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February 7, 2007


The Source of Information and Assistance on Elder Abuse

Clearinghouse on Abuse and Neglect of the Elderly (CANE)
Selected Annotated Bibliography:

Guardianship and other Legal Protections of Vulnerable Adults

Adults who lack capacity to make decisions, and as a result cannot protect themselves or their assets, are at risk for abuse, neglect, self-neglect, and exploitation.
Incapacitated vulnerable adults can be protected through a spectrum of interventions, ranging from advance directives, to assignment of durable power of attorney, to placement under guardianship (including limited guardianship). Advance directives, such as a living will, stipulate an individual's choices regarding medical care and end of life decisions. They are created "in advance" of an incapacitating event (a stroke, for example). A durable power of attorney (DPOA), also created in advance of incapacitation, is a document that allows an individual (known as the principal) to name someone to act on his or her behalf (known as the agent) if circumstances warrant surrogate decision making in the future. Guardianship, the most restrictive legal mechanism for protection of vulnerable adults, assigns responsibility for the incapacitated adult's welfare to a court appointed individual.

The following references have been selected for inclusion in this bibliography in order to illustrate many of the complexities in implementing these legal protections. A number of older publications have been included to provide historical perspective, and several international articles have been incorporated to demonstrate the universal nature of these issues. Entries were also chosen to represent a variety of professional perspectives on the subject. Topics range from the difficulty in assessing decision making capacity, to the need for (and lack of) monitoring surrogate decision makers, to the remedying of abuses committed by individuals charged with the responsibility of protecting vulnerable adults.

Most of these reference materials can be obtained through your local university and community libraries or interlibrary loan services. Some must be ordered directly through the publisher or production company. When available, contact and pricing information is included with the abstract. Increasingly, many resources are available online, and the web addresses are also included.* If you have difficulty obtaining any of these materials, please contact the CANE office for assistance by emailing or telephoning (302) 831-3525.

Note: This is a selected annotated bibliography, which does not include all published references related to this topic. The included references have been selected to provide readers with a current and comprehensive collection of books and articles representing a variety of perspectives on the subject. For additional references on guardianship, including materials published prior to 1990, please visit the CANE online database at .

To search the CANE Bibliography Series, go .

(*Web addresses may change without notice. If an address provided is no longer accurate, we recommend using a generic search engine, such as Google, to find a current link. If you cannot locate the online publication, contact the CANE offices for assistance by emailing or telephoning (302) 831-3525).

The National Center on Elder Abuse (NCEA) serves as a national resource for elder rights advocates, law enforcement and legal professionals, public policy leaders, researchers, and citizens. It is the mission of NCEA to promote understanding, knowledge sharing, and action on elder abuse, neglect, and exploitation.

The NCEA is administered under the auspices of the National Association of State Units on Aging.

NCEA Partners
  • National Association of State Units on Aging (NASUA), Lead Partner
  • American Bar Association (ABA) Commission on Law and Aging
  • Clearinghouse on Abuse and Neglect of the Elderly (CANE) at the University of Delaware
  • National Adult Protective Services Association (NAPSA)
  • National Committee for the Prevention of Elder Abuse (NCPEA)

This publication was made possible through the support provided by the National Center on Elder Abuse. Major funding for the National Center on Elder Abuse comes from the U.S. Administration on Aging, Department of Health and Human Services.                    Grant No. 90-AM-2792.

Opinions or points of view expressed do not necessarily reflect the official position or policies of the U.S. Administration on Aging.


1. P5844-3
Dore, M.
The Stamm Case and Guardians ad Litum
Elder Law (published by the Elder Law Section of the Washington State Bar Association); Vol. 16 (1), 3, 6 and 7; Winter 2004-2005.
Newsletter article, online
This article provides highlights from the rulings of the Guardianship of Stamm v. Crowley case (Washington, 2004) which limit the admissibility of testimony by guardians ad litem in guardianship cases. The ruling also provides "...that a guardian ad litem is not to testify as to his or her assessments of credibility...". Implications for legal practice in guardianship cases are discussed. (Note: This article is accessible online only through the WSBA Elder Law newsletter at:

2. P5955-332
Quinn, M.
Guardianships of Adults: Achieving Justice, Autonomy, and Safety
Springer Publishing Company, NY; 2005.
Using case examples to illustrate various issues, this book presents an overview of guardianship for health and social service practitioners working with adults with diminished capacities. Criteria for establishing guardianship, categories of guardians, alternatives to guardianship, the legal process of guardianship, and the roles of community practitioners and court personnel as they relate to these processes are among the topics addressed. (Note: This book is not available through CANE. Contact Springer Publishing Company, 11 West 42nd Street, New York, NY 10036. Telephone: 877- 687-7476. Web address: . Price: $41.95.)

3. P5886-15
Schimer, M.
Elder Abuse: The Attorney's Perspective
The Clinical Gerontologist; Vol. 28 (1/2), 55-82; 2005.
(Co-published simultaneously in The Clinical Management of Elder Abuse,
Anetzberger, G., ed.; The Haworth Press, Inc.)
Journal article (scholarship)
In this article, the author analyzes (from the attorney's perspective) three elder abuse case studies presented for multidisciplinary consideration within the context of Ohio state law. She begins with a discussion about ethical considerations prevalent in elder law: the need to focus on the client's best interest; the need to preserve client confidentiality, with certain noted exceptions; the need for zealous representation; and the need to maintain normal attorney-client relationships even when the client has a disability, unless the client cannot act in his or her own interest. Key elements of the Ohio Revised Code's elder abuse laws are described, including the distinctions between the concepts of "non-support" versus "neglect." By statute, attorneys are required to report suspected elder abuse, regardless of how they become aware of the situation. Ethical dilemmas arise when the suspected mistreatment comes to light within the context of the attorney-client relationship. Issues of competency and autonomy, at the heart of guardianship law, are also discussed. Features of Ohio law that enhance the guardianship process are highlighted, including the appointment of an investigator in such proceedings. (Note: This article is one in a series appearing in an issue of The Clinical Gerontologist dedicated to the topic of elder abuse.)

