Testimony to the New York State Legislature Joint Hearings of the Senate Finance and Assembly Ways & Means Committees
2025-2026 Executive Budget
Topic: Mental Hygiene
February 5, 2025
Written Submission by:
Lindsay Heckler, Managing Attorney
Brad Loliger, Supervising Attorney
Thank you, Chair Krueger and Chair Pretlow, for the opportunity to submit this testimony to the Joint Legislative Budget Hearing on Mental Hygiene. We present this written testimony on behalf of Karen Nicolson, CEO of the Center for Elder Law & Justice (“CELJ”). CELJ has been serving the Western New York region for over 40 years, providing free civil legal services to older adults, persons with disabilities, and low-income families. CELJ’s primary goal is to use the legal system to assure that individuals may live independently and with dignity. CELJ also advocates for policy and systems change, particularly in the areas of housing, elder abuse prevention, nursing home reform, and consumer protection. Currently CELJ provides full legal representation in ten counties of Western New York.1 CELJ’s Free Senior Legal Advice Helpline is open to all of New York State. CELJ operates a main office in downtown Buffalo, with three additional offices in Cattaraugus, Chautauqua, and Niagara counties
For reasons detailed below, we urge the Legislature to support a Statewide Initiative of Nonprofit Guardians with a $15 million annual investment and reject efforts in the development and creation of a public guardian. New York has strong legal protections that entitle individuals access to adult guardianship services when a court finds the appointment of a guardian is necessary. However, this mandate is underfunded. Without a direct and sustainable funding stream to ensure the availability of high-quality guardianship services, persons who have been determined by a court to need a guardian are at risk. Investing in a Statewide Initiative of Nonprofit Guardians will ensure all New Yorkers who need a surrogate decision-maker have access to qualified, person-centered care, regardless of their financial or social circumstance.
• Background: New York State is Failing its Most Vulnerable Population
• Solution: Statewide Initiative of Nonprofit Guardians
• Example: CELJ as Guardian
• A Public Guardian Will Not Solve the Crisis
• Support Civil Legal Services
1 Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Livingston, Niagara, Orleans, Steuben, and Wyoming Counties
Background: New York State is Failing its Most Vulnerable Population
Article 81 of New York’s Mental Hygiene Law (“Article 81”) provides that the court, having ruled out all lesser restrictive alternatives, shall appoint a guardian to protect and promote the interests of persons with limitations that affect their ability to make decisions for themselves. Article 81 prefers that the appointed guardian is a family member or other community support, such as a friend or neighbor. However, in many cases there are no such available or appropriate family members or community support to act as guardian.
As such, courts must look to nonprofit organizations, county social services districts and private attorneys to provide this invaluable service. There is no public funding to compensate guardians. Instead, the system relies on family caregivers and the personal wealth of those in need of a guardian to pay for their own services, neither of which reflects the experience of today’s older adults who are increasingly aging alone and with limited financial resources.
New York’s need for guardians is growing rapidly and the importance of an effective guardian to ensure the individual can live with dignity and in safety cannot be understated Guardianship services are multidisciplinary, often encompassing civil legal services, financial management and healthcare coordination, and other tasks to promote the health, well-being, and stability of the individual. An appointed guardian of person and property is responsible for the management of all the financial affairs of the person over whom they are appointed, including, paying bills, marshalling assets, applying for all government benefits, preparing tax returns, and reporting to agencies such as the Veteran’s Administration, the Social Security Administration, the NYS Court system, and many others. Guardians are also responsible for health care coordination and decisionmaking, securing and maintaining appropriate and safe housing, and ensuring access to food, transportation and other necessities for the person under guardianship, many of whom are victims of financial or other abuse, or otherwise vulnerable due to age and cognitive condition.
An effective guardian, and in some cases a guardianship team, works to prevent institutionalization and support these populations rights in their own communities. Not only do these efforts support the local economy by redirecting income and resources back into the community, but guardianship also saves public dollars by decreasing unnecessary Medicaid spending on avoidable hospitalizations or higher levels of care provided in nursing home or similar skilled settings.
For example, Project Guardianship evaluated the financial and societal impact of its court appointed guardianship services. They found over a 9.5-year period, combining Medicaid and homelessness savings, Project Guardianship contributed between $155M and $166M in public cost reductions.2
In some areas the State, nonprofits, including CELJ, have stepped in to fill the gap, raising funds from private and public sources to serve as guardians for those with no other option. CELJ and other nonprofits have demonstrated our keen ability to deliver the highest quality guardianship services for those in our care. Unfortunately, the absence of a permanent, adequate funding source to fulfill the mandate of Article 81 has prevented CELJ (and other nonprofits) from meeting the demand for services at scale. For example, CELJ only agrees to serve as guardian when we have
2 Project Guardianship will be releasing the full report on February 13, 2025.
the capacity to properly serve and support the client’s needs. The perennial threat of funding cuts puts nonprofit services and, critically, those in receipt of guardianship services at risk.
The lack of investment in our guardianship system has also caused challenges for the courts, which are responsible for appointing and monitoring guardians. According to judges across the state, a shortage of guardians to appoint in cases where the individual in need of a guardian has no familial support or assets to be leveraged has led to a crisis in the courtroom. Appointments are stalled, which means New Yorkers in need of time-sensitive decision-making to ensure their health and safety are left in limbo. In some instances, unqualified and even exploitative guardians have been appointed.3
Recently, a series of articles in Pro Publica has highlighted what happens when courts are unable to find good nonprofit guardians to serve in these cases. Once a finding of incapacity is made, judges are often desperate to find someone, anyone, to serve in the role of guardian. Unscrupulous individuals have used the crisis to set up fake nonprofits who accept guardianship appointments and leave the person under an incapacity in horrific conditions. For example, one woman endured bedbugs, rats and no heat for years while her guardian was paid $450 from her account.4 In addition, some individuals offer themselves as guardian as a means to refer those same individuals to their own for-profit companies, such as homecare. For example, a 63-year-old man with assets worth over $800,0000 had a guardian who transferred between $80,000 to $100,000 annually from his account to a company owned by the guardian.5
New York is in the midst of a Guardianship crisis: there is a shortage of guardians, there are illequipped guardians, and there is unequal access to decision-making surrogates for New Yorkers in need. In 2022, Guardianship Access New York (GANY) 6 was established as a coalition of interested stakeholders to reform and improve New York's adult guardianship system, ensuring equitable access to services for every resident. CELJ is a member of GANY and joins in a collective belief that every individual who needs a guardian should receive a high-quality guardian for as long as necessary, regardless of their ability to pay.
