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I. Introduction
The Office of Public Guardian (OPG) is the Utah State agency responsible for providing public guardianship and conservatorship services to incapacitated adults.
OPG was established and placed within the Utah State Department of Human Services in 1999, after the Utah Legislature passed Senate Bill 39, sponsored by Senator Lyle Hillyard. This
legislation, codified as the Office of Public Guardian (OPG) Act1, was prompted by longstanding concerns about lack of guardianship arrangements for incapacitated adults who
have no family members or friends to serve as their guardians. A 1997 study found that as many as 1400 incapacitated Utahans could benefit from a public guardianship system2.
As a new agency, OPG is a work in progress. In 1999, OPG developed and published a comprehensive plan for implementing public guardianship services in Utah (Implementation Plan for the Office of Public Guardian or OPG Implementation Plan)3.
This article describes OPG's services and summarizes key issues related to developing a public guardianship system in Utah.
Services.
The Office of Public Guardian provides a number of services, including: information, referral, and education about guardianship and the rights of incapacitated persons; assessment for guardianship; petitioning the court for guardianship; alternatives to guardianship; guardianships and conservatorships; and protection and advocacy of the rights and interests of incapacitated persons.
OPG provides services directly and contractually. Through a small staff, which includes three deputy guardians, OPG currently serves as guardian to approximately 40 adults, most of whom
are elders living in long-term care facilities. In addition, the Department of Human Services provides guardianship services to approximately 200 adults with developmental disabilities
through contracts that the Division of Services for People with Disabilities and OPG have with Guardianship Associates of Utah and Advocacy Providers, two private guardianship agencies.
Eligibility. By law, OPG's direct guardianship services are limited to incapacitated persons who have no one else to serve as their guardians.4 Priority is given to persons who are in life threatening situations, or who are experiencing abuse, neglect, self-neglect, exploitation, or who are at significant risk of experiencing such problems.5
Referral. Anyone may make a referral to OPG. Referrals may be made by contacting the office directly.6
Board.
The Board of Public Guardian Services is a citizen-based board that oversees OPG. The Board is comprised of nine members, including: an attorney; a physician; and representatives of: senior citizens, people with disabilities, The Board of Aging and Adult Services, The Board of Services for People with Disabilities, The Board of Mental Health, the hospital industry and the long-term care industry.
Staff.
OPG's staff presently includes a director, three deputy guardians, and a secretary. OPG's director and guardianship staff are certified as registered guardians by the National Guardianship Association (NGA) or are working to obtain NGA certification. OPG guardians include persons knowledgeable and experienced in geriatric, habilitative and mental health care and treatment, and guardianship law.
Fees. OPG may assess fees for services but does not presently do so.
II. Key Guardianship Issues
In developing the OPG Implementation Plan and in subsequent discussions over the past year, the Board of Public Guardian Services and OPG have identified a number of issues that need to be
considered and addressed in developing Utah's public guardianship system.
Need for Public Guardianship Services. The need for public and private guardianship arrangements is not new. Forty-three other states have public guardianship systems.7 Some systems have existed for over twenty-five years.
The need for public guardianship services in Utah is significant and is likely to grow in coming years. A Department of Human Services needs assessment survey completed in 1997 found that
the number of Utahans needing public guardianship is somewhere between 700 and 1400 persons. The survey estimated that this group includes: 800 elderly incapacitated individuals who
reside in long-term care facilities; 225 incapacitated persons with developmental disabilities living in the state developmental center and the community; and 130 incapacitated persons
with psychiatric disabilities.
Discussions with guardianship professionals in other states suggest that the total number of incapacitated adults in need of public guardianship services may be higher than the above
estimates. In addition, information gathered over the past year suggests that there are at least two other groups of adults in need of guardianship: incapacitated adults living in the
community, unserved and unknown by human service agencies; and incapacitated adults in medical hospitals facing significant medical decisions, including emergency and end-of-life care.
