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tv   Senate Aging Committee Hearing on Guardianship Process  CSPAN  November 29, 2018 4:57pm-6:31pm EST

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senator susan collins chairs the hearing. it's an hour and a half. good afternoon. earlier this month, a former state legislature, legislator in maine, was convicted of carrying out one of the worst cases of elder financial abuse in our state's history. the man who is also a securities agent was found guilty of stealing more than $3 million from two elderly widows. while these women viewed the man as the protector of their
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accounts, in reality, he actually preyed on their trust and vulnerability after their husbands died. rather than protecting them, this individual slowly drained their bank accounts over a period of seven years, according to the courts. maine found that the man used his position as a trusted financial professional and a close family friend to groom his victims in order to commit his crimes. he ingratiated himself with these families, assuming power of attorney and becoming the trustee of their accounts. he used the funds under his control as his personal piggy bank, covering everything from travel and fine dining, in the
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united states and europe, to purchasing and renovating an expensive home in california's wine country. maine plans to seek full financial restitution. the harm that this individual has caused to these women and to their families is, however, irreparable. this abuse by a trusted adviser is a crime that no individual or family should ever have to face. while appalling stories such as these remind us of the fraud that can be perpetuated against vulnerable individuals, there are also many stories of guardians and conservatores who have protected seniors against
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such abuse, preserving both their dignity and their assets. when a pastor in maine befriended an elderly woman under false pretenses at an assisted living facility earlier this year, it was her conservator who stepped in and protected her from precisely this kind of exploitation. before the pastor could steal her money and assets, the conservator notified the police and put a stop to the abuse. it is not difficult to imagine the harm that could have come without the intervention of this trusted guardian. we must do more to make success stories like this one the norm. today, our committee is releasing a bipartisan report to help change the tide, implement reforms, and restore trust in guardianship.
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titled ensuring trust, strengthening state efforts, to overhaul the guardianship process, and protect older americans, the report is the culmination of this committee's year-long work, investigated guardianship systems. an estimated 1.3 million adults are under the care of guardians, family members, or professionals, who control approximately $50 billion of their assets. guardianship is a legal relationship created by a court that is designed to protect those with diminished or lost capacity. we have found, however, that in too many cases, the system lacks basic protections, leaving the
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most vulnerable americans at risk of exploitation and fraud. throughout the course of the year, we have heard harrowing tales from families around the country who are struggling with abusive guardians. we also spoke with families who had heartening stories to share, of dedicated and faithful guardians, stepping up to protect the assets of seniors, with dementia and other conditions affecting their capacity. a good guardian can provide years of support for a protected individual, sometimes it is a disabled child, ensuring a full life directed wherever possible by the person's own choices and preferences.
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once a guardianship is imposed, however, the individual's rights are removed, and oversight to protect the individual from abuse, neglect, and exploitation becomes critical. we have gathered during the past year much information, analysis, and recommendations from states, courts, and organizations, representing older americans, and those with disabilities around the country. we have received more than 100 comments identifying gaps in the system, and more important, offering solutions. we have found a pattern of barriers to proper oversight, and we have identified a need for greater use of alternatives to guardianship.
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we have found persistent and widespread challenges that require a nationwide focus in order to ensure the guardianship system works on behalf of the individuals it is intended to protect. the committee's report outlines policy recommendations at the local, state and federal levels, that would improve outcomes for americans subject to guardianship. many of these recommendations are reflected in legislation that the ranking member, senator casey, and i, have authored, called the guardianship accountability act. this bill would promote information sharing among courts and local organizations, as well as state and federal entities, encourage the use of background checks, and less restrictive alternatives to guardianships, and expand the availability of
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federal grants targeted at improvements in the guardianship system. i would invite all of our colleagues to join us in supporting this legislation. today, we will hear from states that are making progress at better protecting those placed in guardianship arrangements. the number of americans age 65 and older is projected to more than double to, from 46 million today, to more than 98 million by the year 2060. therefore, the issue of ensuring strong guardianship oversight will only become more urgent in coming years. and as commissioner ham well knows, maine is particularly affected by this demographic
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change, as the oldest state in the nation by median age. protecting older americans from financial fraud and exploitation has long been one of my top priorities as chairman of this committee. from our toll-free fraud hot line, to new laws such as seniors safe, that encourage financial institutions to flag suspicious activity, our efforts to combat fraud and crack down on criminals who are always seeking new ways to steal the hard-earned savings of our nation's seniors, have produced results. on guardianship, the committee's report uncovers significant challenges that remain. in our hearing today, we will examine the practical steps that can be taken to improve a system that is intended to help
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safeguard those who need it most. i'm now pleased to turn to our ranking member for his opening statement. >> chairman, collins, thank you very much, thank you for holding this hearing. and for your work on these issues for many years. i'm pleased that the committee's 2018 annual report addresses this important subject matter. this report is the culmination of a year's worth of research and analysis and includes input as the chairman said over 100 stake holds, advocate, representatives of the state courts and state officials. it is abundantly clear that something has to be done. as the title of the report suggests, to ensure trust in our guardianship system. while most guardians act in the best interest of the individual they care for, far too often, we have heard horror stories, and that's probably an understatement, of guardians who have abused, neglected, or
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exploited a person's subject to guardianship. as our report notes, there is, there are, i should say, persistent and widespread problems with guardianship around the country. for instance, we found deficiencies in the oversight and monitoring of guardians. we have also found that courts sometimes remove more rights than necessary by failing to consider less restrictive alternatives to guardianship. and importantly, it is universally agreed upon that there is also a lack of reliable detailed data to inform policy makers. this is simply unacceptable. we have a sacred responsibility to ensure that no one, no one loses a house, or a life savings, or is needlessly deprived of their rights because a guardian abused their power.
