Nina Kohn Testifies to Senate Special Committee on Aging and Social Security Administration
On April 18, 2018, College of Law Associate Dean for Research and Online Education and David M. Levy L'48 Professor of Law Nina A. Kohn testified in Washington, DC, on guardianship abuse and reform and financial decision-making for people with disabilities.
During the morning, Kohn testified to Senate Special Committee on Aging hearing on guardianship abuse at the invitation of Committee Chairman Sen. Susan Collins of Maine and Ranking Member Bob Casey of Pennsylvania. At the hearing—titled “Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust”—Kohn discussed the need for guardianship reform and potential legislative responses. Kohn’s testimony included a discussion of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), for which she served as Reporter.
In the opening statement, Senator Collins framed the issue of guardianship abuse with heart-rending anecdotes from Nevada and Maine about the exploitation of elders at the hands of unscrupulous, court-appointed guardians. “Individuals can lose practically all of their civil rights when a guardian is ordered,” said Collins. “It is a legal appointment made by a court, and in many cases it is justified and protects the individual. But ... in some cases the guardian exploits the vulnerable person, and it is often very difficult to reverse the guardianship.” Currently, an estimated 1.5 million adults are under guardian care.
However, according to a Forbes summary of the proceedings, the panel of four experts told the committee members that “the vast majority of elder financial abuse by guardians can be prevented.”
In her testimony, Kohn identified four fundamental problems with the current guardianship system in the United States:
Turning to reform of the system, Kohn noted that the 2017 Elder Abuse Prevention and Prosecution Act requires the US Attorney General to publish “model legislation relating to guardianship proceedings for the purpose of preventing elder abuse.” Kohn explained that such exemplary legislation now exists. The UGCOPAA, explained Kohn, clearly addresses the four problems she enumerated.
- Some people who are subject to guardianship should not be.
- Many people subject to guardianship are subject to more restrictive arrangements than they need.
- A subset of guardians act in ways that violate the rights and insult the humanity of those they serve.
- Existing systems and rules unintentionally create incentives that exacerbate these problems.
Specifically, the Act:
- Provides clear decision-making standards for guardians.
- Incentivizes limited guardianships over full ones by making it easier to petition for a limited guardianship.
- Limits the ability of unscrupulous guardians to drain assets by charging unreasonable fees.
- Creates new mechanisms to monitor guardian behavior at minimal cost to the public, by leveraging persons interested in the welfare of the individual subject to guardianship.
“In short, the Act provides a smart, fiscally responsible model for states,” Kohn said. “Its widespread enactment will bring about the reform necessary to curb guardianship abuse.”
Kohn also suggested to the committee that guardians be mandated to inform the courts when people under their care are able to make their own decisions again. As reported by Forbes, Kohn explained that many stroke victims, for instance, can quickly recover their decision-making ability. “A guardian should be appointed only when a person cannot make their own decisions and is at risk of harm without the aid of someone to oversee their affairs,” said Kohn.
In the afternoon, Kohn testified to the Social Security Administration (SSA) at its National Disability Forum on “Financial Independence: Directing the Management of One’s Social Security Benefits.” At the session, Kohn discussed reform of the Representative Payee Program, a Social Security Administration initiative that provides financial management for beneficiaries who are unable to manage their Social Security or Supplemental Security Income payments.
Kohn’s testimony focused on the steps that can be taken to increase the likelihood that SSA appoints representative payees (individuals who manage Social Security benefits for another) for beneficiaries who need them, and not for those who do not. She discussed how parallel issues are addressed in the context of guardianship, as well as lessons the Administration could learn from UGCOPAA.
For instance, Kohn urged the SSA to tie appointments of representative payees to beneficiaries’ functional needs and suggested how this might be facilitated. Moreover, Kohn recommended that better processes for termination of appointments and restoration of beneficiaries’ rights be created, and she discussed the relationship between surrogate appointments and supported decision-making and the role of person-centered decision-making standards.