Solution: Statewide Initiative of Nonprofit Guardians
Creating a Statewide Initiative of Nonprofit Guardians (“SING”) with a $15 million annual investment is the solution. SING establishes a network of high-quality nonprofit guardians to not only meet the demand for services in their respective regions, but to build the capacity of community-based organizations to deliver guardianship services in areas where they do not currently exist. Unlike other responses to the guardianship crisis, ours is rooted in decades of practical experience and a deep understanding of what it takes to be guardian of another person.
3 See ProPublica’s series on Guardianship https://www.propublica.org/series/the-unbefriended and specific articles, https://www.propublica.org/article/new-york-guardian-yvonne-murphy-beacon-eldercare-judges; and https://www.propublica.org/article/new-york-guardianship-services-care-sick-elderly-confused-alone
4 https://www.propublica.org/article/how-one-woman-endured-decade-neglect-new-york-guardianship
5 https://www.propublica.org/article/new-york-guardian-yvonne-murphy-beacon-eldercarejudges?fbclid=IwY2xjawIQKJdleHRuA2FlbQIxMQABHTailGFX7YIZIzSJAPW8amkLYCZNVkKifnQGeQPX0HJC_aRSFaDSUBTtA_aem_BzmHFswNoq_4xuR3t2WpVQ
6 GANY Coalition members: Center for Elder Law & Justice, EAC Network, Guardianship Corp., Hon. Arthur M. Diamond, J.S.C, Retired, Lifespan of Greater Rochester, Project Guardianship
As detailed in the enclosed SING proposal, nonprofits are key to addressing the guardianship crisis:
• Nonprofits have specialized expertise with multidisciplinary teams to address the myriad issues affecting individuals under guardianship. Their teams of attorneys, social workers, finance managers, benefits specialists, etc., accomplish significant positive outcomes such as effectuating difficult discharges from hospitals and nursing homes, obtaining public benefits including 24-hour home health services, securing PRUCOL status for undocumented immigrants, procuring supportive and affordable housing placements, fighting fraud and reestablishing deed ownership, and reuniting individuals with loved ones.
• Nonprofits are mission driven. Nonprofit programs aim to provide services in the least restrictive, most person-centered way possible. They keep people at home and out of institutions for as long as possible, engage in shared decision-making with clients and family members, serve as co-guardian, accept low- to no-fee cases, learn the values and wishes of their clients, and participate in end-of-life decision-making.
• Nonprofits work to prevent and end guardianships by engaging in efforts to ensure guardianship is utilized only as a last resort and to prevent guardianship when possible. They have programs to offer individuals and families less restrictive alternatives. They are incentivized to stabilize clients to the point where they can seek to terminate the guardianship, freeing up capacity to serve as guardian for others who need it.
• Nonprofits provide data and oversight. Nonprofits have been collecting data on their guardianship clients for decades. Together as a network, they would offer collective data on agency guardianships across the state. They will leverage data collection and shared technology to communicate and collaborate with partners statewide, always striving to improve outcomes for guardianship clients.
• Nonprofits are nimble. Nonprofits are generally more agile in responding to the needs of community and have more flexibility in terms of approach. They can also be more innovative in their service delivery and explore alternative approaches, such as the use of technology, community-based support networks, etc.
• Nonprofits are diverse and more racially equitable. Nonprofits have localized knowledge and strong community ties, including with communities of color, LGBTQ communities, people living with mental illness and disabilities, people living with housing instability, and immigrant communities.
• Nonprofits can leverage pro bono and volunteer support to increase the scope and impact of services available.
• Nonprofits are more cost-effective, transparent, and accountable. Nonprofits often have lower administrative costs compared to government agencies. They are required to post public disclosures, including their audited financials and annual IRS 990 filings and must also comply with funder grant and outcomes reporting.
Example: CELJ as Guardian
A nonprofit serving as guardian can make major difference for the life of a person who has been determined by the court to need a guardian. For example: “Bernard” was referred to CELJ from his local Adult Protective Services Agency (“APS”). Bernard had in recent years suffered a cognitive decline and the loss of his longtime partner, with whom he shared a home. A family member began exploiting his diminished cognition and over the course of 6 months to a year, became remainder person on his home, and had drained nearly $300,000.00 from various bank accounts for her own personal benefit. Bernard was unkempt, malnourished, and unattended to medically when APS became involved.
Through CELJ’s multidisciplinary efforts as guardian, we found him safe and secure housing away from his alleged abuser, prevented any ongoing access to his funds by unauthorized actors, maximized his benefits and entitlements, helped him access appropriate and ongoing medical care, and are involved in civil and criminal proceedings related to the alleged financial abuse. Bernard’s cognition is such that he cannot attend to these matters on his own behalf and requires a guardian to assert his rights for him. Without a high-quality guardian, it is likely that Bernard’s quality of life would be diminished further; he may have been placed in a nursing facility (a higher level of care than is appropriate for his needs); his medical needs continued to be neglected; and his finances further exploited. Bernard deserves to age with dignity and have an advocate in his corner. CELJ, serving as guardian, is making that happen.
Bernard’s situation is unfortunately not unique. Another client, “Judith”, has a history of mental illness who had been hospitalized due to a medication issue and placed in assisted living by a former Guardian. Since the time that CELJ has been appointed Guardian, we have worked to make a true connection with Judith by providing friendly visits in order to build trust with her. We are actively taking steps to return her to community, including cleaning up her home so that it is safe, and retaining the services of a Geriatric Care Manager to build a plan of care. Further, we are using our legal advocacy skills to negotiate down a $245,000.00 hospital bill that Judith owes. But for the work of CELJ as Guardian, Judith would be stuck in her current situation with no hope for her future. Thanks to the work of our Guardianship Team, Judith is getting help, is no longer alone, and will be home in a few more months.