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today, i look forward to hearing about steps that states have taken to reform guardianship as well as the steps that must be taken to further improve the guardianship system. as chairman collins mentioned, we are releasing bipartisan legislation which will help states improve guardianship oversight and data collection. we look forward to receiving feedback on the bill, so we can work together next congress to pass legislation to improve guardianship all across our country. guardianship is supposed to be protective. too often, it has not been
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protective. >> we must do everything in our power to make sure we get it right all the time. again, thank you, chairmanle coen, for hold -- collins for holding the hearing and thanks to our witnesses for lending your time, your expertise and your knowledge at this particular time. thank you. >> thank you very much, senator casey. we will now turn to our witnesses. first, we will hear from kate boyko, who is the senior court research associate at the national center for state courts in williamsburg, virginia. she testified before this committee at its 2016 hearing on guardianship when we first started getting into this issue. in her new role at the national center for state court, ms. boyko has become a national resource on guardianship issues, and opportunity for improved court oversight. next, i'm delighted that we will hear from bethany ham, the acting commissioner for the maine department of health and human services. commissioner ham has served in the department for more than 30 years.
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currently the maine department of health and human services has legal guardianship and conserve toreship relationships with approximately 1,300 adults. i look forward to your testimony this morning. i now will turn to our ranking member to introduce our next witness, from the commonwealth of pennsylvania. >> thank you, chairman collins. i'm pleased to introduce karen buck. karen, from philadelphia, pennsylvania. as one of our witnesses today. but more importantly, for purposes of today's subject matter, karen is the executive director of the senior law center, which is located in philly. it provides legal services to older pennsylvanians, it provides as well direct representation, referral
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services, advice and many other services to help ensure that seniors have access to justice. in addition to her role at senior law center, karen serves in many leadership positions promoting access to justice itself, including her role as a member of pennsylvania's supreme court advisory council on elder justice. we thank karen for being here today. we look forward to her testimony. thanks. >> thank you. next, i would like to turn to senator cortez-masto, to introduce another witness, and i want to also recognize the work that the senator has done on this issue, and that the state of nevada has done, because your state has been a real leader. >> thank you. thank you, chairman collins and ranking member casey and i so appreciate you holding this hearing on an issue that as you well know is important to me, nevada and all of this, and i appreciate all of the work that you have done and this committee has done on this report. thank you.
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we are fortunate enough today to hear and have barbara buckley who is not only a friend of mine, but was one of the chief architects of these reforms on guardianship in the state of nevada and she helped create one of the advanced systems in the entire nation for protecting seniors from abuse. barbara served as the speaker of the nevada assembly from 2007, through 2010, becoming the first woman in the state's history to hold this position. we are a state of firsts. she is currently executive director of the legal aid center in nevada which provides free legal assistance and representation to those who cannot afford an attorney. barbara helped create the legal aid center's guardianship advocacy program, which provides that representation to seniors and adults with disabilities under guardianship to ensure that adults' legal rights are protected.
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the right to counsel is a vital part of nevada's new guardianship system and crucial to protecting those who are the most vulnerable. so welcome, barbara. and thank you for being here. and again, thank you for this important hearing. >> thank you very much. i also want to acknowledge the three other senators who are here, and may be returning, as senator fisher, senator jones, and senator donnelly. and a special word to senator donnelly, he has been a terrific member of this committee, and i just wanted to say that we will very much miss your service here. i know how deeply you care about issues affecting our older americans, and i just wanted to personally thank you for your service on the committee. ms. boyko, we're going to start with your testimony.
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>> chair colin, ranking member casey, and members of the senate special committee on aging. thank you for inviting me here to discuss the efforts to overhaul the guardianship process and protect older americans. my name is kate boyko and i'm a senior court research associate at the national center for state courts. the national center is a nonprofit organization with headquarters in williamsburg, virginia. my area of expertise include elder abuse and exploitation and guardianship. guardianship refers to those cases in which the court has appointed an individual to handle the medical and well-being issues of another person while conservatorship refers to cases in which an individual has been appointed by the court to manage the finances of another person. as chair collins stated, in the
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u.s. there are approximately 1.3 active adult guardianship for conservatorship cases. nationally, courts oversee $150 billion worth of assets under conservatorship. it can dramatically improve, fish enzis of guardianship and conservatorship including improved data collection and modernization of processes and professional auditing, the use of differentiated case management strategies to prevent and address exploitation, the development of interactive online training program to provide basic education for non-. professional guardians and conservators and interdisciplinary network of guardian shareholder group. for this hearing i will focus on the first two items, improved data collection and modernization.
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the national centers court's statistics project collect state court data on a variety of case types including adult guardianship and conservatorship. however, as noted in several publications, the quality of data is highly problematic. in 2016, to determine the quality of data had improved and to explore challenges with adult conservatorship exploitation, the national center undertook conservatorship data. five data elements were requested. new cases filed, total active cases, total dollar value of conservatorship cases and cases in which a conservator was removed for cause or criminally charged. 51 states and territories responded, but only 39 states were able to provide some level of data. no state was able to provide data on all five elements.