4. P5898-244
Teaster, P., Wood, E., Karp, N., Lawrence, S., Schmidt, W. & Mendiondo, M. (for the University of Kentucky and the American Bar Association Commission on Law and Aging)
Wards of the State: A National Study of Public Guardianship
Funded by a grant from the Retirement Research Foundation; April 2005.
Report, online
As stated in the executive summary, this study was designed to "advance public understanding about the operation and effect of public guardianship programs, and to compare the state of public guardianship today with the findings of the 1981 Schmidt study..." (see CANE file #A37-9). Researchers began by conducting a literature review on public guardianship and a review of state statutes and court cases involving guardianship of the "unbefriended." They conducted a national survey with representatives from public guardianship programs from all 51 jurisdictions throughout the nation, and followed up with telephone interviews of program staff from the states of Florida, Illinois, Indiana, Iowa, Kentucky, Missouri, and Wisconsin. Site visits, which included personal interviews and focus groups, were conducted in Florida, Illinois and Kentucky. Among the findings, state statute analysis reveals that states have shifted towards an enactment of "explicit" public guardianship schemes, with great diversity among programs. Four public guardianship models were identified, including programs within the court system, independent agencies within the executive branch, agencies providing direct services to wards (the most common), and county agencies. A number of states have high ward to guardian ratios, and most indicated that they were chronically understaffed. The greatest strengths perceived were those of the staff, while the most significant weakness was a lack of funding. Although it appears that fewer wards are institutionalized now than in 1981, in most states, a majority of wards continue to be institutionalized. Recommendations generated include the establishment of minimum standards for public guardianship programs, the establishment of staff to ward ratios, and increased oversight to insure due process protections. Funding issues are also examined. (Note: This report is accessible online at:


5. P5965-13
Crampton, A.
The Importance of Adult Guardianship for Social Work Practice
Journal of Gerontological Social Work; Vol. 43 (2/3), 117-129; 2004.
Journal article (scholarship)
This article provides an overview of guardianship issues encountered through gerontological social work practice. The author points out that while guardianship can be viewed as a protection of incapacitated elders, third party interests, such as preservation of the estate, continue to be important factors in guardianship petitions. In the pre-adjudication phase of guardianship proceedings, social workers should consider whose interests are being served in the petition. Depending upon state statutes, they may also participate in the functional assessment of the proposed ward. During the adjudication phase, social workers may serve as advocates for the elder, or may act as court visitors. Post-adjudication, they may provide services to the ward, may become guardians in some cases, or may participate in the monitoring of the guardianship. The article concludes with a discussion of how social workers can assist in identifying alternatives to guardianship.

6. P5943-19
Doron, I.
Aging in the Shadow of the Law: The Case of Elder Guardianship in Israel
Journal of Aging & Social Policy; Vol. 16 (4), 59-77; 2004.
Journal article (research)
This article presents the results of a quantitative analysis of a random sample of 523 cases of adult guardianship in Israel (Haifa, Nazareth, and the Krayot areas) from 2000 through 2002. The following issues were considered: the personal and social characteristics of those elders whose guardianship cases were reviewed in Family Court; the reasons for requesting guardianship; the characteristics of the legal process of guardianship appointment in Israel, and the extent to which alternatives are considered; and the typical rulings on guardianship through Family Court. Among the findings, guardianship was typically assigned to individuals who were older than 74, single, poor and living in institutions (such as retirement homes, hospitals, and nursing homes). Although reasons for requesting guardianship were complex and unique, most often the proceedings were triggered by health-related declines. In none of the reviewed cases was the potential ward represented by an attorney or present during the court proceedings. In most cases the guardian appointed was a family member, and very few cases reviewed revealed specific legal limitations. The authors suggest that ageism is a significant factor in this process. A number of recommendations are proposed for the reform of the guardianship process, particularly the need for due to process and comprehensive legal assessment of the proposed ward.

7. P5878-97
Government Accountability Office (GAO)
Guardianships: Collaboration Needed to Protect Incapacitated Elderly People (GAO-04-655)
Washington, D.C.; July 2004.
Government report
In this report, the Government Accountability Office (GAO) analyzes "...(1) what state courts do to ensure that guardians fulfill their responsibilities, (2) what guardianship programs recognized as exemplary do to ensure that guardians fulfill their responsibilities, and (3) how state courts and federal agencies work together to protect incapacitated elderly...". State statutes were analyzed and guardianship courts of Florida, California, and New York (three states with the largest elderly population) were surveyed. In addition, four courts that were identified as exemplary by the National Guardianship Network were studied: Broward County, Florida; Rockingham County, New Hampshire; San Francisco County, California; and Tarrant County, Texas, Probate Court #2. Among the findings, although all states have courts to oversee guardianship, the court implementation varies. While many states require the filing of periodic reports, court review of the reports is not specified. Judicial issues arise when one state does not recognize a guardianship originating in another state. Most states do not track the number of active guardianships or the number of incapacitated elders. Coordination among state courts and the representative payee programs of federal agencies (such as the Social Security Administration, the Department of Veterans Affairs, and the Office of Personnel Management) is inconsistent, and often leaves incapacitated elders vulnerable to financial abuse and exploitation. The exemplary courts focused on the training of guardians (beyond state requirements), and monitoring through computerized case management, court visitor programs, in depth review of reports filed, and oversight by court employees. A primary recommendation is that federal agencies create a study group to enhance information sharing among themselves and the state guardianship systems. Appendices address the scope and methodology of the study, and include the survey and results, and comments from the Social Security Administration (SSA), the Department of Veterans Affairs (VA), the Office of Personnel Management (OPM), and the Department of Health and Human Services (HHS). (Note: The entire report can be accessed online at:

8. P5967-6
Karlawish, J. et al.
Addressing the Ethical, Legal, and Social Issues Raised by Voting by Persons with Dementia
Journal of the American Medical Association/JAMA; Vol. 292 (11), 1345-1350; September 15 2004.
Journal article (scholarship)
This article examines the ethical and legal complexities of voting by individuals with dementia. Informal and formal care providers are faced with the question of whether these individuals should be precluded from voting, or assisted in casting a ballot. The autonomy of the person with dementia and the integrity of the electoral process are at the heart of the discussion. The development of a method to assess voting capacity, the identification of appropriate means to assist the cognitively impaired in voting, and the development of consistent and practical policies for voting in long-term care settings are also considered.