The need for guardianship services far outpaces the capacity of the existing systems. CELJ can accept only a very limited number of guardianship appointments each year and typically focuses on the cases of elder abuse, or financial mismanagement. We regularly turn away additional requests because of limited funding. As our population continues to age, this problem will only be exacerbated.
Supporting SING with a $15 million annual investment is more cost effective and better serves persons in need of a guardian than the creation of the Office of Public Guardianship.
A Public Guardian Will Not Solve the Crisis
As detailed in the enclosed SING proposal, while some states have opted to establish statewide public guardianship programs to meet the needs of incapacitated persons in their state, such programs are not the answer. For example, Colorado’s Office of Public Guardianship office is a permanent state-funded public guardian program. 7 Despite the robust statutory basis for the program, and the presence of state appropriated funds, the program is still under scrutiny for staffing issues. According to a recent news article, seven guardians have resigned from the Colorado Office of Public Guardianship in the past year alone, leaving only two guardians and five staff members to handle the office’s 82 clients.8 Alaska’s public guardianship program, the Office of Public Advocacy, has faced similar staffing challenges. The Office of Public Advocacy is charged with 1,700 guardianship cases all over Alaska, with just 17 certified guardians on staff to serve these individuals. 9 The Office of Public Advocacy director, James Stinson, in a recent interview noted that the office would require an additional 40 guardians to ensure appropriate staffing levels.10
While well intentioned, public guardianship programs often have difficulty meeting the needs of their constituents largely due to staffing and funding constraints.
Support Investment in Civil Legal Services
CELJ, as a civil legal services agency, is part of the social safety net in New York State. Our services address unmet social needs, living environments, and barriers to accessing health care. These factors, known as social determinants of health (“SDOH”), have direct impact on an individual’s ability to age in place with dignity and independence. Access to civil legal services is one of the key factors to addressing SDOH, supports older adults to remain a part of the community, and helps reduce the likelihood of a need for guardian through tools such as Powers of Attorney, Health Care Proxies, elder abuse prevention, and more.
Unfortunately, however, lawyers and other staff are leaving legal services agencies for government jobs at an alarming rate because civil legal services organizations statewide are unable to achieve pay parity with those attorney counterparts working in government positions, such as the New
7 See Sophia M. Alvarez, Colorado Office of Public Guardianship FY 2025 Budget Request (2024), available at https://colorado-opg.org/wp-content/uploads/2023/11/FINAL-Office-of-Public-Guardianship-FY2024-25-Budget-R equest.pdf.
8 Marianne Goodland, Ex-Staffers Say Colorado’s Office of Public Guardianship is in Crisis, Ask Polis to Replace Leaders, COLORADO POLITICS (February 20, 2024), available at https://www.coloradopolitics.com/news/ex-staffers-say-colorados-office-of-public-guardianship-is-in-crisis-ask-polisto-replace/article_02d30512-cd05-11ee-85b9-d7f62376538e.html#google_vignette.
9 Iris Samuels, Spending Proposal Offers New Positions, but Won’t Be Enough to Resolve Alaska’s Public Guardian Shortage, ANCHORAGE DAILY NEWS (December 19, 2023), available at https://www.adn.com/alaska-news/2023/12/19/spending-proposal-offers-new-positions-but-wont-be-enough-to-resol ve-alaskas-public-guardian-shortage/.
10 Id.
York State Attorney General’s Office. The combination of higher salaries and a government pension is difficult to compete against, particularly for mid-career attorneys.
Pay for attorneys in civil legal services is significantly lower than their government counterparts doing substantially similar work, with civil legal services outside of NYC getting paid 21% less than their counterparts in the Attorney General’s office. Those inequities only grow throughout their careers and, after 21 years of civil legal services employment, experienced civil legal services attorneys are paid 38% less than their counterparts in the AG’s office in some parts of the state, based on a 2024 survey of Legal Services Coalition members.11
It is acknowledged that New York State cannot single-handedly fix the justice gap overnight, but it is also abundantly clear that the gap will widen without both a direct investment from New York State in civil legal services, and the preservation of one of its core funders, the IOLA Fund.
The Interest on Lawyer Account Fund of the State of New York (“IOLA”) currently provides funding to eighty-one different providers of civil legal services to low-income New Yorkers. IOLA’s 2024 annual report shows an estimated economic impact of around $5.32 billion from its Fiscal Year 2024 and 2025 grants totaling $750 million, including $1.95 billion in direct benefits to clients and families, and around $844 million in cost savings to the community (for avoidance of emergency shelter and domestic-violence-related costs).12
Thankfully, the SFY 2026 Executive Budget provides the necessary funding for the first of fiveyear IOLA contracts that are providing increases to providers. The budget also correctly recognizes IOLA as a fiduciary fund. However, missing from the Executive Budget is 2.5 million that IOLA requested for their Infrastructure Project, a historic investment in its grantees, which will improve the consistency, efficiency, and coordination of the legal services delivery system. We urge full funding of the IOLA request of eighty million dollars.
In addition, the Judiciary Budget includes a $45.5 million increase for Judiciary Civil legal Services. The community is grateful for this significant investment in access to justice and we know that the Chief Judge and his staff understand the difficulties facing low-income litigants in New York State. In the OCA budget, the funding is designated as such:
• “The funding supports a 3% cost-of-living adjustment and necessary additional funding to address critical needs for the poorest New Yorkers.
• An increase of “$45.5 million including $23.1 million base and $22.4 million enhanced funding.”
Pay parity is a critical issue from an equity perspective, but also a services perspective and both require funding flexibility. We are grateful for this historic investment in civil legal services and urge maximum provider flexibility to improve our ability to fill existing vacancies and provide desperately needed services connected to those vacant positions.
11 www.nylscoalition.org 12 www.iola.org
Thank you for the opportunity to submit this testimony. CELJ is available to answer any questions and provide additional information.