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the three primary themes why courts could not provide data were the authority in practices are highly localized, a lack of standards for data reporting and outdated technology and case management systems. so why is data a concern? many courts may not be aware of which cases are open and should be monitored and which cases are closed or no longer need their attention. there are states that have taken on reviewing each case, updating records and accompanying data. texas, nevada and new mexico are reviewing case files to determine if each case should remain open, what filings and accountings are missing and need follow-up. texas, indiana and pennsylvania
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have established conservitorship registry systems to help them track and monitor cases. determining the open or closed status of a case, although very basic, is an essential step for court reform and guardianship conservatorship case management and oversight. the texas process could be adopted as a model for court case review. courts lack resources and skills to view these cases. they can transform the conservatorship system in court. with funding from the office of victims of crime, the national center will work with two courts to pilot the concept where conservators would be required to sign up with the financial monitoring company that will identify suspicious transactions based on personal financial profiles created through machine
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learning. the company will send alerts to the court's rapid response team. the team will respond to each instance and resolve the issues through education, removal of exploitive conservators, repayment of assets and referrals through investigative agencies in a very quick timeframe. i thank you for this opportunity and i welcome your question. >> thank you very much. commissioner hamm? >> chairman collins, ranking member casy and members of the committee, i am bethany hamm, acting commissioner of the department of health and human services. thank you for the opportunity to testify today. my testimony provides background information on adult protective services and public guardianship program. i will also outline recent changes to maine's probate code that relate to guardianship of adults and how we anticipate the recently enacted code changes will serve to protect adults under guardianship and conservatorship in maine. maine dhhs will carry out
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mandates of the adult protective services act or the apff. in accordance to the apf act, maine's program's office of aging and disability services is specifically responsible for protecting incapacitated adults from abuse, neglect and exploitation through thorough, investigative, protective and supportive effort. when a.p.s. determined that an an incapacitated adult is subject to abuse, or exploitation we will provide a public guardian. if none are available aps will petition for public guardianship. public guardianship or conservatorship is only considered a last resort. if dhhs is appointed public guardian, the department files a detailed guardianship plan annually and more frequently as necessary. licensed social workers who serve as guardianship representatives are assigned to maintain contact with each adult
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under guardianship and coordinate with service providers, medical professionals and family and friends to ensure the health and safety of each adult under guardianship. guardianship representatives may also seek to terminate or modify a guardianship relationship as necessary. currently in dhhs may end conservatorship and relationships with approximately 1300 adults. approximately 15% are limited guardianship relationship. during the most recent state legislative session, maine enacted the maine probate court or upc to recodify the maine's probate court. while the maine upc maintains the same requirements for public guardianship, a number of
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mandates relative to private guardianship of adults in the upc are scheduled to go into effect july 1, 2019. it establishes for the for the time in the state the public guardian's duty to report annually on the adults and account for money and other property in the guardian's possession or subject to the guardian's control. additionally, the maine upc effectuates the guardian to establish a system for monitoring and reviewing each report at least annually. the court will use the guardian's report to determine if additional actions or modifications including termination are appropriate. the maine upc also highlights the importance of exploring all options to limit or preclude the need for guardianship at the outset including the use of technological assistance that employ decision making, similarly the upc language underscores the viewpoint that autonomy should be preserved as much as possible, and an adult
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that has a conservator must still have a seat at the table when decisions are being made. the department anticipates that the maine statutory requirements will substantially improve data collection on guardianship, similarly requiring annual reporting of all guardians will allow the courts to more effectively provide oversight and bring concerns to the attention of appropriate entities such as aps and law enforcement. the emphasis on reviewing all less restrictive alternatives to guardianship and statute alongside the requirement for annual review will help to ensure that guardianship is not imposed unnecessarily and will be removed if no longer needed. overall the maine department of health and human services is protecting the health and safety of incapacitated adults. we believe that the upc's
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revised focus on what is in the best interest of the incapacitated adult is a significant step forward to guardianship reform in maine. thank you for inviting me to speak and for taking the time to focus on the significant topic. >> thank you very much, commissioner. >> miss black? >> thank you, senator collins, senator casey and members of the committee. it's a real pleasure to be with you on this panel with these esteemed colleague. as an attorney and non-profit leader for older americans for the last 21 years i am proud to testify about the challenges of the guardianship system and some ideas on solutions and best practices for improvement. senior law center sites for justice for older pennsylvanians and we are a non-profit legal services organization and attorneys and advocates celebrating our 40th year of representing older people focusing on those with the greatest economic and social need. we envision a world that values
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older people, that hears their voices and guarantees their rights. this vision, i think, really encaptures the essence of why we are here today. few legal proceedings have more impact on the individual's fundamental rights and liberties and guardianship. putting life decisions of one into the hands of another is daunting. at senior law center we do much to prevent the need for guardianship. guardianship has overwhelming impact on an individual's health, safety, shelter, family, happiness, quality of life, and yes, even longevity and it is ripe for abuse, neglect and exploitation in the wrong hands. it has created situations that enormous family, anguish and pain. it is at the same time, an important tool to provide care for the most vulnerable citizens and it is understood and i will
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have my full written statement and the first is about data collection and it is so great to hear from my colleagues and what they are doing. we know there's guardianship data much less reliable data in pennsylvania and elsewhere around the country. data is essential as we heard to addressing the side and scope of the problem and tracking the case load and the guardians and individual's words are alleged in incapacitated persons and most importantly their health and safety. in this area, pennsylvania is making great strides. i'm proud, as the senator mentioned, being an appointed member of the pennsylvania supreme court elder law task force and its advisory counsel on elder justice in the court which have both spent enormous time and effort in examining guardianship in its challenges any best practices and elder abuse and neglect and justice. the task force was tasked with
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130 recommendations in november 2014 and i cannot wait to take this new report back to the supreme court in pennsylvania. i do have to add, though, that in presenting this testimony i do so on behalf of the senior law center and myself and not on behalf of the court or its counsel. we are so proud of the ground breaking work and of the administrative office of pennsylvania courts who together have created and in 2018 released a new guardianship tracking system gts which will transform guardianship data in pennsylvania and we believe set a gold standard for the country. it will streamline the monitoring functions of the court in a sophisticated database and enable courts to share information about guardians and counsel, identify red flags and where abuse or exploitation are involved and
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both financial and personal care information and much more. providing accurate information to courts who are making these profound determinations about individuals will have an extraordinary impact on the individual lives and freedom. data question is great, but we'll need other responses of those under guardianship and many recommendations are in my written testimony and to point out a few and certainly training are with the judges and the public, aging network and others about the process and what rights we have under guardianship. a bill of rights for both incapacitated and allegedly incapacitated persons and i know my colleague, miss buckley will speak about that, and volunteer pro bono systems who do guardianship monitoring or professional monitors, training and certification of professional guardians and reasonable investigation into their background, and supporting
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advocates and legal services to represent and advocate for individuals who are being abused and exploited or who allege such abuse or exploitation and legal services, and abuse. as our statewide senior legal help lines which are now available in 26 states and provide free accessible, effective and cost efficient legal advice information and representation to seniors in critical civil areas of law. i have a least restrictive alternative and i will just end with the right to counsel and access to justice which is the essence of the work that we do at senior law center and has really been my professional passion. we are especially concerned about the right to counsel and representation of alleged incapacitated persons and guardianship proceedings in ensuring their unbiassed and zealous advocacy.