9. P5906-8
Doctors, Elder Abuse, and Enduring Powers of Attorney
Matthews, F.
The New Zealand Medical Journal; Vol. 117 (1202); September 2004.
Journal article (scholarship), online
This article, intended for physicians, presents a discussion of the shortcomings in New Zealand legislation regarding the means of protecting people with diminished decision making capacity. The Protection of Personal and Property Rights Act (PPPR Act, 1988), administered by the Family Court, allows for surrogate decision making by either a court appointed welfare guardian and/or property managers, or through an enduring power of attorney (EPA) appointed by a donor prior to incapacitation. Welfare guardians are instructed to consult with the person for whom they act and to encourage the incapacitated adult to make his or her decisions whenever possible. Attorneys named in the EPA are not specifically instructed to consult with the donor or promote his or her welfare. However, anyone suspecting mistreatment of the donor by the attorney can request a court review of the appointment. A recent study of elder abuse committed through misuse of the EPA identified two broad categories of mistreatment: financial impropriety and failure to provide appropriate care. Recommendations to enhance the protection of incapacitated elders include the need for monitoring of the mental status of the donor at the time of an appointment of an attorney, and the need for the donor to obtain legal advice upon the appointment of an attorney. (Note: This article is available online at: .)

10. P5900-14
National Guardianship Network (NGN) Members: National Academy of Elder Law Attorneys (NAELA), National Guardianship Association (NGA), and the National College of Probate Judges (NNCPJ)
National Wingspan Implementation Session: Action Steps on Adult Guardianship Progress
Online paper
As quoted from the Introduction: "...In 2001, the Second National Guardianship Conference, known as the Wingspan Conference, convened a multidisciplinary cadre of experts to make recommendations on adult guardianship law, policy and practice. The Wingspan Conference resulted in 68 recommendations in the areas of diversion and mediation; due process; agency guardianship and guardianship standards; monitoring and accountability; lawyers as fiduciaries or counsel to fiduciaries; and guardianship overview issues...In 2004, the National Academy of Elder Law Attorneys, National Guardianship Association and National College of Probate Judges took up the challenge by convening a Wingspan Implementation Session at their joint conference...aimed to develop a blueprint for action at the national, state and local levels...". This paper outlines recommendations for meeting goals in the following areas: interdisciplinary committees; interstate jurisdiction, data collections and funding; training, certification and judicial specialization; appropriate and least restrictive guardianships; and guardianship monitoring. (Note: This paper is accessible online at: .)

11. P5970-5
Sammin, K. & Hurme, S.
Guardianship and Voting Rights
Bifocal; Vol. 26 (1), p1, 11-14; Fall 2004.
Journal article, online
This article provides a discussion of the loss of voting rights as a result of guardianship. The article identifies four statutory categories: states that encourage voting; those that encourage disenfranchisement; those that do not constitutionally bar individuals under guardianship from voting; and those states that encourage retaining voting with other rights. Case law is cited to illustrate various legal aspects of the issues. The authors advocate that the persons under guardianship should retain the right to vote unless the court has specifically stipulated that they cannot. (Note: This article, as part of the entire Bifocal publication, can be accessed online at: .)

12. P5969-9
Smith, A. & Sabatino, C.
Voting by Residents of Nursing Homes and Assisted Living Facilities: Sate Law Accommodations
Bifocal; Vol. 26 (1), p1, 2, 4-10; Fall 2004.
Journal article, online
This article presents an overview of states' efforts to accommodate voters living in nursing homes, assisted living facilities, and other institutional care settings. Of the 25 states that responded to the American Bar Association's Commission on Law and Aging's survey, 23 states have absentee voting procedures for residential care facility voters. There is great variation in procedures for assisting these individuals in voting, although some are applicable to all voters or all absentee voters. Some states stipulate that assistance can be provided only by election officials; other states allow the voter to chose anyone for assistance; still other states restrict the assistance to specific categories of individuals. A table is included that identifies the relevant state statutes and describes the voting procedure. (Note: This article, as part of the entire Bifocal publication, can be accessed online at: .)

13. P5880-00
U.S. Senate Special Committee on Aging
FORUM: Protecting Older Americans Under Guardianship: Who Is Watching The Guardian?
Washington, D.C.; July 22, 2004.
Senate hearing, online
This hearing, which accompanied the release of the Government Accountability Office (GAO) report entitled, "Guardianships: Collaboration Needed to Protect Incapacitated Elderly People (GAO-04-655)," features opening remarks by Senator Larry Craig, and testimony by Barbara Bovbjerg (lead author of the GAO report), A. Frank Johns (a certified elder law attorney), Nancy Coleman (Director of the American Bar Association Commission on Law and Aging), Robert Aldridge (attorney), and Debbie Armstrong (Deputy Director of the New Mexico State Agency on Aging). (Note: The transcripts of this hearing are accessible online at . The GAO report can be accessed online at: .)

14. P5451-6
Yeoman, B.
Stolen Lives
AARP The Magazine (online); January-February 2004.
magazine article (scholarship), online
By focusing on the case of Inez America Carr, a 90 year old who was inappropriately placed under conservatorship, this article presents an overview of the weaknesses of the guardianship system throughout the country. Poor oversight, lack of certification of guardians, and inconsistency in evaluation of competency are among the problems. (This article is part of a series appearing in a special issue of AARP The Magazine, January-February 2004. The series can be accessed online at: )


15. P5490-5
Abramson, B.
Ethical Considerations in Potential Elder Abuse Cases
NAELA Quarterly - The Journal of the National Academy of Elder Law Attorneys; Vol. 16 (4), 15-19; Fall 2003.
Journal article (legal scholarship)
In this article, the "4 Cs" of ethical considerations are reviewed and illustrated: client identification, conflicts of interest, communication, and competency. Scenarios that highlight these issues are: Possible violation of fiduciary duty by an agent; perceived abuse between spouses; physical abuse by an adult child; second marriage financial abuse; and threatened criminal activity. (Note: This is an adaptation of a previously published article, available online at .)