Lindsay Heckler, MPH Managing Attorney lheckler@elderjusticeny.org
Center for Elder Law & Justice 438 Main St., Suite 1200 Buffalo, NY 14202 (716) 853-3087 x 262
I.Summary
Proposal (SING)
In2022,nonprofit advocatesacrossNew YorkformedGuardianshipAccessNewYork(GANY)–acoalitioncommittedtoimprovingthe guardianshipsystembyensuringequalaccesstoservicesstatewide.Webelievethatevery individualwhoneedsoneshouldreceiveahigh-qualityguardianforaslongasnecessary, regardlessoftheirabilitytopay GANYelevatesthevoicesofclientsandcommunitymembers, highlightsgapsintheguardianshipsystem,andadvocatesforincreasedresourcesinthesector ItsmembersincludetheCenterforElderLawandJustice(CELJ),EACNetwork,Guardianship Corp.,Lifespan,ProjectGuardianship,andtheHon.ArthurM.Diamond,JSC(retired).
GANYproposesasolutiontoNewYork’sguardianshipcrisis,whichincludesashortageof guardians,ill-equippedguardians,andunequalaccesstodecision-makingsurrogatesforNew Yorkersinneed.OursolutionisaStatewideInitiativeofNonprofitGuardians(SING)that establishesanetworkofhigh-qualitynonprofitguardianstonotonlymeetthedemandfor servicesintheirrespectiveregions,buttobuildthecapacityofcommunity-basedorganizations todeliverguardianshipservicesinareaswheretheydonotcurrentlyexist.Unlikeother responsestotheguardianshipcrisis,oursisrootedindecadesofpracticalexperienceandadeep understandingofwhatittakestobetheguardianofanotherperson.SINGisaperson-centered, affordable,and“shovelready”solution.
II.Background
Eachyear,olderNewYorkersandpeoplewithdisabilitiesandmentalillnesseswholackfamilial caregiversrelyontheguardianshipsystemtoprotecttheirhealthandwellbeing.Unfortunately, guardianshipservicesaresorelyunderfundedandtheseNewYorkers–disproportionallywomen andpeopleofcolorwhoarelow-income–arepayingtheprice.
AccordingtoArticle81ofNewYorkState’sMentalHygieneLaw,aJusticeoftheSupreme Courtwhofindsanindividualtobeincapacitated–meaningthattheycannolongermanage theirpersonaland/orpropertyneedsandmaysufferharmordanger–ismandatedbystatuteto appointaguardianforthatindividual.Ifsuchanindividualdoesnothavearelativeorfriendto serve,lacksfundstopayaprivateguardian,livesinacountywheretheDepartmentofSocial services(DSS)doesnotacceptguardianshipappointments,andifthejudgeisunabletofinda
willingpro-bonoguardian,thecourtshavenowayofprovidingaqualityguardianforthe incapacitatedindividual.Further,publicguardiansmaybeatcapacityormaynotaccept appointmentsduetodisqualifyingfactors,suchasanindividualbeingunhousedandnothaving proofofresidence,andnonprofitprovidersarestretchedbeyondcapacity.Bothareunableto meetthegrowingneedforguardianshipservicestowhichthispopulationisentitled.Itisa dilemmafacingeveryguardianshipjudgeinNewYorkandexacerbatingexistinginequitiesin theareasofhealth,safety,andqualityoflifeforolderadultsandthosewithdisabilities.Simply put,thisisanunfundedmandatethatmustbeaddressed.
Atthesametime,NewYork’sneedforguardiansisgrowingrapidly AccordingtotheNewYork StateOfficefortheAging(NYSOFA),NewYorkhasthefourthlargestpopulationofolder adultsinthenation:4.6millionNewYorkersare60yearsofageorolder Bynextyear,this segmentisexpectedtoaccountfor25percentofallpeoplein33countiesand30percentofall peoplein18counties.ElevenpercentofolderNewYorkersarelivinginpoverty,thoughtherate issignificantlyhigheramongBlack/AfricanAmerican(23.3percent)andHispanic/Latino(17.1 percent)people.1 AccordingtotheU.S.DepartmentofHealthandHumanServices,someone turning65todayhasa70percentchanceofneedingsomeformoflong-termcare,including adultguardianship.Furthermore,increasedratesofmentalillnesshaveledmorepeopleto guardianshipcourt.AccordingtotheNewYorkStateBarAssociation,Article81guardiansplay auniquerolewhenapersonwithaguardianshiparrangementissufferingfrommentalillness andrequiresadmissiontothehospitalforinpatientpsychiatriccare.2
III.PublicGuardianshipChallenges
Whilesomestateshaveoptedtoestablishstatewidepublicguardianshipprogramstomeetthe needsoftheincapacitatedpersonsintheirstate,manyprogramshavefacedpersistentstaffing andcapacitychallenges.Apublicguardianistypicallyanexecutive-leveloffice,whichisfunded primarilythroughstateappropriations,fundsfromcountylevelgovernments,andoccasionally offsetbyfeescollectedfrompersonsunderguardianship.However,thosecentralized governmentalprogramsthatserveaspublicguardiansoftenhavedifficultymeetingtheneedsof theirconstituents,largelyduetounderstaffingandlogisticalconcerns.
Acomprehensivenationalstudyofpublicguardianshipconductedin2007revealedthatthe greatestchallengestocomprehensivestatewidepublicguardianshipmodelswerestaffingand fundingconstraints.3 Atthetime41stateshadsomesortofstatutoryprovisionforapublic
1 https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1157&context=cl pubs
2 https://nysbaorg/the-unique-role-of-the-guardian-in-inpatient-psychiatric-care/
3 See PamelaB Teaster,EricaF Wood,SusanA Lawrence,andWinsorC Schmidt, Wards of the State: A National Study of Public Guardianship,37STETSON L REV 193,232-233(October2007)
guardian,4 therewasamassiverangeinstaff-to-clientratios,rangingfrom1to50,to1to173.5 Thoughconductednearly17yearsago,manypublicguardianshipofficesstillfacethesame staffingchallenges.Bycontrast,ProjectGuardianship’sstaff-to-clientratiois1to10,witha1to 25casemanager-to-clientratio.