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in many jurisdictions across the county including pennsylvania counsel is frequently not appointed and i would suggest that the scales of justice are therefore imbalanced. we believe individuals should participate and be present when at all possible and start with the presumption that they can be. i'll end by thanking you for the opportunity to participate in this important discussion and we are delighted to see a report that has been issued today and we look forward to being involved in your next efforts to pursue justice for older americans. thank you. >> thank you very much. miss buckley? >> thank you chair collins, ranking member casey and members of the committee. for the record, my name is barbara buckley and i'm the director of legal aid center southern nevada. i am honored to be here today to discuss the critical issue facing our country. exploitation of the elderly and adults with disabilities in the
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guardianship arena. guardianship abuse hit many in nevada. it destroyed the lives of countless individuals depriving them of their liberty, their right to see their family and their assets. guardians were being appointed without notice often when there was no real need for a guardian. the court bypassed family members to appoint family members or others who proceeded to loot the estate and then isolate the individual from their loved ones. all of the fees incurred by the guardian and the guardian's attorney robs the protected person sometimes of their entire life savings with little or no oversight. the elderly adult or adult with disability at the center of the case was often the only party without an attorney or the ability to object in court and
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they were left stranded without being able to express their wishes and had no one to enforce their right. it became clear that reforms were needed after families and protected persons with their voices magnified by the press and others who believed in them began coming forward about their victimization. in 2015, nevada's supreme court justice enacted a guardianship reform commission which suggested numerous reforms all adopted by the nevada legislature and approved by our governor. my testimony today focuses on the three most significant reforms enacted. the first, right to counsel. the right to counsel for individuals facing or in guardianship is one of the most important recommendations emanating from nevada. since individuals faced significant deprivation of
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rights and liberties it is determined that individuals should have the same right to counsel as set forth in the landmark case as gideon versus wainwright. the goal of counsel is to ensure that the least restrictive alternative to guardianship is the first thing examined. so as to maximize the independence and legal rights of those who are facing guardianship, to provide a voice in court proceedings, for those who want to contest the guardianship either because it's unnecessary or because the guardian is abusing the power and to protect the due process rights of those way late into the system. the commission recommended and the legislature agreed that counsel will follow a client-directed model and that model requires the attorney to zealously advocate for the wishes of their client and not to substitute their own judgment
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in for what they think should happen in the case. nevada also decided that legal aid attorney should provide this representation. we've now become experts in the field of elder law and guardianship and share best practices amongst ourselves in nevada. since the advent of this program there is a completely different landscape in guardianship proceedings. as soon as the petition is filed a legal aid attorney is appointed, we go where they are to see what they want and we get their input from the very beginning. the client makes the decision whether to support or opposed guardianship or who is being proposed to be the guardian. we have had unscrupulous guardians removed and
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unnecessary actions dismissed and our clients' assets recovered. we've ended a structural imbalance that was just spoken about where the most important person in the case previously had no voice. the second important reform, creation of a bill of rights for a protected person. in nevada, like many other places there seems to be almost a callous indifference about the rights of the individual under guardianship where their opinion didn't really matter. to combat this sometimes callous treatment we scoped all of the bill of rights throughout the country, texas. we looked at different areas. rights given to individuals with mental illness and the like and we compiled a nevada centric version. a person has the right to be treated with dignity, respect and be in the least restricted environment and be represented by counsel and not have their visitors restricted and it is a comprehensive end to the previous lack of consideration for those under guardianship. last, i'd like to talk about our
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nevada guardianship compliance office. this is the third plank of the nevada reforms. this office opened in january 2018 and provides auditing and investigative services to the district court. they may locate a protected person who is not where they are supposed to be. they may report on the appropriateness of the guardian and the care and treatment. they have opened 121 cases involving appropriateness of guardians and 50 audit cases just in that short time. it's hard to describe the heartache and suffering that was going on in nevada prior to these reforms. we are proud of the strides we've made. i would be remiss if i didn't thank our then-chief justice, now justice james hargesty, and our court and our victims'
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families for bringing this to the forefront and for their solutions. there is still a lot of work left to do in nevada so i want to thank you for this hearing, for your report, and all of the work that you have done on this issue. i would also like to thank our senator cortes masto for her work as ag regulating private professional guardian, bringing that issue up for the first time and all she does for our state. i would urge this panel to continue to engage with jurists, lawmakers and to continue your quests for reform. our seniors and adults with disabilities deserve no less. thank you. >> thank you very much. commissioner hamm, i'm going to start with you. i was interested to learn of the reforms that the state of maine has made in its probate code to better protect those that need
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guardians and part of the reforms that you mentioned were regular reports, i believe, being filed annually. could you give us some sense of what kind of information is required to be reported to the court and what is involved in the court's review of guardianship reports? >> certainly. thank you, chairman, and i want to start off by saying that maine is extremely lucky to have you as a champion particularly on these issues and not just a champion of maine, but a champion across the country. thank you very much for your work, and i do want to just go back to one statement that you made in your opening remarks about maine being the oldest state in the nation, and which right now is about 20% of our folks in maine are 65 and older.