16. P5301-42
Barnes, A.
The Liberty and Property of Elders: Guardianship and Will Contests as the Same Claim
The Elder Law Journal; Vol. 11; 2003.
Journal article (legal scholarship)
This article explores the similarities between guardianship proceedings and will contests, and also between the guardianship system reform and inheritance law reforms. The history of guardianship reform is outlined, which stems from newspaper investigations in the 1980's and includes the Wingspread conference (Wisconsin, 1987) and the Wingspan conference (Florida, 2001). In comparing the recommendations generated by these conferences, the author concludes that little has changed in the guardianship system. Similarly, the author points out that little reform has occurred in the laws of wills. Ambiguity regarding competency evaluation and the tendency for courts to follow "conventional" lines of property redistribution during inheritance disputes are among the other topics discussed.

17. P5489-7
Brisk, W. & Flynn, J.
No Bad Deed Should Go Unpunished: Evaluation and Discovery of Cases of Financial Abuse of Elders
NAELA Quarterly - The Journal of the National Academy of Elder Law Attorneys; Vol. 16 (4), 8-14; Fall 2003.
Journal article (legal scholarship)
As quoted from the article, "This article is intended to help attorneys who encounter cases of elder financial abuse, whether they are inclined to litigate or not. Upon learning of possible exploitation, attorneys have a duty to provide sound advice which requires at the very least, an understanding of: 1) how to conduct initial evaluation of such cases; 2) what types of retainers are appropriate; 3) particular discovery strategies; and 4) suitable remedies." The author emphasizes that the more effectively the earlier phases of the process are conducted, the greater the chances of a successful outcome. Topics highlighted include capacity/competence, discovery strategies (such as preservation of testimony), remedies (such as statutory protections for victims of elder abuse and exploitation, temporary orders, consumer protection statutes, and punitive damages when allowed).

18. P5491-7
Bueno, J.
Reforming Durable Power of Attorney Statutes to Combat Financial Exploitation of the Elderly
NAELA Quarterly - The Journal of the National Academy of Elder Law Attorneys; Vol. 16 (4) 20-26; Fall 2003.
Journal article (legal scholarship)
The very strengths of the Durable Power of Attorney (DPOA or DPA), such as inexpensiveness, simplicity, and ease of use, also create the potential for abuse. Agents under DPA are not monitored within the court system as guardians should be. Therefore, infractions easily go unnoticed. In this article, the author reports upon state legislation designed to respond to financial abuse and exploitation under DPA. Legislative initiatives were found in six areas: execution (witnessing requirements); disclosure; accounting requirements; agents' duties (including gift-giving authority); and the need for an affidavit from a physician.

19. P5252-29
Crosby, E. & Nathan, R.
Adult Guardianship in Georgia: Are the Rights of Proposed Wards Being Protected? Can We Tell?
The Quinnipiac Probate Law Journal; Vol. 16; 2003.
Journal article (legal scholarship)
After providing an overview of the nature of guardianship in the U.S. and the problems that were found in virtually every state system, this article focuses on Georgia's system and efforts to achieve reform. Forums throughout the early and mid-90's generated recommendations for the development of a functional definition of "capacity" and "advocacy" to ensure that wards retained "rights to the greatest extent possible." A major criticism of the Georgia guardianship system is that capacity continues to be defined by diagnosis, not functional ability.

20. P5311-51
Dessin, C.
Financial Abuse of the Elderly: Is the Solution a Problem?
McGeorge Law Review; Vol. 34; Winter 2003.
Journal article (legal scholarship)
This article provides a comprehensive discussion and examples of the "often vague" definition of financial abuse in existing state legislation. Statutes are often vague in order to allow for flexibility in addressing financial exploitation, but this also weakens effectiveness in terms of prosecution. Many laws presume that an abusive act benefits the perpetrator and involves lack of consent. The simplistic assumption that one's assets should always be retained for one's own benefit is considered as it negates the autonomy of many elders who, out of a sense of duty or generosity, may wish to give to others. The complexities of identifying exploitation involving incompetent individuals and the difficulty of monitoring guardianship issues are also examined. The benefits and weaknesses of voluntary arrangements, such as powers of attorney and trusts are also considered. The author argues that legally defining financial abuse and exploitation in terms of age is an example of "new ageism." She proposes an alternative that is without "ageist stereotyping."

21. P5185-44
Guardianship Monitoring Committee
Guardianship Monitoring in Florida: Fulfilling the Courts Duty to Protect Wards
Office of the State Courts Administrator; Tallahassee, FL; March 2003.
Agency report, online
In 1999, the Guardianship Monitoring Committee was established for the state of Florida and is comprised of judges, court staff, officials from public guardian associations, social workers and academics. This report presents the findings of the Committee's review of the state's current guardianship system. As quoted in the report introduction, "The mission of guardianship monitoring is to collect, provide and evaluate information about the well-being and property of all persons adjudicated of having a legal incapacity so that the court can fulfill its legal obligation to protect and preserve the interests of the ward, and thereby promote confidence in the judicial process." Input regarding existing monitoring efforts and programs are described, and the four major components of an effective model are described. They include the need for initial and ongoing screening of guardians, a reporting of the well-being of the ward, a reporting of the protection of the ward's assets, and case administration as part of court oversight.
(Note: This report is available online at .)

22. P5342-62
Karp, N. & Wood, E. for the American Bar Association Commission on Law and Aging
Incapacitated and Alone: Health Care Decision-Making for the Unbefriended Elderly
American Bar Association Commission on Law and Aging, with funding by Fan Fox and Leslie R. Samuels Foundation, in collaboration with the Samuel Sadin Institute on Law, Brookdale Center on Aging; Washington, D.C.; July 2003.
This report presents the findings of a study of one of the most vulnerable groups of patients in society, the decisionally-incapacitated unbefriended elderly. This patient is defined as one who does not have the capacity to make decisions regarding his or her treatment, who has not executed an advance directive regarding the treatment at hand, and has no legally authorized surrogate or family or friends to assist in the decision-making process. Such patients are often subjected to legal processes that lead to "over-treatment, under-treatment, or treatment that does not reflect their values or best address their well-being." The purpose of this research was to identify the current state of law addressing this issue and to make recommendations for developing practical procedures to assist these patients and guide professionals charged with providing health care. Research methods included statutory and literature surveys, surveys of target groups, in-depth interviews, site visits and focus groups, and an interdisciplinary symposium and state strategy session. Currently, four legal approaches to addressing the decision-making needs of the unbefriended elder exist: statutory authorization for health care decisions; laws that authorize standing committees of trained volunteers to act as surrogates when needs arise; public guardianship for health and financial decision-making; a court process for seeking consent or authorization of a surrogate. When states do not have such a process, health care providers are often on their own to determine the best course of treatment. The report presents policy recommendations, including the need for procedures in long-term care facilities to investigate and record resident values and preferences, the improvement and enhancement of the health care providers' assessment of decisional capacity, and the development of state and local temporary medical treatment guardianship programs. (Note: Key findings of this report are available online at: .To obtain a copy of the entire report, please contact the American Bar Association Commission on Law and Aging, 740 15th St., N.W., 8th floor, Washington, D.C. 20005-1022, telephone 202/662-8690 or by internet at