Moreover, as is widely known, an increasing percentage of Americans will become 65 years of age and older over the next 25 years, and as individuals age they are more likely to become
incapacitated.8 What is less widely known is that Utah's senior population is growing faster than that in most other states.9 On a related basis, Utah has and is projected to continue to have the fourth highest rate of Alzheimer's disease in the nation.10
Eligibility and Priorities. There is a significant need for public guardianship services in Utah. However, OPG's present capacity to provide services is very limited. In creating
OPG, the Legislature did not provide the Department of Human Services with a budgetary allocation. Instead, the expectation was that OPG would initially be funded from the small amount of
departmental resources then being spent on guardianships and any additional funding that the Department could identify. And, at some later point, the Department could return to the
Legislature with a proposal for more fully funding OPG.
In determining who may be eligible for OPG's services, the Board of Public Guardian Services has agreed that any individual who is incapacitated and does not have a willing and responsible
third party who can serve as his or her guardian is eligible for OPG's services. However, in recognition of OPG's limited staff and resources, the Board has determined that unless and
until OPG grows, the office's services will target: incapacitated persons in life-threatening situations; and incapacitated persons who are experiencing or at risk of experiencing abuse,
neglect, self-neglect or exploitation.
The Board is continuing to consider when and how OPG should serve individuals who can afford to pay for services. The availability of private guardianship services is limited in Utah,
particularly outside of the Wasatch Front. Under the Office of Public Guardian Act, OPG may assess fees, although it does not presently charge fees. (The Legislature and Board must
approve OPG's fees).
The Board has also considered what groups should be served and the appropriate size of staff caseloads. OPG's primary focus is presently on: incapacitated elders with progressively
debilitating conditions such as Alzheimer's disease; incapacitated adults with developmental disabilities, such as moderate or severe mental retardation; incapacitated adults with serious
and persistent mental illnesses, such as schizophrenia and affective disorders; and other incapacitated adults in need of surrogate decision makers for critical medical decisions.
These groups correspond to the five groups of Utahns previously identified as needing public guardianship services and they generally correspond to the groups served by public guardianship
systems in other states.
Also eligible for guardianship under Utah law are adults who are incapacitated as the result of alcoholism or substance abuse. The Board is undecided about when OPG should provide services
to persons who are incapacitated because of a lifestyle that they have voluntarily chosen, particularly given OPG's limited capacity to provide services. On a related basis, there has
been discussion about whether OPG should serve individuals who are likely to resist or undermine efforts to assist them. These discussions continue.
Caseload Standards.
Guardianship experts, the media and other sources have raised serious concerns about guardianship caseloads. Some public guardianship programs have undertaken excessive and unmanageable caseloads and resulting horror stories have been reported. Consequently, a number of states now regulate, by statute or program standards, the size of their caseloads. In anticipation of this issue, the Office of Public Guardian Act states that OPG may only be appointed as guardian if OPG itself files for appointment or if it agrees in advance to appointment.
After reviewing the literature on guardianship and discussing these issues with officials in other states, OPG tentatively decided to limit caseloads to about 40 persons per OPG guardian.
Given this limit and current staffing levels, OPG has worked to increase its overall caseload but significant caseload growth will depend on the availability of additional funding.
Moreover, OPG's experience over the past year suggests that guardianship work is more staff-intensive than was originally anticipated and that the caseloads of individual guardians may
need to be more modest.
Systems Structure. Another important issue in developing Utah's public guardianship system is determining how it should be structured. The Board of Public Guardian Services and OPG
staff have examined other state public guardianship systems and talked with guardianship officials and experts about how best to construct OPG. The Board and staff have found that
structures of other state public guardianship systems vary from state to state but generally fall into one of three categories. Some are part of a larger government social service agency,
others are independent state agencies, and yet others are privatized agencies with statutory authority. The trend in recent years has been towards establishing or re-structuring public
guardianship systems so that they are more independent. This movement is consistent with the views of many guardianship experts and the National Guardianship Association that both
guardianship programs and individual guardians should be free from conflicts of interest, including organizational conflicts, that might compromise their ability to protect and advocate
the welfare, interests and rights of their wards.