Colorado’sOfficeofPublicGuardianshipofficeisapermanentstate-fundedpublicguardian program.6 Despitetherobuststatutorybasisfortheprogram,andthepresenceofstate appropriatedfunds,theprogramisstillunderscrutinyforstaffingissues.Accordingtoarecent newsarticle,sevenguardianshaveresignedfromtheColoradoOfficeofPublicGuardianshipin thepastyearalone,leavingonlytwoguardiansandfivestaffmemberstohandletheoffice’s82 clients.7 Alaska’spublicguardianshipprogram,theOfficeofPublicAdvocacy,hasfacedsimilar staffingchallenges.TheOfficeofPublicAdvocacyischargedwith1,700guardianshipcasesall overAlaska,withjust17certifiedguardiansonstafftoservetheseindividuals.8 TheOfficeof PublicAdvocacydirector,JamesStinson,inarecentinterviewnotedthattheofficewould requireanadditional40guardianstoensureappropriatestaffinglevels.9
Thus,eveninstateswherethereisrobustfundingandstatutorybasesforanofficeofpublic guardianship,staffinglevelsremainanissue.Thoughtheexactreasonforthestaffingdifficulties isnotshownthroughanyempiricalresearchyet,otherprogrammaticmodelsforpublic guardianshipareinformative.TheStateofFloridahasamodelmostsimilartothatproposedby GANY.Florida’sOfficeofPublicandProfessionalGuardians(“OPPG”)modelinvolves contractingwith16regionalnot-for-profitexpertstoservetheirincapacitatedpersons.10 AccordingtotheFloridaOPPG,theyhavebeenresponsibleforoverseeingapproximately550 professionalguardiansstatewide.11 Tofundtheseoffices,eachorganizationisrequiredto compileabudget,whichtheOPPGincludesintheDepartmentofElderlyAffairs’legislative budgetrequesteachyear.12 ThesefundsarethenallocatedbasedontheGeneralAppropriations
4 Id at205
5 Id at232
6 See SophiaM Alvarez, Colorado Office of Public Guardianship FY 2025 Budget Request (2024),availableat https://colorado-opgorg/wp-content/uploads/2023/11/FINAL-Office-of-Public-Guardianship-FY2024-25-Budget-R equest.pdf.
7 MarianneGoodland, Ex-Staffers Say Colorado’s Office of Public Guardianship is in Crisis, Ask Polis to Replace Leaders,COLORADO POLITICS (February20,2024),availableat https://wwwcoloradopoliticscom/news/ex-staffers-say-colorados-office-of-public-guardianship-is-in-crisis-ask-poli s-to-replace/article 02d30512-cd05-11ee-85b9-d7f62376538e.html.
8 IrisSamuels, Spending Proposal Offers New Positions, but Won’t Be Enough to Resolve Alaska’s Public Guardian Shortage,ANCHORAGE DAILY NEWS (December19,2023),availableat https://wwwadncom/alaska-news/2023/12/19/spending-proposal-offers-new-positions-but-wont-be-enough-to-resol ve-alaskas-public-guardian-shortage/.
9 Id.
10 See Office of Public and Professional Guardians,FLORIDA OFFICE OF ELDER AFFAIRS,availableat https://elderaffairsorg/programs-services/office-of-public-professional-guardians-oppg/
11 Id
12 Id §7442009
Actofthelegislature.13 Inthefiscalyear2022-2023,OPPGappropriated$18,625,791instate funding,serving4,285incapacitatedindividualswithsaidfunding.14 Inadditiontothesefunds, guardiansarepermittedunderthestatutetosupplementtheiroperationswithothersourcesof funding.15
Havingamorewidespreadapproachtopublicguardianship,whichtapsintoavastnetworkof specializedpractitioners,canhelpalleviateconcernsaboutstaffingastatewidegovernmental office.Byspreadingoutthecaseloadandprovidinggovernmentsubsidiestothesepartner organizations,apublicguardianshipprogramsuchastheFloridaOPPGcanfocusmoreon oversightandenforcementthanfindingstafftoservethoseinneed.Itisalsoamoreefficient investmentforstategovernment.
IV ProposedSolution
Weproposemakingasignificantandpermanentstatewideinvestmentinnonprofitguardianship servicesthatwouldhelpmeetthemandateunderArticle81oftheMentalHygieneLaw Such investmentwouldensurethatallolderNewYorkersandpeoplewithdisabilitieswhoneeda guardianareabletogetone,andthatwouldallowjudgestofulfilltheirmandatetoappointa guardianforincapacitatedpersons.Further,byfundingnonprofitguardianshipproviderstomeet thegrowingdemandforservicesatscale,wecanensurethatallNewYorkershaveaccesstoa goodguardian–onethatrecognizesandprioritizestheirneedsandmaintainstheirdignity, regardlessoftheirabilitytopay.Notonlydomission-drivennonprofitsdeliverperson-centered services,buttheyalsohelppreventunnecessaryguardianshipsbyproactivelyconnectingolder adultsandthosewithdisabilitiesintheircommunitieswitharangeofsocial,financial,and healthresourcesandpublicbenefits.
GANYproposesanannualinvestmentof$15milliontofundaStatewideInitiativeofNonprofit Guardians(SING).Thisfundingwouldsustainanchorpartnersandsubgranteesindelivering person-centeredguardianshipservicesto1,500NewYorkersacrossthestateeachyear.SING memberscouldacceptappointmentsfromjudgesincaseswherethepersoninneedofaguardian doesnothaveafamilymemberorfriendtoserve;doingsocouldpreventprofit-seekingentities fromexploitingourguardianshipsystem.A$15millioninvestmentwouldenableprogramsto stayopen,toserveclientswithoutfunding-relatedinterruptions,andtoexpandtheirservicesto significantlymoreindividualsinneedofsupport,includingcountieswithoutanyexisting programs.Itwouldalsopreservejudicialresourcesandpromoteefficiencybypreventing unnecessarymotionpracticeandotherproceedings,therebyenablingjudgestofulfilltheirlegal mandatepursuanttoArticle81.Mostimportantly,SINGwouldensureaccesstoanethical,
13 Id
14 “FloridaDepartmentofElderAffairs,” supra note1,at43.
