to-person ratio. New York programs should comport to
a 1:20 staff-to-person ratio. Staff-to-protected-person ratios ranged
from 1:30 to 1:80. In the most recent national study of public guard-
ianship, Teaster et al. (2010) recommended a staff-to-person ratio of
1:20.
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Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
The TGP model—assessment of
eectiveness and replicability
• Increase ease of information access. TGP’s reports should be
combined and retrievable in one place; this is possible because
the accounting system is structured to have data all in one place.
Throughout the year, the program examines case records; however,
staff could go deeper via more routinized and sustained efforts by the
whole staff.
• Optimize mix of cases and caseloads. Case managers’ caseloads
should be reviewed regarding staff-to-client ratios as well as mix of
cases given to each case manager.
• Improve funding model. The original funding model of cases with
estates and no-fee cases should be maximized so that TGP can have
greater sustainability.
• Increase funding. TGP should have more funding in order to take on
more cases.
• Continue outreach efforts. TGP should continue efforts at outreach
and involvement in policy discussions.
• Replicate the TGP model. The TGP model should be replicated and
evaluated. The evaluation should be a formative, process, and summa-
tive evaluation.
100
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101
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
APPENDIX A.
TGP Organizational Chart
102
APPENDIX B. APS MAP
1/9
CHAUTAUQUA
0/15
CATTARAUGUS
0/3
ALLEGANY
0/10
STEUBEN
1/11
CHEMUNG
2/6
TIOGA
11/34
BROOME
6/34
SULLIVAN
23/49
ORANGE
6/29
DUTCHESS
6/39
ULSTER
4/21
GREENE
23/86
ALBANY
2/12
SCHOHARIE
1/8
OTSEGO
1/5
HERKIMER
4/7
MONTGOMERY
2/9
FULTON
1/1
SARATOGA
1/5
WARREN
0/2
ESSEX
5/13
CLINTON
0/0
FRANKLIN
0/0
ST. REGIS
0/2
ST. LAWRENCE
1/2
LEWIS
1/4
JEFFERSON
2/13
OSWEGO
0/6
ONEIDA
0/0
MADISON
4/33
ONONDAGA
2/7
CAYUGA
0/2
TOMPKINS
0/2
SCHUYLER
0/0
SENECA
0/0
WAYNE
1/2
ONTARIO
3/9
LIVINGSTON
26/109
MONROE
0/7
ORLEANS
0/18
NIAGARA
11/51
ERIE
1/9
GENESEE
0/0
WYOMING
1/6
CORTLAND
1/8
CHENANGO
0/0
HAMILTON
1/9
WASHINGTON
4/24
SCHENECTADY
8/28
COLUMBIA
7/36
RENSSELAER
2/16
ROCKLAND
5/10
WESTCHESTER
0/7
PUTNAM
257/2117
NEW YORK CITY
7/55
NASSAU
2/12
SUFFOLK
4/22
DELAWARE
2017 GUARDIANSHIP FOR ADULTS—COMMISIONER OR DESIGNEE (CONTRACT AGENCY)
New appointments in 2017/ Total cases in 2017
(self-reported data)
Statewide total: 3023 cases in 2017 compare with 2886 in 2016.
New York City: 2117
Rest of the state: 906
Please note: this map only shows cases in which Adult Protective Services is guardian or contracts with a community guardian. It
does not include family, private, or other nonprot guardianship cases.
103
Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York
APPENDIX C. EXPLORATORY LIST OF NEW YORK NONPROFIT AGENCIES SERVING AS GUARDIAN
7
AGENCY COUNTIES SERVED
Bronx Community Guardianship Network, Inc. Bronx
Catholic Family Center Monroe
Center for Elder Law & Justice Erie
Empower Assist Care Network Montgomery, Nassau, Steuben, Suolk
Family Service Society of Yonkers Bronx, Ontario, Rensselaer, Washington
Integral Guardianship Services Bronx, Jeerson, New York, Putnam, Queens
Jewish Association Serving the Aging
8
Bronx, Kings, Nassau, New York, Queens
LCG Community Services—United Guardianship Services Bronx, Kings, Nassau, New York, Queens, Suolk
Lifespan of Greater Rochester Monroe
New York Foundation for Senior Citizens
9
New York
New York Guardianship Services, Inc. New York
Self-Help Community Services, Inc.
10
Bronx, Kings, Nassau, New York, Queens, Wayne
Vera Institute of Justice—The Guardianship Project Bronx, Kings, New York, Queens
7 Note: Vera/TGP sta compiled the initial list for the New York Community Trust study, with additional input from the Oce of Children
& Family Services, as well as study interviewees. It does not represent a complete, nal, or ocial list. Rather, it is an exploratory list as
a basis for further conrmations and additions.
8 New York City Community Guardian Program
9 New York City Community Guardian Program
10 New York City Community Guardian Program