OPG is presently housed within the Executive Director's Office of the Utah State Department of Human Services in order to assure that it is independent of other state social service
agencies that serve OPG wards. A decision about how OPG will be structured in the long-term has yet to be made.
Type and Range of Services.
In considering what services OPG should provide, the Board of Public Guardian Services and OPG have examined the type and range of services provided by other state public guardianship systems. Virtually all systems provide full guardianships and conservatorships. (Under a full guardianship, a guardian has authority for making virtually all decisions for a ward. Under a limited guardianship, a guardian only has the authority specifically granted to the guardian by the court). Under both full and limited guardianships, a guardian has two primary functions: surrogate decisionmaking; and guardianship case management.
In addition, other state public guardianship systems provide some or all of the following services: information, referral and education about guardianship; investigation and assessment of
the need for guardianship and conservatorship; petitioning of the court for appointment of guardianship and conservatorship; money management services (including direct deposit of income
and direct payment of bills) and public benefit payeeships; limited guardianships and conservatorships; and oversight of private guardianships.
OPG presently provides all of the above services, except for money management services and oversight of private guardianships. OPG is committed to further developing and utilizing
alternatives to guardianship, including increasing its use of limited guardianships, establishing a money management program, and fostering the use of advance directives for health care.
However, further development and implementation of alternatives will depend on the availability of additional funding and staff.
Guardianship Standards and Decision Making.
Thirteen years ago, the U.S. House of Representatives' Committee on Aging published a comprehensive report on guardianship, which noted that guardianship is necessary, important and can be of great benefit to vulnerable and incapacitated adults. But the House Committee on Aging also noted that guardianship is restrictive and intrusive:
The consequences of guardianship upon the civil rights and liberties of [wards] are many and drastic.... [Persons placed under guardianship] may lose many of their legal and civil rights
as adult citizens and be reduced to the legal status of a child [and be] deprived of the right to control almost every aspect of life, including the right to manage finances, to write
checks, to contract, to sue and be sued, to travel, and to choose what medical treatment to accept and refuse, where to live, and with whom to associate.11
As a result of the House Committee's findings and recommendations, formal standards for guardians were developed and adopted by the National Guardianship Association (NGA). A process for
certifying guardians followed several years later.
The Board of Public Guardian Services has adopted the NGA's guardianship decision-making guidelines. Under these guidelines, a guardian has a responsibility to determine what a ward would
want if the ward were capable of making decisions, and then to try and carry out the ward's wishes. Guardians have a legal duty to make decisions that protect the rights, interests and
well being of their wards. Guardians should not substitute their own opinions about what is best for wards unless a guardian cannot determine what a ward would want, or unless the ward's
choice cannot be honored under the law or poses unacceptable risks for the ward.
In addition, the Board and OPG are committed to developing a guardianship system which reflects the programmatic standards recommended in the House Committee report and set forth by the
NGA. Perhaps the most significant of these standards are those pertaining to the use of alternatives to full guardianship and conservatorship.
Alternatives to Guardianship and the Rights of Incapacitated Persons. Because guardianship is restrictive and intrusive, it is important that it be used only when absolutely
necessary and in the least restrictive manner possible. The House Committee on Aging's report on guardianship and the standards of the National Guardianship Association stress the
importance of the use of alternatives to guardianship, including limited guardianships and conservatorships, as well as advance directives for health care, payeeships and money management
services.12 Under limited guardianships and conservatorships, a guardian or conservator only has the authority specifically granted him or her by the court. Advance directives provide a means for a competent adult to specify in advance of becoming incapacitated how and by whom he or she wants certain decisions made. Payeeships and money management services also provide alternative mechanisms for managing income and bill paying.