15 Id §7442009
reliable,andeffectiveguardian,regardlessoftheirfinancialcircumstance,thusmakingNew Yorkasafer,moreequitableplacetoage.
V.Model
SINGwouldfunctionasamulti-tieredmodelthatincludesasingleleadpartner(Lead)to managethegrant,severalregionalanchorpartners(APs)tomanagesubgrants,datacollection, andtechnicalsupportwhilealsoprovidingservices,andmultiplelocalguardianshippartners (LGPs)toprovideguardianshipservicesintheircommunities.Duringthefirstyear,theLeadand APswouldexpandtheirownguardianshipservicestoaddresstheunmetneedsofolderadults andpeoplewithdisabilitiesandmentalillnessesintheirexistingserviceareas,whilecollecting datatobetterunderstandthedemandforguardianshipservicesinnearbyregions,withafocuson countieswithnocurrentguardianshipprograms.Fromthere,theywouldthoughtfullyexpand outsideoftheirexistingserviceareas,whetherbyfundinganLGP,supportinga community-basedorganizationtobecomeanLGP,establishingacollaborativeservicedelivery modeltogetherwithanLGP,orsimplyprovidingguardianshipservicesinthenewgeographic region.
Thefollowingdescriptionsdetailtherolesandresponsibilitiesofeachproposedpartner.
a)LeadPartner
ProjectGuardianship(PG)servesastheLeadPartner.AsLead,PGwouldberesponsiblefor identifyingviableAPsineachofNewYork’sjudicialdistricts,collectingandformattingdata fromtheAPs,managinggrantsandsubgrants,trackingprogresstowardgrantoutcomes,and advocatingtomaintaintheappropriateleveloffundingfornonprofitguardianshipservices statewide.PGwouldalsocontinuetoserveasGANY’smainorganizingbody,schedulingand runningregularmeetings,representingthecoalitioninconversationswithelectedofficials,and draftingexternalcommunicationstoraiseawarenessabouttheneedforgreateraccessto guardianshipservices.Inaddition,PGwouldmarkettheprogramtoresidents,judges,court officers,socialserviceproviders,healthcareproviders,andothersacrossthestate,andwould makereferralstoarangeofproviders.
MarketingandReferrals
PGwouldprovidekeymarketingandreferralservicesthroughitsGuardianshipSupport Helpline.TheHelpline–whichlaunchedinJune2023andserved700NewYorkersinitsfirst year–isafirst-of-its-kindpublicresourcethathelpsNewYorkStateresidentsnavigatethe guardianshipsystemandpreventsunnecessaryguardianships.TheHelplinewouldsupportthe workofAPsandLGPsbystrengtheninglocalconnectionsbetweencommunitymembersand
healthandsocialserviceproviders,supportingcaregiversandlayguardians,andreducing relianceontheguardianshipsystemoverall.
b)AnchorPartners
Three(3)APswouldoverseethedistributionoffunds,datacollectionandreporting,and technicalsupporttoLGPsinthree(3)geographicregions:(1)ProjectGuardianship(PG)in judicialdistricts1,2,10,11,12,and13(includingNewYorkCity,LongIsland,Westchester,and lowerHudsonValley);(2)theCenterforElderLawandJustice(CELJ)injudicialdistricts7and 8(includingGreaterNiagara,Chautauqua/Allegheny,andpartsoftheFingerLakes);and(3) LifespanofGreaterRochester(Lifespan)injudicialdistricts6and7(includingCentralNew YorkandpartsoftheFingerLakes).AllAPswouldserveasliaisonsforthecourtsintheir respectivedistricts.
AsLead,PGwouldalsosupporttheexpansionoftheexistingAPsoridentifynewAPsto representjudicialdistricts3,4,and5(includingSyracuse,theCapitalRegion,1000Islands, Adirondacks,Saratoga,Catskills,andupperHudsonValley).InordertobecomeanAP, organizationsmusthaveademonstratedrecordofservingolderNewYorkers,mustmanagelarge governmentcontractsinexcessof$1million,mustmaintainanorganizationalbudgetinexcess of$3million,andmustmaintainaguardianshipservicesprogrambudgetinexcessof$500,000. FormoreinformationontheproposedAPorganizationsandtheirexperienceoperatingand developingguardianshipprograms,see Appendix A—Anchor Partner Profiles and Capacity.
DistributionofFunds
TheLeadwouldoverseethedistributionofsubgrantstoLGPsthroughoutthestate.Subgrant amountswouldbedeterminedthroughaformulabasedonclientvolumeandneedsinthe respectiveserviceareas.Further,prioritywouldbegiventoorganizationsservingresidentswho arelow-income,women,peopleofcolor,ormembersofotherhistoricallymarginalizedand oppressedcommunities.
Oncesubgrantdecisionsaremade,theLeadwouldworkwithlegalcounseltodraftandexecute subgrantagreements.Subgrantagreementsincludeinformationonprogramactivitiesand outcomes,datacollectionandreportingrequirements,andpaymentdisbursementschedules. Fromthere,theLeadwouldmanagethetransferofinitialfundsandsubsequentpaymentsin accordancewithperiodicreportingrequirementsandprogresstowardprogramobjectives.
DataCollectionandReporting
TheAPswouldworkcloselywiththeirrespectiveLGPstocompilequarterlyandannual progressreports.Thesereportswouldincludestatisticalandfinancialcomponentsthatcapture ourprogresstowardtheoverallgrantobjectives.Statisticalreportingwouldinvolvetheongoing collectionofseveraldatapointsacrosstheLGPs,suchas:
1.Client/DemographicInformation
2.IncomeandAssetInformation
3.AppointmentInformation
4.ServicesProvidedtotheClientbyGrantee
5.Outcome(s)ReachedforClient
TheAPswouldalsoprovidequalitycontrolthroughoutthegrantperiod.IfanLGPhasnot fulfilledtheprogramactivitiesandoutcomesasoutlinedinthesubgrantagreement,theAP wouldworkwiththeLGPtodevelopaplantogetbackontrack,whichmayincludeadditional technicalsupport,absorbingaportionoftheLGP’sguardianshipcases,and/ormaking adjustmentstotheprogramgoals.Anychangestotheoverallnumberofclientsservedmay resultinamendmentstothegrantagreementandsubgrantamount.