23. P5663-13
Marshall, J.
Elder Law Symposium - Practice Perspectives: Power of Attorney - Key Issues for Elder Care Planning
Pennsylvania Bar Association Quarterly; Vol. 74, 160-168; October 2003.
Journal article (legal scholarship)
This article provides an overview of the Power of Attorney (POA) as a tool for elder care planning, particularly as it relates to Pennsylvania statutes. The need to customize the document to suit the principal's specific circumstances is emphasized. The capacity to execute a POA is discussed along with the following critical issues: asset protection (including the authority to transfer and gift); fiduciary duties of the agent (including responsibility for record keeping); health care decision making (including advance directives, limitations of living wills, and the complexities of the Health Insurance Portability and Accountability Act or HIPAA); drafting portable documents; avoiding abuse of a POA; and naming surrogate agents. The author, a certified elder law attorney (CELA), cautions that over reliance upon the default language in the Probate, Estates and Fiduciary Code may limit the effectiveness of the POA.

24. P5425-45
Michigan Office of the Auditor General
Performance Audit of Selected Probate Court Conservatorship Cases October 2003
Michigan Office of the Auditor General; October 2003.
Government report, online
There are over 38,000 conservatorship cases in the state of Michigan. The purpose of this report was to assess the accuracy and validity of conservators' annual accounting in these cases, and to assess the effectiveness of the probate courts' procedures for monitoring the conservatorship process. The conservatorship activities of five counties (Calhoun, Huron, Jackson, Washtenaw and Wayne) were audited for the time period between October 1998 and December 2001. Seventy-three percent of the conservators were family members, 25 percent were lawyers or other professionals, and 2 percent were categorized as "other." The general findings conclude that the accounting was typically not accurate or valid, and that the monitoring process was not effective or efficient. Some examples of the deficiencies include the following: guardian ad litem (GALs) were under-used by the probate courts, but when they were appointed to monitor conservatorship processes GALs usually did not identify or report specific deficiencies in accounting; when conservators were suspended, special fiduciaries were not usually appointed to protect the interests of the ward; when conservators were suspended, financial institutions involved with the cases were not routinely notified; probate court data systems were insufficient to gather necessary data for monitoring; probate courts did not demonstrate consistency in monitoring or enforcing reporting requirements; cases remained open though inactive after the deaths of wards. It is recommended that the State Court Administrative Office (SCAO) provide direction and guidance to the probate courts to enhance the training and education of potential conservators, and the development of mechanisms for more efficient and consistent monitoring of conservatorship processes. (Note: This report #05-605-01 is available online at

25. P5422-28
Roy, K.
Sleeping Watchdogs of Personal Liberty: State Laws Disenfranchising the Elderly
Elder Law Journal; Vol. 11; 2003.
Journal article (legal scholarship)
Generally, voting rates among the elderly are higher than those of other age groups, yet elders under guardianship are at risk for disenfranchisement. This legal note presents a detailed legal discussion of voting legislation throughout the U.S. that serves to disenfranchise the elderly. Eleven states specifically prohibit anyone under guardianship from voting due to presumed incompetence, and 44 states have either statutes or constitutional provisions that permit disenfranchisement. The article describes the history of such decisions and its current impact upon elderly voters. A number of guardianship processes are highlighted, such as that of Florida, which specifies that the judge must appoint an examining committee with experts in the disciplines of aging to determine competency. However, discrepancies in professionals' abilities to assess dementia is a critical concern. Recent trends indicate that greater emphasis is being placed upon functional ability and not merely diagnosis of mental illness and mental disability to determine competency. Carroll v. Cobb (New Jersey, 1976) and Doe v. Roe (Maine, 2001) are among the lawsuits presented.

26. P5640-35
Saltzman, J.
Note/Comment: Proposing an Amendment to Article 81 to Allow Invalidation of Wills as Part of, or Subsequent to, a Proceeding for Appointment of a Guardian
Cardozo Women's Law Journal; Fall 2003.
Journal article (legal scholarship)
This article considers the strengths and inconsistencies of the New York Mental Hygiene Law Article 81, "Proceedings for Appointment of a Guardian for Personal Needs or Property Management." The statute allows the court to customize the amount of control granted to a guardian who is mentally incapacitated to a degree that his or her functional level of decision making is compromised. Under the article, the petitioner must demonstrate that the individual in question is incapacitated and unable to "provide for personal needs and/or property management," and also lacks insight regarding this limitation. While medical testimony is not required to assess functional capacity, the presence of the individual is. Wills, transfers of assets for gifting, creation of trusts, and power of attorney are among the issues discussed. The author suggests that the statue could be amended to allow courts to hear a will contest before the individual is deceased, under certain conditions.

27. P5286-167
U.S. Senate Special Committee on Aging
Guardianship Over the Elderly: Security Provided or Freedoms Denied?
Washington, D.C.; February 11, 2003.
Senate Hearing, online
This is the transcript and written testimony of the U.S. Senate Special Committee on Aging Hearing held in February, 2003. Testimony addressed the need for oversight of the guardianship process and alternatives to the process. Issues concerning health directives and financial concerns were explored through the testimonies offered. Witnesses included Jane Pollack, niece of Mollie Oshansky, the famous economist who became the center of a controversial guardianship case, Diane Armstrong, who has written extensively about financial motives in obtaining guardianship, and Penelope Hommel of the Center for Social Gerontology. (Note: This transcript is accessible online at .)

