In this blog series, I am discussing the need for a better guardianship system in Indiana. In the first installment, I introduced the idea of the three-legged guardianship stool of access, quality, and accountability. In my last blog post I discussed ways to increase access to guardianships. Today I will talk about improving the quality of guardianship services in Indiana.
1. Mandatory Training of Non-Professional Guardians.
The role of a guardian can be complex – that is if we want guardians to do their job well. Without a doubt, a trustworthy family member is almost always the most appropriate person to serve as guardian. Their love for the protected person, their familiarity with the protected person’s values, preferences, and interests make them uniquely qualified to assume the guardianship role.
However, as well-meaning as they may be, most lay persons will not necessarily step into the guardianship role fully equipped to do the job well. Will they know how to choose a Medicare drug plan? Will they be able to successfully navigate the complicated Medicaid application process? Will they know how best to advocate for quality care for their loved one in a nursing home? Will they even know what good care in a nursing home looks like? Will they know how to ask questions of doctors in the midst of a health crisis?
Many such individuals walk into the role assuming that intimate knowledge of the protected person is enough and feel no need for training. And even if they would welcome education and training on pertinent topics to beef up their abilities as guardian, they do not know where to get such support.
Our courts could make some level of training mandatory for non-professional guardians. Even if the mandatory training were minimal, it would help reinforce the importance (and complexity) of the job of guardian and, in doing so, help encourage the voluntary pursuit of further education and training.
2. Family Guardianship Resource Center.
Mandating training is pointless unless resources are readily available to the non-professional guardian. Our courts could create a resource center that helps connect such non-professional guardians with the resources that would help them do their job well. The American Bar Association has created a list of video resources for guardians which may serve as a model.
Additionally, family guardians should have access to help and guidance when they need it. Early and ongoing training is important, but there will be times when a family guardian could simply use some help, bounce ideas off someone else, or be pointed in the right direction.
Already there are long term care ombudsmen available for nursing home and assisted living issues. Similarly, there is a disabilities ombudsman available to help resolve issues involving services received through the Bureau of Developmental Disabilities Services (BDDS). Wouldn’t it be nice if a family guardian could likewise contact a guardian ombudsman to help guide them on issues as they arise?
Training videos, articles, links to disease support groups, chat rooms, court forms are all resources that could be housed in a single Indiana Guardianship Resource Center.
3. Certification and/or Licensure Requirements for Professional Guardians.
If you are over the age of 18 and have a pulse, then you meet all the requirements necessary to be appointed a guardian, for anyone, by our courts. Within the guardianship code itself there are no age requirements, no relationship requirements, no educational requirements, no certification or licensing requirements, and no residency requirements. The court “shall appoint as guardian a qualified person or persons most suitable and willing to serve…” without limitation, except for disqualifying convictions of the proposed guardian.[1]
Granted, it should be fair to say that those actually serving as professional guardians in Indiana are people actually interested in providing a needed service and trying hard to do a good job, often for low pay. Still, imposing certification or licensure requirements on professional guardians would have the effect of truly “professionalizing” the profession by defining certain standards of practice and creating a mechanism for disciplining errant actors.
Certification and licensure are similar in concept and often used interchangeably, however there are differences. Certification involves a voluntary process vis-a-vis a non-governmental organization or trade group, whereas licensure is a state-mandated condition of professional practice.
The Center for Guardianship Certification, which is allied with the National Guardianship Association, provides for the certification of professional guardianship with a National Certified Guardian (“NGC”) designation. In order to maintain the NCG status one must attend (and report) continuing education credits. There are a number of NCG’s in Indiana.
Yet, Indiana has no requirement for NCG status to practice as a professional guardian, nor are there any professional benefits to NCG status in Indiana other than the stature that comes with the certification. Indiana could either require NCG status as a condition of appointment (or as a condition of payment from the protected person’s funds, which the courts have power to control), or the state could create its own professional licensure structure – something that is, frankly, unlikely in Indiana.
On the other hand, there are ways in which the NCG status could be incentivized. The courts could develop their own criteria for measuring and adjudicating compensation requests from professional guardians, for instance factoring in a premium rate for those holding NCG status. The Medicaid income set-off measures discussed above could be increased for NCG’s only. Indiana’s guardianship code, specifically Indiana Code section 29-3-5-4, could be modified to require courts to factor in NCG status in weighing the suitability of a proposed guardian.
Any number of steps, many simple to implement, could be taken by the legislature, state agencies, and/or the courts themselves to promote NCG status. In doing so, public awareness would be heightened to understand and appreciate the profession of guardians.
4. Re-Codification of Guardianship Code.
A re-codification of the guardianship code in Indiana might appear to be irrelevant to the question of quality guardianship services. But the fact is that the code is deficient in a couple of ways directly bearing on the quality of guardianship.
Several things about Indiana’s guardianship code’s structure can be maddening to the practitioner. First, the guardianship code (Ind. Code § 29-3, et. al.) frequently incorporates by reference language in the probate (Ind. Code § 29-1, et. al.) requiring a back-and-forth reading of certain sections and serving more to confuse than clarify. (If you want a display of byzantine legislation, see Indiana code section 29-3-2-6.) Second, the code mixes references to minors and incapacitated adults, sometimes in ways that leaves the reader shaking their head. Third, the organization of the code sections is bewildering.