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so we have an interest in making sure that they are protected. so maine did adopt the uniform probate code which goes into effect july 2019. so the reports generally adopted everything in the reporting requirements and the 13 requirements that were laid out. so those were adopted and will be followed and they'll review the reports annually as i described and just looking here to see a little bit about what the reports will determine and the reports provide sufficient information to establish. the guardian has complied with the guardian's duty and whether the guardianship should continue and also whether the guardian
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fees if any should be approved and that's just a few examples of those. >> thank you. miss buckley, you talked about the reforms which were really major reforms that nevada implemented. were these reforms in response to specific cases that occurred? i recall from the previous hearing a particularly egregious case of one individual who had ripped off so many people who were under his care. >> thank you, senator. yes, the reform commission started after reports became known through the voices of victims and their families and the press, and there were just so many of them. one particular private professional guardian was particularly egregious.
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she was the one featured in that new yorker article that you discussed at your last hearing. she is still in the clark county detention center and has agreed to a plea bargain. she destroyed hundreds of lives and it wasn't just her. it was other professional guardians and other guardians including family members that just suffered from a lack of kind of rights and a structural imbalance. >> and nobody overseeing them, really, once they're appointed, too. >> none whatsoever. i recall one case where our attorney went to visit someone and they'd had a stroke and elder protective services asked us to go visit the home and when we talked with the gentleman and asked him are you happy where you are? he just looked at us and signaled, you know, no. we said, would you like a change in guardian?
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he'd been, you know, pretty hurt by his stroke and he squeezed our attorney's hand so tightly and when she said i'll represent you. i'll tell the court that you need another guardian, he moved his finger to give her a thumbs up and a tear went down his face. he had been held prisoner in this home without the ability to address the court, without the ability to escape. that's what the right to counsel began to end in nevada. that's a heart wrenching story indeed. you describe in your testimony the proposal for a rapid response pilot project that proposes to transform the guardianship, the system and the court and i was intrigued and part of it was the guardian or the conservator would be required to sign up with the financial monitoring company so
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that suspicious transactions could be identified quickly and an alert sent to the court's rapid response team. can you tell us the current status of that pilot project? >> yes. thank you, chair collins. that project is just about to go under way. we hope to start it at the beginning of the year and we received funding for the office of victims of crime and although minimal funding to get it started in two pilot courts, we have a court in michigan and a court in south carolina that are going to pilot it, and we are
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hoping that the proof of concept will determine to be viable and it will be able to be replicated on a national level and with the funding that is included in the guardianship's accountability account that senator casey and i have introduced be useful in expanding pilot projects like that. >> it certainly would. >> i knew you would answer that way, but i just wanted to get it on the record. yes, yes, yes. it certainly would. >> senator casey? >> that was remarkable choreography, and we need it. karen, i'll start with you, and also maybe miss boynkin in this round of questions, but i want to start with this question of data and more importantly reliable data. we found in this process that what we consider -- would mostly consider basic information on guardianship is lacking, we don't know often, for example, how many people are subject to guardianship, who their
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guardians are and has a guardian been early vetted and how many people are possibly being abused or exploited by a guardian? questions to which we often don't know the answer. karen, i wanted to start with you on this and ask you, in light of the limited information sometimes, we know that pennsylvania's created the guardianship tracking system and the database for guardianships that would be up and running in all 67 counties in pennsylvania by the end of december i guess first, could you explain how the system would address this gap in data? >> i would be happy, senator, thank you. and again, thank you for your leadership on behalf of older americans. >> sure. >> we are really thrilled to have you on this committee as our voice in washington. so the guardianship tracking
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system, as i mentioned, came after the work of the supreme court's justice task force and it was a recommendation, that national report that was released in 2014 similar to nevada, our courts really took leadership in this role, and as we were working as a leadership entity through the problems with access to guardianship, elder abuse and neglect, we surveyed courts. we did some recon to find out what was the status of data and guardianships in pennsylvania and what we found was very disheartening. as you know, senator, we have 67 counties in pennsylvania. many of our judicial and orphans court branches are quite small. for example, we have one county in pennsylvania which has one judge. he does it all. he's a present judge and the
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only judge. so the challenges, we recognize that there are challenges and keeping up with the data was one of them and having enough resources to review report, make sure they were filed and lolly up with guardians and track the data. so the supreme court had recommended that we had developed this tracking system and it has been a year and a half in the making. this is our profile gts and if you go on the pennsylvania website there is actually a video of the tracking system and he mentioned a couple of things about how it's created. this was a project of the office of pennsylvania courts and they put a whole team of it experts on this project. five analysts, five developer, four database administrators and a separate migration team. it really was transform tiff. they are currently migrating all
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active guardianship case loads and working with the courts and with guardians to ensure that information is as accurate as possible as it is migrated into the new system. as you mentioned, it's new and won't be fully implemented until the end of this year, but it will really make various information that was never including the frequency of contact, the caseloads, the relationship to incapacitated persons. we would like family members to be guardians of their loved ones if it is at all possible. criminal background checks is an issue. next year, it will become an and -- requirement in pennsylvania.