28. P5393-4
Wilkinson, C. & Wilkinson, P.
Financial Abuse: A Case Study & Litigation Guide for the Elder Law Attorney
NAELA Quarterly (The Journal of the National Academy of Elder Law Attorneys); Vol. 16 (3), 18-21; Summer 2003.
Journal article (legal scholarship)
Using an illustrative case study, this article emphasizes key components of litigating elder financial abuse. In this scenario, a trusted, long-time employee has been named the agent of a husband who is suffering from dementia. Although she does not have power of attorney for his wife, she represents the wife as an agent in a real estate transaction. Later, she diverts funds from the sale to an account on which she is also a signator. Legal issues that are pivotal in addressing such cases of financial exploitation include the following: the need to freeze assets immediately (either through a temporary restraining order or TRO, or through written instruction to financial institutions); the admissibility of certain victim statements when the victim is deceased; conflicts of interest occurring when an agent represents more than one individual; and the need for tracing the victim's funds, particularly by employing a forensic C.P.A.


29. P5162-5
Calvo, J. for the American Bar Association
Summary of Enacted DPA Legislation 2000-2002
Report, online
This report summarizes the recent Durable Power of Attorney (DPA) legislation enacted in the U.S. between 2000 and 2002. The fourteen states enacting legislation during this time period are: California, Connecticut, Florida, Illinois, Indiana, Maine, Missouri, New Hampshire, New York, Oregon, Texas, Utah, Vermont and Washington. (Available online at

30. P5957-16
Johns, A. & Sabatino, C.
Wingspan - The Second National Guardianship Conference: Introduction
Stetson Law Review; Vol. 31 (3); Spring 2002.
Journal article (legal scholarship)
This article provides an overview of the Wingspan Conference of 2001. Following keynote addresses which highlighted the progress (or lack of progress) regarding guardianship reform, participants divided into working groups focused on the topics of guardianship diversion, due process and adversarial litigation, fiduciary issues, monitoring and accountability, and agency guardianship. Among the recommendations generated were the need for interdisciplinary initiatives for guardianship diversion and alternatives; the use of court investigators and visitors to replace guardian ad litem; further study of the professional obligations and limitations of the attorney-fiduciary-ward relationship; and judicial specialization. (Note: This issue of the Stetson Law Review is dedicated to the topic of "Wingspan - The Second National Guardianship Conference.")

31. P5974-12
Reynolds, S.
Guardianship Primavera: A First Look at Factors Associated with Having a Legal Guardian Using a Nationally Representative Sample of Community-Dwelling Adults
Aging & Mental Health; Vol. 6 (2), 109-120; 2002.
Journal article (research)
This article is intended to consider risk factors for guardianship among community-dwelling adults based upon a nationally representative sample. Drawing upon data from 65,013 participants of the National Health Interview Survey's (NHIS) 1995 Supplement on Disability, the prevalence of having a legal guardian was .3 percent. The following factors were associated with having a legal guardian: increasing age, having physical or emotional limitations, small family network, and not living with a spouse.

32. P5964-13
Teaster, P. & Roberto, K.
Living the Life of Another: The Need for Public Guardians of Last Resort
The Journal of Applied Gerontology; Vol. 21 (2), 176-187; June 2002.
Journal article (research)
The Virginia Department of Aging authorized the Virginia Tech Center of Gerontology to conduct a statewide survey on the need for public guardians. Representatives from adult protective services (APS), county sheriff's offices, community services boards (including public mental health organizations, etc.), state training centers, and state hospitals participated. Respondents estimated the need for a total of 2,881 surrogate decision makers and 1,425 guardians throughout the state in 1996. The survey established the need for a public guardianship program, which became law in 1998.


33. L4513-13
Barker, J.C. & King, D.
Taking Care of My Parent's Friends: Non-Kin Guardians and Their Female Wards
Journal of Elder Abuse & Neglect; Vol. 13(1), 45-69; 2001.
Journal article (research)
This article explores the nature of a growing subset of legal guardians, the non-kin guardian. Eight non-kin guardians of twenty-six identified through the probate court records of a northern California county (1996-97) agreed to be interviewed regarding the reasons for this formalized caregiving relationship and the accompanying responsibilities. Among many reasons offered, the guardians, usually long-time friends, felt the need to step in and assist the ward. In general, without the protection of these individuals, the wards would be (and in some instances had been) vulnerable to abuse, exploitation and self-neglect. A description of the Durable Power of Attorney and Conservatorship/Guardianship process is included.

34. N4675-148
Butterwick, S., Hommel, P. & Keilitz, I., for The Center for Social Gerontology
Evaluating Mediation as a Means of Resolving Adult Guardianship Cases
Prepared by The Center for Social Gerontology (TCSG) for the State Justice Institute; Ann Arbor, MI; October 2001.
Agency report
This report by The Center for Social Gerontology (TCSG), under a grant from the State Justice Institute, describes the history of the guardianship system and the emergence of guardianship mediation as an alternative that upholds the rights of older individuals. The initial TCSG pilot mediation program was established in Washtenaw County, Michigan in 1991 with support from a National Institute for Dispute Resolution grant. The report describes and evaluates four mediation programs from the following regions: Summit County, Ohio, initiated in 1998; Hillsborough County, Florida, initiated in 1996; Oklahoma's Early Settlement Centers, initiated in 1997, still in existence but with few participants; Dane County, Wisconsin, also initiated in 1997, but no longer in existence. Broad conclusions of this study include a general sense that the process, when used, is successful and that participants are satisfied, but that the structural organization is unstable, that pre-petition cases are rare and that a barrier to accessing the process is a general lack of awareness by judicial officers and other referral sources within the community. The process allows for flexibility in determination, and detailed recommendations to enhance guardianship mediation are provided. (Note: This report can be accessed by following the Mediation & Aging link at The Center for Social Gerontology website at .)

35. N4588-3
Eccles, J.
Mental Capacity and Medical Decisions
Age and Ageing; Vol. 30 (1), 5-7; 2001.
Journal article (scholarship)
In this commentary, recent changes in British law regarding mental capacity and medical decision-making are discussed. Physicians will be asked to certify that a patient is competent to appoint a Continuing Power of Attorney. The article also addresses the use of advance directives and efforts to enhance the residual capacity of patients themselves versus "benign medical paternalism."