TechnicalSupport
TheAPswouldprovidevariouslevelsofsupporttoLGPsdependingontheircapacity,goals, andneeds.Fromaprogrammaticstandpoint,allLGPswouldreceivetrainingondatacollection andreporting,andwouldhaveaccesstofurther,one-on-onetechnicalassistancefromtheir respectiveAPsthroughoutthegrantperiod.
AllLGPswouldbeofferedperiodictrainingonguardianshiplawandpractice.Trainingsessions wouldbecustomizedtotheLGPsandtheirclientbasesandwouldaddressanylegislativeor practice-basedchangesthataffecttheprovisionofguardianshipinNewYorkStateinatimely manner.Further,thetrainingsessionswouldprovideaspaceforLGPstoconnectwithone another,celebrateachievements,troubleshootchallenges,andfostergreaterconnectivityand coordinationamongguardianshipprovidersstatewide.
Inaddition,APsmayofferdirectsupportonguardianshipcasesdependingontheneedsofeach LGP.Forexample,ifacaserequiresalegalprocesswithwhichtheLGPisunfamiliar,theAP maystepintoprovidethisservicewiththegoalofincreasingthecapacityoftheLGPtoprovide moreholisticguardianshipservicesinthefuture.
c)LocalGuardianPartners
LGPswouldassumealldutiesasArticle81Guardianspursuanttothepowersandauthorities grantedbythecourtsbasedonthespecificneedsoftheindividualunderguardianship.For example,someclientsmayneedaguardiantohelpthemmanagemoneybutareabletomake medicaldecisions,travelindependently,andmaintainasafelivingenvironmentontheirown. Othersmightbecapableofmanagingtheirownmoneybutneedassistancemanagingtheirhome care.Asguardian,theresponsibilityoftheLGPistohelptheindividualmakedecisionswhere supportisneeded,andtohonortheirself-determinationandagencytotheextentthattheir situationallows.Thisincludeskeepingasmanyclientsintheirhomesandcommunities–and outofinstitutionalsettings–aspossible.
Toeffectivelysupportthevariedneedsoftheirclients,theLGPsmusthavetheappropriatelegal, social,andfinancialpersonnelinplace.IfanLGPismissingoneormoreofthesecomponents, theymayserveasco-guardianwiththeirAPorworkwiththeAPtobuildthatcapacity.
Aspartoftheirlegalresponsibilities,LGPswouldensurecompliancewiththepowersand authoritiesoutlinedincourtorders.Theywouldattendcourtproceedingsrelatedtotheirclients’ guardianshiparrangementandseekcourtapprovalforbigdecisions,suchassellingreal property,permanentlyplacingaclientinafacility,andeventerminatingtheguardianship becauseitisnolongernecessary LGPsalsoadvocateforclientsincollateralmatterssuchasin fairhearingsforhousingandbenefitentitlements,landlord/tenantcourt,andforeclosure proceedings.Staffattorneysworkcloselywithcourtadministratorsandoverseethefilingof mandatoryreportingtothecourts.
Aspartoftheirsocialresponsibilities,LGPswouldcoordinateallmedical,housing,and day-to-dayclientservices.Theyconductregularclientvisits,bringmoney,groceries,andother supplies,andmonitortheclients’overallqualityoflife.Dependingonthestaffingstructureof thespecificLGP,asocialworker,casemanager,orbenefitscoordinatormayalsoberesponsible forsecuringandmaintainingpublicbenefitstowhichclientsareentitled,suchasSupplemental NutritionAssistanceProgram(SNAP),Medicaid,Disability,SupplementalSecurityIncome (SSI),andmore.Further,LGPsareresponsibleformonitoringthesafetyofclients’homesand coordinatingrepairsandmodificationswhennecessary.
Aspartoftheirfiscalresponsibilities,LGPswouldmarshal,manage,andsafeguardallclient assetsandincomestreams,includinginvestmentswhereapplicable,investments.Theyalso managebudgetingandbillpaying,particularlywhenaclienthaslimitedmeans.Inaddition, financepersonnelmayalsooverseeclientMedicaidplanning.Forexample,clientswhohave assetsover$16,800(asof2022)arenoteligibleforMedicaid.However,privatelypayingfor homecareornursinghomecarecanquicklydepleteresources.BysettingupaSupplemental NeedsTrust(SNT),aclientcanbecomeeligiblesothatMedicaidwouldpayforcare,while
fundsintheTrustcansupplementotherneeds(suchasmaintainingahome,rent,food,clothing, etc.).
Courtoversightcontinuesthroughoutthelifeoftheguardianship.Asguardians,LGPsmust regularlyreporttothecourt.Thesereportsprovideinformationabouttheindividualunder guardianshipaswellashowtheguardianismanagingtheiraffairs,plansforcareandoversight, financialoutlook,andhowtheindividual’smoneyisbeingspent.Thesereportsprovideagood basistoevaluatewhetheraguardianisadequatelyservinganindividual,thusprovidingan additionallayerofqualitycontroltosupplementoversightfromtheAP
ForalistofprospectiveLGPs,pleasesee Appendix B – Local Guardianship Partner Candidates.
VI.Budget
ExpenseDescription
Leadpartner(1)personnel,fringe,andoverheadtoprovidefiscaloversight, trackprogresstowardgrantoutcomes,markettheprogramandmake referrals,andmanageandsupportAnchorPartners.