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bond information, whether the individual is leaving a community and moving into a nursing home, and that is a big problem with guardians as ms. buckley mentioned and others, selling the house, and moving individuals under their care, not where they want to be, but white -- what might be more effective for the guardian. also, significant transfers of funds. that also flashes the financial information. there is a page in our manual, several pages, which are all of these flags that judges and their staff can input into the gtf, concern of loss and neglect flags, so a series of over 34 flags that judges and they are court staff can input into the system to say this guardian, or this case is problematic, or potentially problematic. then, that information will be available to all judges who are
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looking at guardianships in pennsylvania. finally, i would just say i heard the federal funding question, and this transformation of data for our court is going to require a lot more effort to review the information, have eyes and ears on it. so, any type of additional funding for the courts, and the court staff, to do that important work would be much welcome in pennsylvania. >> thank you very much. i know that i am overtime. if i may just ask one more question for ms. boyko. the same general question about reliable data, i guess from more of a national perspective, what improvements to the collection of data are needed to ensure we have a consistent reliable data across the country in guardianship? >> thank you senator casey.
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i reiterate, i don't think the issues in pennsylvania that were identified are unique to pennsylvania. i think they reflect nationwide, as far as the data picture goes. i think the number one thing that is needed is a national identification of what data elements would be beneficial for courts to collect. then, on avenue to assist court in finding ways to collect that data. and as ms. buck identified in pennsylvania, the resources needed to get to that level are essential and -- extensive. and in the assistance to courts, because courts are very localized. it is a very individual court issue as far as the collection of data. so, assisting courts at the very local level in
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establishing a mechanism to gather this data would be essential. >> thank you very much. >> thank you. senator blumenthal. >> thank you very much madam chairwoman. this topic is immensely important. many of us in this room will encounter the situation in connecticut, guardianship, or conservatorship decisions are made by a local probate court judge who is elected, and need not be a lawyer. i don't know how often that occurs elsewhere in the country, but these judges are essentially be armed in the -- any oversight. and, very often they have their
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own private kingdoms. they make a ton of monday. -- money. i gather from the applause that many of you are familiar with the situations, maybe you have been in a sense involved in them . i hear from my constituents all the time, we are carrying on this conversation at a very high level of abstraction. but, the impact on lives, real- world situations is enormous. i say that as a lawyer in connecticut who has never handled a guardianship or conservatorship case, but i think we need to figure out a way to assure greater
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accountability in the system. i think we need more information. i don't need more information to have seen some of the ways that the probate court or the other parts of the system operate. you can all speak for your own state, maybe connecticut is an outlier, maybe the rest of the system is perfect, and connecticut is, the one print -- the one place in the universe that have these issues. but, i wonder if you could comment on the quality of judging, i assume it is mostly judges who appoint these guardianships, i have always assumed it in other states as well, judges are elected, are they appointed, do we know, what kind of oversight is there? i feel like these are all big
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questions, but maybe you can give us some feedback on it. most importantly, what is the quality of this decision-making? >> i'll answer that. i am from nevada, and when we started our reform journey, there were 8000 opened adult guardianship cases. after the cases were scrapped, it was found that there were only 3000, actually where the person had not died. there was no oversight of the financial issues, or the care of the guardian. the cases were basically rubberstamped. lawyers said this person needs guardianship, it was granted without even a hearing.
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so, the protected person did not have a voice. we had a very sad case where a neighbor came to protest that she was looking after the neighbor in our cul-de-sac, but the hearing was canceled, the private pressure -- professional guarding was canceled, she moved her home, liquidated all of her assets, overcharged her, and every time the neighbor looks at her former neighbor's house, and breaks her heart. that is what happens when there is no oversight. >> i might just add a comment as well, karen buck from pennsylvania. i know that we have a lot of family members here who have experienced a lot of anguish and pain, as a result of guardianship, and maybe some bad decisions. we have worked with a lot of judges who are doing excellent work.
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i would not make any blanket statements about any judges, and i probably would not be here complaining about judges, either. we know that our judges are also elected in pennsylvania. so, there is a real challenge there. i would say, however, that having a right to counsel, having an attorney representing the capacity to person, as well as the incapacitated person, are already determined to be a guardianship, you may not need to longer be under guardianship, having access to counsel, to site abuse exhortation and neglect, to challenge what is being -- going on in the courtroom is an essential first step. we have been talking about the access to legal services, which i would agree with ms. buckley as an independent, usually nonprofit organization, profit
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is not the goal of our work in legal services. to me, that would be one of the great recommendations that we have unbiased, nondependent, unbiased attorneys, helping to represent these individuals. >> if i could just address that question, senator blumenthal. i am kate from the national center from state courts, and the conference of chief justices and the conference of state court administrators are very interested in reform in the courts, and the area of guardianship and conservatorship. the document referred to in my written testimony on the guardianship improvement process has been supported and approved by the conference of chief
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justices and the conference of state court administrators. i think that is a step in the right direction to provide an increase in oversight into start reform -- or continue the reform in some areas, but in some and sits start reform in this area. >> senator, thank you for the question. in maine, our probate judges are elected as well. generally, i would say they are thoughtful in their oversight. or, are thoughtful in their decision-making. there is little oversight as my colleague said, they are locally represented, and one thing i would say is there is a general need for more education around the guardianship issues, amongst the probate judges. i would also echo the need for more requirements around the noticing, and rights to