The result of this train wreck of a code structure is that large parts of the code are simply ignored by judges, attorneys, and guardians alike. Guardians ad litem are not appointed in most guardianship cases despite the mandatory language in the statute; temporary guardianships are appointed routinely with plenary powers despite the mandatory language in the statute requiring a specific enumeration of powers for purposes of address the emergency presented; and in some counties guardianships are appointed without hearing, to name but a few.
Why is this so? Generally speaking, these scofflaws are not malicious in intent, but rather are either ignorant of the guardianship code provisions or lost in the jumble of code sections applicable. Sometimes code sections make little sense in practical terms.[2] The corrosive effect of all this is that guardians tend to operate on instincts rather than operate within the parameters of law designed to protect the rights of the protected person and the quality of the services being performed.
The guardianship code is unique from other parts of Indiana’s code in that it needs to act in a way as a “policies and procedures” manual for guardians and a management guide for courts to “manage” the work of the guardians. To function efficiently, the code itself needs to be redesigned to be more user-friendly. If we expect guardians to meet certain quality standards, we must start by providing a quality code.
While we’re at it, the guardianship code should be modified to include standards of practice or, better yet, incorporate the National Guardianship Association Standards of Practice by reference such that our law would require guardians to operate within those standards. Also, procedures should be tightened to force practitioners and the courts to consider proper limitations on the guardian’s powers.
5. Expanded Use of Limited Guardianships and Protective Proceedings.
When we think about “quality” in the provision of guardianship services, we should also be thinking about lesser restrictive alternatives to a plenary guardianship. Lesser restrictive alternatives include health care power of attorney, general durable power of attorney, POST form, Social Security Representative Payee, Supported Decision-Making Agreements, and anything else short of a full, plenary guardianship.
The Indiana Guardianship Code now requires all petitions for the appointment of a guardian to describe “the petitioner’s efforts to use less restrictive alternatives before seeking guardianship.” Ind. Code § 29-3-5-1(11). Practitioners should take this requirement seriously and should discuss all viable options with their clients.
Indiana’s guardianship code provides for limited guardianships (Ind. Code § 29-3-5-3) and for protective orders. Ind. Code § 29-3-4-1. But these more limited forms of powers are seldom used in Indiana. There are a number of reasons for this, but with greater emphasis on their use the overall quality of guardianship services can be improved, if for no other reason than it forces a broader respect for the protected person’s individual autonomy. Think of plenary powers as an elaborate Swiss Army knife with all kinds of tools, versus limited powers or protective orders as a specially designed surgical knife. The former may be able to do more, but the latter may do the job that needs to be done better.
Conclusion
The above suggestions would go a long way to improving the quality of guardianships offered in Indiana. Most of these suggestions will not happen overnight and without new sources of funding. However, practitioners can take simple steps to ensure their guardian clients are equipped to do their job. Here are several suggestions:
• Provide your client with our free guardianship handbook (scroll to the bottom).
• Provide your client with the Court’s guardianship instructions and carefully go over each requirement to ensure your client understands what is expected of them. If your county does not have instructions, use Marion County’s Instructions.
• Provide your client with the National Guardianship Association’s Standards of Practice.
• In the initial guardianship consultation, go over different less restrictive alternatives with your client. Sometimes a client is willing to try an alternative and if it doesn’t work or isn’t practical a guardianship can be filed at any time in the future.
[1] Ind. Code § 29-3-5-4. Only certain felonies serve as a barrier. The disqualifying felony convictions all involve sexual violence and sexual misconduct: Ind. Code § 29-3-7-7(1) – a “sexually violent predator,” as elaborately defined under Ind. Code § 35-38-1-7.5; Ind. Code § 29-3-7-7(2) – someone convicted of child molesting under Ind. Code § 35-42-4-3 or sexual misconduct with a minor (as defined by Ind. Code § 35-42-4-9), if the victim was under age 16 and the misconduct involved the use or threat of deadly force, was done while armed with a deadly weapon, or that resulted in bodily injury; Ind. Code § 29-3-7-7(3) – was under age 18, but convicted as an adult of: Rape (Ind. Code § 35-42-4-1), deviate criminal conduct (before its repeal) (Ind. Code § 35-42-4-2), child molesting (Ind. Code § 35-42-4-3), vicarious sexual gratification, using deadly force or threat of force if armed with a deadly weapon, or the use of a drug. (Ind. Code § 35-42-4-5(a)(2)), vicarious sexual gratification resulting in serious bodily injury. (Ind. Code § 35-42-4-5(a)(3)), directing, aiding, inducing, causing a child under 16 to engage in sexual intercourse with another child under 16. (Ind. Code § 35-42-4-5(b)(1)), directing, aiding, inducing, causing a child under 16 to engage in bestiality. (Ind. Code § 35-42-4-5(b)(2)); or directing, aiding, inducing, causing a child under 16 to engage in sexual intercourse with another person. (Ind. Code § 35-42-4-5(b)(3)).
[2] A perfectly good example: Ind. Code § 29-3-9-2 provides that “[a] guardian … may, with the approval of and under such conditions as may be imposed by the court after notice and hearing, change the physical presence of the protected person to another place in Indiana.” Really? So if I am guardian for a protected person and choose to move them from one nursing home to another, even in the same city, I must first file a petition and have a hearing with notice?
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