EstimatedCost
$1,000,000
AnchorPartner(3)personnel,fringe,andoverheadtomanagefund disbursement,datacollectionandreporting,andtechnicalsupportforLocal GuardianshipPartners $2,000,000
Directguardianshipserviceproviderpersonnel,fringe,andoverheadto deliverhigh-quality,person-centeredguardianshipservicesto1,500New Yorkersannually($10,000perclientinPG’sregion;$7,500perclientin CELJandLifespan’sregions) 12,000,000 TOTAL $15,000,000
1)PROJECTGUARDIANSHIP
Profile
ProjectGuardianship(PG)wasfoundedin2005asasocialjusticeinitiativeoftheVeraInstitute ofJustice(Vera)inpartnershipwiththeNYSOfficeofCourtAdministration(OCA)tofillagap intheguardianshipandelderservicessafetynetforNewYorkers.WithOCA,Veracreatedan agencyguardianshipmodeltoprovidehigh-qualityservicesforalargelylow-incomepopulation ofagingadultsandpeoplewithdisabilitieswholackfamilyorothersupports.Today,PGisan independentnonprofitorganizationledbyadynamicBoardofDirectorsthatgovernsthe organization’sfinances,strategicplanningactivities,andcoreprogramming.
PGdelivershigh-qualityguardianshipservicesthroughoutthefiveboroughstopeoplewith limitedcapacityuponcourtappointmentpursuanttoArticle81oftheMentalHygieneLaw.PG employsamulti-disciplinaryteamoflawyers,casemanagers,andfinanceassociatestohelp guardianshipclientsremainsafe,livingathome,andasindependentaspossible.Ourclientsare partofagrowingpopulationofolderadultsandpeoplewithdisabilities,manyofwhomlive belowthepovertylinewithphysical,cognitive,and/ormentalhealthconditions.Theyhaveno familyorfriendsabletoprovidethesupporttheyneed.PGisknownforservingthecourts’most complexcases,keepingclientsintheirhomesormovingclientsbackhomeafteraprolonged institutionalstay,workingwithfamilies,andmakingcriticalendoflifedecisions.
Inadditiontoourlegalguardianshipservices,PGoperatesaGuardianshipPreventionand SupportHelpline–afreeresourceforanyonenavigatingtheguardianshipsystemorseeking alternatives.Wealsoprovideeducation,training,andsupportonguardianshipbestpracticesand alternativestothegeneralpublic,caregivers,andfamilies.Wealsofieldahighvolumeof questionsandmakereferralsforindividualsandorganizationsattemptingtonavigatethe guardianshipsystemonbehalfofthemselves,theirlovedones,clients,patients,andconstituents. Indoingso,wetakestepstoensurethatguardianshipisalastresort.
Capacity
PGisledbyaPresident&CEOwhoreportstotheBoardofDirectorsandwhosupervisesone ChiefProgramOfficer,oneChiefAdvancementOfficer,oneChiefFinancialOfficer,one DirectorofNYSGuardianshipInitiatives,andoneSeniorManagerofDataandEvaluation.The ChiefProgramOfficersupervisestwoDeputyDirectorsofLegalServicesandtwoDeputy
DirectorsofCaseManagement,who–inturn–overseeStaffAttorneysandCaseManagers respectively.Inaddition,theDirectorofFinanceandOperationsoverseesateamofClient FinanceAssociatesandanAccountsPayableAssociate.
ClientteamsconsistofaStaffAttorney,CaseManager,andClientFinanceAssociatewhowork togetheronday-to-dayplanningandprioritysettingforindividualclients,withacaseloadofup to25clients.EachStaffAttorneyandClientFinanceAssociateisontwoteams(givingthema totalcaseloadof50),whileeachCaseManagerisononeteam,servingamaximumof25clients. ABenefitsCoordinatorsupportsallteamsandclients.ClientteamsconsulttheSenior ManagementTeam(DeputyDirectors,Directors,andChiefs)andthePresident&CEOwhen complicatedandoverlappingissuesarise,aswellasonallend-of-lifedecisions.Theyalsoset otherteampriorities,suchaspreparingandsubmittingannualandfinalaccountings.
Internally,PGprioritizesraceequityinourhiring,recruitment,andstaffingpractices.Ofthe SeniorManagementTeam,38percentarepeopleofcolorand88percentarewomen;ofthe non-managementstaff,56percentarepeopleofcolorand78percentarewomen.Ofthehiresthe organizationhasmadeinthepastyear,40percentidentifyaspeopleofcolorand73percent identifyaswomenofcolor.Intotal,PGemployssixstaffwhospeakmultiplelanguagesandcan assistPG’sworkwithclientsandpartners.PGmeasuresprogressinitshiringandadvancement policiesbycontinuallymonitoringthedemographicprofilesofourstaffandseekingtodevelop andpromoteindividualsandwomenofcoloronstaff.
DatahasincreasinglybecomeapartofdailyfunctionsatPG.Activityreportsforeachclientare sentweeklytoallstaffasWeeklyCaseNotesReports.Internalreportshavealsobeencreatedfor managementandindividualstafftoincreaseourdatatransparencyandawarenesssothatweare betterabletomeetandassesstheneedsofclientsonanongoingbasis.Eachdepartmentnow goesthroughrefreshertrainingsonourcentralcasemanagementsystem,EstateManagement Services(EMS),aswecontinuallyrefineandenhanceouruseofEMS.Supportivetraining materialssuchasdataentrymanualsandmemosaremadeavailabletoallstaffforconsistent dataentrypracticesacrossdepartmentsandspecializedservices.
PGcommunicatesregularlywiththejudges,courtattorneys,andstaffintheguardianshipparts inthecountiesserved.Inaddition,weareamemberoftheGuardianshipAdvisoryCouncilanda regularpresenterattheDownstateJudges’GuardianshipRoundtable,chairedbyJudgeTroiaof RichmondCounty.Wehavestrongpartnershipsandmakecrossreferralswithproviderssuchas NewYorkLegalAssistanceGroup(NYLAG),SAGE,VolunteersofLegalService(VOLS),and MobilizationforJustice.Wealsomaintainrelationshipswithfellowpractitionersinthe guardianshipspace,includingbutnotlimitedtoAdultProtectiveServices,MentalHygiene LegalServices,andotherlegalserviceproviders.