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attorneys, etc. >> i want to thank all of you, i apologize i have gone over my time madam chairwoman, and i don't mean to impugn every probate judge in connecticut or elsewhere, there are some very fine and dedicated individuals doing this hard work, but it is an area which is largely invisible. every other judge in our system has an appeal in court, whether it is called above him or her, and then another appeals court, and then the united states supreme court eventually theoretically. but, the probate court decisions are unto themselves. and i understand that the right to counsel is a protection, but if you said to the ordinary litigant, will you have no right to appeal this decision, but you do get a lawyer, they
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would say that is not really good enough. i don't know what the solution is for us, as we are up here on the dais, and up here symbolically as senators, and we can't really dictate to states how to run their justice systems. i really appreciate all of your hard work, and i appreciate the chairwoman and ranking member focusing on this issue. >> thank you,'s individual brand has been patient. >> i very much appreciate my colleagues work. thank you all for your work. obviously, you are all public servants in helping people who desperately need your help. many advocates argue there are far too many individuals and guardianship arrangements, and that states need to provide better guidance to courts to use when determining when it is appropriate to subject an individual to such arrangements. any written testimony, you
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touch on the importance of exploring all options to limit or prevent the need for a guardianship arrangement when appropriate, including the use of technological assistance, and support in decision-making. can you describe in more detail some of the alternative arrangements in full guardianship, what steps can congress make to support greater adoption of these alternatives. for ms. buck, in your testimony, you discussed the importance of education alternatives records, families, and communities. how can congress improve access to education in this area, so that families undergoing complex guardianship are aware of all of their options before such a life-changing event. >> thank you senator. i think that the upc code, and the enactment in maine is moving in the right direction around less restrictive alternatives, by way of supportive decision making approaches that identifying a
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team or an individual that can help somebody make those important life decisions, rather than move toward full guardianship. single issue orders, examples of that might be medical or financial. and then, limited guardianships , examples of that might be residential placement or medical or financial. i think that we are making progress, but my colleagues certainly represent those on the ground for friend, and have probably had some more thoughtful ideas around that. >> senator, thank you so much for the question. the alternative to guardianship is an enormous issue in this round. states should require considerations of alternatives do guardianship -- to
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guardianship and their guardianship statues. i think it is an important one. you also question about education and training. in pennsylvania, we are doing a lot to really energetically started that training of all judges, so that they understand the full panoply of issues affecting elder people, whether it is elder abuse and neglect, capacity, the aging brain, domestic or family violence, etc. , and of course guardianship. the issues of elder abuse and neglect are not in line only with the guardianship field as we know, they do affect all aspects of the judicial system, whether it is the family court, the housing court, or others. in pennsylvania, we have created bench books that were about to release in 2019 that every judge who handles guardianship will have, so that
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they are clearly familiar with their duties, the roles and responsibilities of guardians, the rights of individuals, and of course the additional alternative needs to guardianship. we would very much like to see less guardianship, and more alternative to guardianship, whether it is supportive decision making, whether it is making sure people have done all of their advance and life planning issues, they have power of attorney while they have capacity, and having judges recognize things, legitimacy of this document, and referring to those first. we are also doing guardianship and training programs. we are training district attorneys and others. i think there is a lot of misunderstanding, not only about 30 and ship, but a full panoply of alternatives. i did want to point out that in
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pennsylvania, many of the judges are part and parcel of crafting the solutions. so, i think they do understand in many instances, that there are serious challenges in our judicial system. >> ms. buckley or ms. waco, do you have any comments you want to add? >> one comment i would add to promote the alternatives to guardianship,, the national center for state courts is currently working with the american bar association with funding from the elder justice initiative to provide some online training for late persons that will speak to alternatives to guardianship, in hopefully promoting people before they come to the courts, that they know there is other alternatives out there. >> thank you madam chairwoman, thank you mr. ranking member. >> thank you very much, senator cortez.
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>> thank you madam chair. and, thank you all for being here. i apologize, i have other committee hearings going on at the same time. if this question was asked, excuse me. i want to jump back to the idea of this proposed rules and duties for attorneys as they represent those and guardianship. and maybe ms. buckley, let me start with you. describe the difference, what we are talking about here is the duties for attorneys, it is not the duties that we typically have as attorneys in our roles that we are trained in law school, and the responsibilities that we carry out, and the oath we take specifically, these are duties unique to guardianship, the special interest model for attorneys that are engaging in this. do you see a distinction? in other words, is there training that is necessary for an attorney that is taking on one of these roles, that would
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be different from what they normally carry out in their day- to-day functions, and other representations? >> thank you senator for the question, the short answer is yes and no. the longer answer is we want an attorney for someone in a guardianship arena to follow the traditional attorney-client model. the person facing guardianship has a right to have their opinion matter, and direct the course of the attorney. it is not where the attorney says what i think, oh i think this person is better than this person, sometimes attorneys are not very good at that. they are trained in law, they are trained in how to be a lawyer, there are trained and what to do when there is a client and lead. -- in need.
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it really could be a model throughout the nation, thank you. >> i know ms. buck this is an area you have advocated as well, is that something similar to what you have seen as well? >> yes absolutely. i think ms. buckley makes an important point that we want attorneys to be advocates for incapacitated or allegedly incapacitated persons, not to serve as a guardian. these are not children, they are adults.