Utah law directs that the court is to give preference to limited guardianship and conservatorship whenever possible. In addition, the OPG Act directs OPG to pursue guardianships and
conservatorships in the least intrusive manner possible. OPG is committed to providing guardianship services consistent with the spirit and letter of the law. OPG is utilizing limited
guardianships whenever possible, and has sought time-limited guardianships in a number of instances, although guardianship is indeterminate under Utah law. OPG is working with lawyers and
judges to ensure that due process is afforded all persons facing guardianship and has engaged in an aggressive and ongoing educational campaign to raise knowledge and understanding of
guardianship with professionals, families, and the public.
OPG recognizes that a guardian's responsibilities include protecting and advocating the rights of the incapacitated person he or she serves. Even when a full guardianship is granted, the
incapacitated person retains certain rights, such as the right to make personal choices, the right to challenge a guardianship and the right not to be sterilized. These rights may not be
denied except in very limited circumstances.
III. Conclusion
The Board of Public Guardian Services and OPG have made considerable progress over the course of 20 months in developing a statewide public guardianship system. But many challenges remain.
With the necessary resources and support, and the constructive input of concerned and interested citizens, OPG will become the strong and effective public guardianship systems that Utah
deserves.
IV. Additional Information
For more information about OPG, contact the office directly.13 A number of brochures, handbooks and other materials about OPG and guardianship are available through the office, including: Guardianship in Utah: Answers to Questions About Guardianship; A Guide to Guardianship Services and Resources in Utah; The Guardian as Surrogate Decisionmaker; Implementation Plan for the Office of Public Guardian; and Choosing a Nursing Home.
Footnotes
1. Utah Code Ann., ¤ 62A-14-101 to ¤ 62A-14-112.
2. Storrs, J.; Key Informant Needs Assessment Survey, Utah Department of Human Services, 1997. The results of this survey are discussed in more detail below.
3.
Copies of the OPG Implementation Plan are available from OPG. For more information, contact Office of Public Guardian, 120 West 200 North, Room 329, Salt Lake City, Utah, 84103, (801) 538-8255.
4. Utah Code Ann., ¤ 62A-14-105 (1) (a) (ii).
5. Abuse, neglect, self neglect, and exploitation are defined in Utah Code Ann., ¤ 62A-3-301.
6. OPG's direct telephone number is (801) 538-8255.
7.
For more information on public guardianship efforts, see: Hume, S.B. (1991). Steps to Enhance Guardianship Monitoring, Washington D.C., American Bar Association, and Siemon, D. and Hume, S.B., and Sabatino, C., ÒPublic Guardianship: Where is It and What does It need?Ó Clearinghouse Review, October 1993, pp. 588-599.
8.
Recent data from the Governor's Office indicate that the Utah 65 plus population was 201,993 in 1990; 241,878 in 2000; is projected to be 327,277 in 2010 and will continue to grow exponentially over the ensuing 20 years. Demographic and Economic Analysis Section, UPED Model System. Utah Governor's Office of Planning and Budget, 1999.
9. Ibid.
10. Utah's Alzheimer's population is projected to increase 141%, from 27,815 individuals, as of 2000, to 66,932, by 2025. ÒAlzheimer's tidal wave feared,Ó USA Today (Alzheimer's
Association cited as source), March 22, 2000.
11. See: U.S. Congress, House Select Committee on Aging, Subcommittee on Housing and Consumer Interests, (1987). Model Standards to Ensure Quality Guardianship and Representative
Payee Services, Washington D.C., U.S. Government Printing Office (Committee Pubs. No. 100-705).
12. Standards for Guardians, Model Code of Ethics for Guardians, National Guardianship Association, Inc. For more information about the National Guardianship Association and its
standards, contact the NGA at: 1604 North Country Club Road, Tucson, Arizona, 85716, (520) 881-6561, www.guardianship.org.
13. Office of Public Guardian, 120 West 200 North, Room 329, Salt Lake City, Utah, 84103, (801) 538-8255.
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