36. P5956-155
Fred, M.
Illinois Guardianship Reform Project - Final Report
Equip for Equality; Chicago, IL; February 2001.
Report (online)
In order to identify problems related to adult guardianship throughout Illinois, Equip for Equality established the Guardianship Reform Project. Recommendations were generated as a result of the project, and include: ensuring appropriate determination of the need for guardianship; ensuring guardianship accountability through enhanced court resources; providing guardians with ongoing support, training and education; and enhancing public awareness and education through the Office of State Guardian. These and additional recommendations are detailed in the report. (Note: This report is available online at .)

37. P5905-10
Hughes, M.
Remedying Financial Abuse by Agents Under a Power of Attorney for Finances
Elder's Advisor, The Journal of Elder Law and Post-Retirement Planning;
p39-p48 Spring, 2001.
Journal article (legal scholarship)
This article provides guidance for lawyers attempting to remedy financial abuse by agents under powers of attorney (POA). The nature of the agent/principal relationship and the underlying concept of the strict construction of the document are outlined. Some state statutes allow for a review of the agent's performance, allow the probate court to direct the agent's actions in accordance with the POA, and may require the agent to report to the court periodically, or may rescind the agent's power to act. An agent who breaches his or her fiduciary duty may be liable in tort, and is therefore susceptible to traditional tort damages. Additional remedies may include guardianship action on behalf of a principal who is determined incompetent, eviction of an abusive agent, and theft loss as a federal tax deduction. Gifting, conversion, fraud or misrepresentation, and duress and undue influence are among the topics explored.

38. L4428-2
Jenkins, G.
A Question of Capacity?
Action Points; Issue 9, 2-3; September/October 2001.
Newsletter article
This article provides a brief overview of the guardianship program in place in New South Wales, Australia. In particular, it is noted that the system takes into account over 17 different aspects of health and welfare decision-making in addition to fiduciary decision-making. The system also recognizes that capacity may fluctuate over time and therefore employs timely reviews of guardianship orders as part of the process. The author suggests this guardianship program may be adaptable throughout the U.K.

39. P5973-8
Kane, M.
Legal Guardianship and other Alternatives in the Care of Elders with Alzheimer's Disease
American Journal of Alzheimer's Disease and Other Dementias; Vol. 16 (2), 89-96; March/April 2001.
Journal article (scholarship)
This article addresses the need for planned interventions for incapacity in the care of patients with Alzheimer's disease. Practitioners are encouraged to assist patients in the early stages of dementia, while still capable, to make decisions regarding future care plans. Instructional directives, proxy directives, and guardianships are considered. Supplements to care (including care management, adult protective services or APS, and representative payee and money management services) as well as risk and liability concerns are also highlighted.

40. A451-9
Longan, P.
Middle-Class Lawyering in the Age of Alzheimer's: the Lawyer's Duties in Representing a Fiduciary
Fordham Law Review; Vol. 70; December 2001.
Journal article (legal scholarship)
This article explores the legal intricacies of addressing potential financial abuse by guardians of elderly, incapacitated wards. The Model Rules of Professional Conduct and the Restatement of the Law Governing Lawyers are considered as they relate to the ethical conflicts of maintaining client confidentiality while preventing irresponsible, fraudulent or criminal actions. Both the vulnerability of the ward and the susceptibility of the guardian to commit such acts are discussed. A spectrum of professional options are outlined and include counseling without the right to disclose as the least intrusive, and a duty to discover as the most extreme. Also presented are the more moderate, but perhaps more effective interventions, of optional and mandatory disclosure.

41. N4722-6
Lowenkopf, E.
Legal Issues of Geriatric Patients: Competency and Decision-Making
Geriatric Times; Vol. II (6); November/December 2001.
Journal article, online
This is a comprehensive overview of competency and decision-making, particularly as it relates to older patients dealing with medical and end of life issues. The author describes the development of legal codes and ethical standards that protect the rights of self-determination. Acknowledging that there are varying definitions of competency, the four generally recognized standards of competency are discussed: (1) the ability to appreciate the situation and its consequence; (2) the capacity to understand relevant information; (3) the ability to manipulate information rationally; (4) the ability to communicate choices clearly. A number of key concepts are emphasized, including the need for accurate diagnosis, the recognition that there are many degrees of competency, and that the determination of competency is a legal determination. The role that the physician
can play in dealing with the families of patients with limited capacity, especially in cases where there is disagreement regarding decisions, is considered. Discussion also includes the use of health care proxies and advance directives and consultation with hospital ethicists when necessary to ensure that patients' wishes are honored if at all possible. (Note: This article is available online only at .)

42. N4592-3
Luttrell, S.
Making Decisions: Implications for Practice of the Government's Proposals for Making Decisions on Behalf of Mentally Incapacitated Adults in England and Wales
Age and Ageing; Vol. 30 (S. 1) 7-9; 2001.
Journal article (scholarship)
This paper outlines the implications that Britain's new mental capacity laws have for geriatricians. The physician will need to know more about the patient's past and present wishes, know whom (family/friends) to consult, be satisfied that previous wishes were not the result of undue influence, and weigh these against the patient's prognosis. The new Continuing Power of Attorney, an extension of the old Enduring Power of Attorney, requires that a physician certify the patient's competence at the time of appointment.


43. N4649-23
Dessin, C.
Financial Abuse of the Elderly
Idaho Law Review; Vol. 36; 2000.
Journal article (legal scholarship)
This article seeks to outline types of financial abuse and examine possible remedies and preventions. Theft, fraud and scams, intentional misuse of an elder's assets by a fiduciary or caregiver, and negligence are four broad categories identified. A case example is provided to illustrate the difficulties in determining if financial abuse has occurred, and if so, how it should be categorized. The subtleties of financial abuse, compounded by the rights to privacy and autonomy, create difficulties in detection of abuse by guardian, caregiver, or through power of attorney. Remedies include civil and criminal penalties, protective orders, but will also require further definition and training, as well as funding and education for the state offices charged with the responsibility of addressing financial abuse of the elderly.