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i started my legal career representing abused and neglected children. part of the education of course and others is we need to treat seniors as adults who have rich histories and experiences, and not to be institutionalizing them, to really check our paternalism and ages him at the door. that is a big part of what we all do who advocate for older people. >> right, both for seniors and people with disabilities that require a guardianship, thank you. >> ms. buck, i am impressed by the word about the senior law center project stopped abuse and financial exploitations, the state program that you have, and their free legal representation that is provided to an abusive situation. what are the barriers that you have found to the successful
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prosecution of financial crimes? >> that is an excellent question senator, thank you. project save, step abuse and financial exportation is one of our most successful projects, one that is really growing and expanding enormously because of the extraordinary need of older victims who are facing so many forms of abuse, domestic family's -- violence, family violence, and the domestic exportation issues you are also familiar with. we have a real challenge just keeping up with the need. i am happy to say, it is a two- part answer, i am happy to say we have had really successful civil and criminal justice partnerships with our district occurred -- attorneys in philadelphia, and district attorneys around our commonwealth. that being said, we need more
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resources and -- more attention by prosecutors to these issues. financial exportation and other forms of financial abuse, sometimes they don't get the attention they need. it is often a resources question. in philadelphia, we have the largest percentage of seniors in the 10, largest percentage of seniors in the country, and one of the poorest. we are still looking for -- working with an attorney to develop an elders district unit and an attorney's office. as you probably know, u.s. attorneys, and the department of justice have now elder justice coordinator's. >> we pushed very hard for that. >> yes, and we thank you in pennsylvania, and particularly in the eastern district near philadelphia, that is going to be transformative for us, and we are working closely with them to try to pursue additional prosecutions. >> thank you. commissioner hamm, obviously it
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is important that we prosecute those who have ripped off our seniors and pretrade their trust. i have a feeling that at times when it is a family member involved, that there is a reluctance on the part of the victim to proceed with the case. my question for you is what more can we do in the area of prevention, of making sure that these abuses do not occur in the first place, whether the guardian is a family member, close friend, or a professional guardian who is unconnected to the family? >> thank you senator, that is an excellent question. one that i asked my team before i came here today to talk with everyone. it is a difficult
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thing to tackle for sure, and i think you can recall a situation in the state of maine, up in the lincoln area, where a family member did just what you described, and was eventually prosecuted. so that was a good thing. we are deploying things like senior save, which i know you are intimately familiar with. we partnered with the main counsel for elder abuse and prevention, and do regular aps outreach in the community. we worked very closely with our legal services for the elderly folks, we contract with them to investigate or represent individuals who don't have representations. those are of -- some of the
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things we are doing and will continue to do moving forward. >>, very much, senator casey? >> thank you very much, karen buckle i will go back to you, but the issue of background checks, i know we talked about a right to counsel. several of the individuals and organizations have provided feedback to the community, recommend that the courts adopt a process for investigating background. i think that is fundamental. while this surely will prevent all instances of abuse, or exploitation, or both, it could weed out some really bad actors. the general assembly in pennsylvania is considering a bill to require these background checks of prospective guardians before being appointed, and the question i have for you is if these techs were implemented with the proper safeguards, do you believe they could play an important role in providing
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additional information to the court as it considers whether to appoint a person as a guardian? >> sat -- thank you senator. the issue of criminal background checks is an important one. i am familiar with the legislation you are referring to by senator haywood and others. one great stripe we have been making as a result of some very egregious guardians in philadelphia, and surrounding counties, who had a very significant convictions in other states, um, that were not revealed by the guardianship process, um, and were not known to the court. as a result of that, philadelphia has changed its rules, and now currently requires criminal background checks to be part of the guardianship petition in all cases. the pennsylvania supreme court has changed its rules, and as of next june, july, criminal
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background checks will be required in the filing of all guardianship petitions in pennsylvania, as well. we think that as much information as possible is the way to go. the real question is how is that information used. the judge should have all possible information at his or her disposal, when they are making those decisions, and to senator cortez masters question, that is one of the areas and ways we can prevent the appointment of bad or explore the guardians. it really should be a case-by- case basis on what was the criminal conviction, is irrelevant, and well it make the guardian less able to do their job, of course there are many that immediately should raise the -- red flags, and
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that information will go into our guardianship tracking system as well. >> the bill and general assembly is bipartisan? >> i believe so, yes. >> thank you very much madam chair. >> thank you senator casey. a vote has just started. senator cortez master, i want to give you a chance from one more question before the close of the hearing. >> thank you, for ms. boyko, thank you for your testimony and the work you are doing. data is key, it is key to everything we do. it helps us identify things we need to improve upon. let me ask you this, is there anything that the federal government can do to assist in distributing encouraging some of these best practices you have identified, or what more can we do to help states address the issue of a lack of data, or standardizing some of the data across the country, so we can compare it? >> thank you for that question.
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one of the key things is encouraging collaboration. and there are a lot of good ideas out there, there are a lot of states in local courts that are doing fabulous things to reform this area, and improvements in data, such as pennsylvania that we have heard of today. i think providing some type of national resource center for the clearinghouse of that information, to get that information to a variety of local courts and local states, accompanied by resources, there is a lack of resources, but sharing information, we don't need to reinvent everything. we can use the best practices that are in place, and just share those with other places, so that courts can implement
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them. >> thank you. that was a good segue into the final recommendation, because the recommendation, one of them and here is the national resource center, said thank you. >> thank you very much. i want to thank all of our witnesses for being here today, and for your enormous contributions to this debate. i have a fairly lengthy closing statement, but in the interest of making the vote, i will just put it into the record. but, i do want to take this opportunity to thank the two staffers who worked the hardest on this report, amber talley on my stuff, and kevin barstow on the ranking member staff. they are the chief authors of the report, many other staff members also played a role, and i want to thank them as well.
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i also want to indicate that committee members have until friday, december 7 to submit questions for the record, so you may be receiving some additional communications from our committee. again, my thank you to the witnesses today, you have really helped enhance our understanding. i hope is that states will take a hard look at the recommendations in our report, and that the legislative reforms that re-proposed will be enacted as well. senator casey? >> i also want to make a statement for the record as well, thank you madam chair, thank you for the -- to the witnesses. >> thank you, this hearing is now adjourned.
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president trump is heading to argentina for the g 20 summit this weekend. during his visit, he will hold one-on-one meetings with several world leaders, including the japanese prime minister, and the german chancellor on friday. saturday, he is scheduled to have dinner with the chinese president. today, president trump also announced he counseled his meeting in argentina with
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russia mac. saturday at noon eastern, on book tv, we visited the university of california riverside citrus friday collection, which houses more than 1000 varieties of citrus, and has been at the forefront of u.s. agricultural research since the early 1900s. >> this is another citrus relative, does not look exactly like citrus, but they are called australian finger lines. they are micro citrus oesterle said. the cool thing is when i cut it in half, with my knife, and you open it up, the juice vesicles come out like little bubbles, and you can see the seeds as well.
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