Improve Guardianship

Disclaimer

Throughout the MPA process, more than 100 proposals were developed thanks in particular to thousands of hours of work by external stakeholders and members of the public. These proposals and the MPA Council commentary are being submitted to the Governor and shared with policymakers and the public to inform policymaking. These proposals represent a starting point for discussion. Further discussion is necessary between relevant state agencies and stakeholders to both refine these proposals and assess which may be appropriate to adopt and implement.

Summary

Establish and fund a statewide Article 81 guardianship program to oversee Article 81 guardianship services, including a committee within the NYS Unified Court System (UCS), and pursue a holistic approach to expanding the awareness and availability of guardianship alternatives by focusing on education, planning, and providing supports tailored to each individual’s specific need.

Justification

Increased need for Article 81 guardianship will continue to grow with the older adult population in NYS. With no single entity charged with oversight of these programs, New York State should establish an annually funded statewide guardianship program to ensure sufficient management and scale of guardianship services. The collection of relevant data and consistent review of the guardianship process would better ensure that older adults in guardianship situations are protected, and proceedings are constantly adjusted to best serve those involved. Creating awareness to guardianship alternatives would help in reducing the number of those utilizing these programs, limited potential abuse, and save money for impacted families.

Full Proposal

Improve scale, management, and oversight of guardianship programs:

• Establish a statewide Article 81 guardianship program, including, at a minimum, $15 million annually. In addition, provide funding to implement proposal and oversee Article 81 guardianship services going forward.
• The UCS would create a permanent committee that will regularly review and, as necessary, recommend changes to the Article 81 guardianship process. This Committee would issue a report of its findings and proposals and any legislative and regulatory amendments needed to effectuate the proposals to the Chief Judge, Governor, and the appropriate Legislative committees within one year of its first meeting and every three years thereafter. The reports would also be available on the UCS’s website.
• The  UCS would collect, aggregate, and report on de-identified Article 81 guardianship data in quarterly reports to the Governor and the Legislature. The reports would also be posted on the Unified Court System’s website so that they are publicly available.
• Take a holistic approach to expanding the awareness and availability of guardianship alternatives by focusing on education, planning, and providing supports tailored to each individual’s specific needs. The goal is to reduce the number of Article 81 guardianships and for individuals to maintain as much autonomy as possible. The designated state oversight office, as part of the proposed Article 81 guardianship program (see Number 1, above), would expand the availability and usage of existing alternatives through:
  • The development of standards for programs that help individuals access existing alternatives that could be implemented prior to or in lieu of full guardianship.
  • Ensuring that such programs are included in a comprehensive benefit resource website containing an up-to-date, searchable index of services.
  • The development of standards for programs that can provide education about alternatives to community service providers, judges, non-profit guardianship providers, local offices for the aging, and the public.
  • Promoting the availability and usage of alternatives on its website, social media, etc.
• Consider a systematic and integrated approach to accessing available alternatives to guardianship across a variety of New York State programs, systems, and providers when the need for guardianship can be delayed or prevented. Expand the awareness and availability of alternatives to guardianship to reduce the number of guardianships and for individuals to maintain as much autonomy as possible. These include, but are not limited to:
  • Advance directives (e.g., future care planning, Power of Attorney, health care proxies).
  • Bill paying assistance.
  • Encouraging individuals to discuss their wishes with family, friends, and caregivers.
  • Making medical appointments.
  • Money management.
  • One-shot guardianships.
  • Securing in-home and community-based services.
  • Supported decision making.
• Develop standards for the variety of guardianship alternative programs and education about programs to court evaluators, examiners, community service providers, judges, local offices for the aging, non-profit guardianship providers, and the public. Ensure such programs are included in New York Connects and promote the available of alternatives widely.

MPA Council Commentary

This proposal is categorized as long-term. This proposal only includes Article 81 guardianship, but does not include Article 17-A guardianship, which is for individuals with intellectual and developmental disabilities. It is important to note that neither the Article 81 nor Article 17-A guardianships are exclusive to the elderly population as there are approximately 4,444 guardianships statewide inclusive of all ages of adults. The creation of any new guardianship infrastructure would require collaboration between NYSOFA OCFS (as well as OMH and OPWDD to support individuals eligible for both types of guardianship described above). State agencies are engaged with the court system and advocacy organizations on an ongoing basis to identify opportunities to strengthen the guardianship system and offer alternatives to guardianship for the protection of older adults and people with disabilities. Any additional resources or funding allocations would be subject to the annual budget process and available resources.