44. P5901-17
Gordon, R.
The Emergence of Assisted (Supported) Decision-Making in the Canadian Law of Adult Guardianship and Substitute Decision-Making
International Journal of Law and Psychiatry; Vol. 23 (1), 61-77; 2000.
Journal article (scholarship)
This article highlights the emergence of assisted decision-making (also known as supported decision-making) in Canadian law as an alternative to guardianship. The use of assisted decision-making allows the individual to retain autonomy by making decisions independently whenever he or she fully comprehends consequences, yet allows them to rely upon assistance in making decisions when necessary. The associate decision-maker cannot make a legally binding decision on behalf of the affected adult, and there is a limited release from liability if the affected adult acts independently. In specific regions, such decisions are voidable. Variations among the laws throughout individual provinces of Canada are outlined.

45. L4501-7
Henningsen, E.
Preventing Financial Abuse by Agents Under Powers of Attorney
Wisconsin Lawyer; Vol. 73 (9); September 2000.
Online, (legal scholarship)
This article recommends that attorneys reduce the risk of financial abuse by Powers of Attorneys by: drafting documents that clearly explain the limits to the Agent's authority; educating the Agent about financial responsibilities and limitations; including "oversight" provisions into the document to increase the chances of discovering financial abuse; and including documentation and testimonial evidence to prove that the Agent is aware of limits to his/her authority. (Note: This article is available online only at .)

46. L4500-16
Hughes, M.
Remedying Abuse by Finance Agents
Wisconsin Lawyer; Vol. 73 (9); September 2000.
Online (legal scholarship)
This article describes a number of legal remedies that may be used in pursuing an agent under a Power of Attorney who has financially abused his/her Principal. Remedies presented include: a review of the Agent's performance; steps to revoke the Power of Attorney document; a Constructive Trust; an action for accounting; eviction; surcharge against the Agent; and theft loss as a federal income tax deduction. (Note: This article is available online only at .)

47. L4417-9
Quinn, M.
Undoing Undue Influence
Journal of Elder Abuse & Neglect; Vol. 12 (2), 9-17; 2000.
Journal article (scholarship)
The article provides an overview of undue influence and its dynamics. Victims and perpetrators of undue influence are profiled, and several scenarios are used to illustrate prevention and intervention strategies, including the emergency or permanent guardianship.

48. P5975-26
Sabatino, C. & Basinger, S.
Competency: Reforming our Legal Fictions
Journal of Mental Health & Aging; Vol. 6 (2), 119-144; Summer 2000.
Journal article (scholarship)
This overview describes the core themes in the evolution of guardianship proceedings. The author suggests three areas for enhancing efforts to operationalize the criteria for the determination of capacity and the need for guardianship: a cognitive test; a consequential behavior test focusing on essential needs; and a test for the necessity of court involvement.

49. N4648-13
Thilges, A.
Comment: Abuse of a Power of Attorney - Who is More Likely To Be Punished, the Elder or the Abuser?
The Journal of the American Academy of Matrimonial Lawyers
Vol.16 ; 2000.
Journal article (legal scholarship)
This article discusses how state statutes are addressing financial exploitation of elders through misuse of power of attorney rights. Misuse of power of attorney is classified alternately as theft, elder abuse, embezzlement and exploitation (specifically) in various states, and implied in other state legislation. The article details laws from Arizona, Utah, Montana, Nevada, California, Oklahoma, Louisiana, Florida, Illinois, North Dakota, Oregon, Vermont, Georgia, Minnesota, South Dakota, Indiana and Delaware.


50. J4127-48
Guardianship Work Group
Adult Guardianships in Oregon: A Survey of Court Practices
January 1999
Agency report
As quoted from the Introduction: "...The purpose of this survey was to develop a snapshot of how guardianship cases around Oregon proceed through the courts and to develop some general information regarding guardianship petitions, visitor appointments and reports, filing of objectives to the petition, number of hearings held, type of guardianships ordered, and use of professional guardians..." Two-hundred twenty-five files from 12 representative counties were analyzed. The work group recommended greater advocacy for the respondents, a revision of the role of the court visitor, enhanced training and professional development, and the development of mechanisms for ongoing monitoring. (Note: For a copy of this report please contact: Holly Robinson at (503) 945-8999 or email at

51. P5874-3
Teaster, P.
Response to "Bill's Story" - Of Vindicators, Victims, and Victimizers: The Inertia of Beneficence versus Autonomy
Journal of Ethics, Law, and Aging; Vol. 5 (1), 53-55; 1999.
Journal article (commentary)
In this response to "Bill's Story" (see CANE file #P5873-2) the author considers the roles of all of the parties involved in the case of a man who had been unreasonably confined by his guardian (his current wife). She points out that there is little information about the previous involvement of the family members who are restricted in their ability to have contact with the victim, or about the motivation of the guardian. She concludes that the state's guardianship system may be the ultimate victimizer that " its efforts to vindicate the rights of the individual, the guardian, the family, and the state, in fact upholds the rights of none..."

52. P5873-2
Twitty, J.
Some Older People Do Not Have the Same Rights as Convicted Criminals: Bill's Story
Journal of Ethics, Law, and Aging; Vol. 5 (1), 51-52; 1999.
Journal article (commentary)
This brief commentary presents the case study of a 70 year old man with a diagnosis of multi-infarct dementia, who had been the victim of unreasonable confinement by his guardian (his current wife). In addition to the confinement, the guardian also severely restricted visits from his family members. The probate court refused to amend the condition of his guardianship. The author reports that adult protective services viewed the case "as essentially a family feud, since there was no visible battery involved..." The author highlights key features of the case that suggest unreasonable confinement, including geographic isolation, physical barriers to the home, and the hiring of legal counsel to prohibit contact between the victim and his or her family.


53. P5958-156
Zimny, G. & Grossberg, G., ed.
Guardianship of the Elderly: Psychiatric and Judicial Aspects
Springer Publishing Company, NY; 1998.
This book provides an overview of the psychiatric and judicial aspects of the guardianship process as it relates to elders. Topics covered include the legal basis for guardianship; competency evaluation (including medical, psychiatric, and functional assessments); psychiatric disorders affecting competency (such as mood, cognitive, and psychotic disorders); the judicial process (including petitions, hearings, court investigations, competency assessments, and modifications and termination of guardianship); the courts, judicial decisions (including a discussion of limited guardianship and the selection of a guardian); guardianship monitoring; and research. One chapter addresses the abuse of dependent adults. (Note: This book is not available through CANE. Contact Springer Publishing Company, 11 West 42nd Street, New York, NY 10036. Telephone: 877- 687-7476. Web address: . Price: $35.95.)

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