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 David Arnold
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Commentary
There is currently an act before the Massachusetts Legislature to establish the Office of Adult Guardianship and Decisional Support Services. (S.1177/H3027). The purpose of the bill is to provide guardianship services to “unbefriended” people who are unable to manage their affairs.

These people are the most vulnerable in society. They have no one to complain if they are subjected to abuse by a guardian. They are the perfect victims. Any system for providing guardianship services to the “unbefriended” has to have iron clad protections against abuse.
On the contrary, this bill gives immunity to guardians. Guardians are already given immunity by judges of the Probate Court. Regardless of the intent of this immunity the result has been to create a system of legalized crime where guardians commit crimes with impunity. Other health care providers (doctors, nursing homes, etc. ) have to carry liability insurance. Conservators have to be bonded. Guardians should have liability insurance, not immunity.
Democracy was invented to prevent abuse of authority by government. The best way to stop abuse of guardianship is to use principles of democracy such as separation of powers (no one has sole control), checks and balances, accountability (no immunity), avoiding conflict of interest by putting authority in the hands of disinterested parties, etc.
The current bill has none of these protections of democracy. The Governor’s Advisory Council has no authority.  A careful reading of the bill shows that the Executive Director of the Office of the Adult Guardianship and Decisional Support Services is the only entity given any authority. The Office of Adult Guardianship has no authority as an entity. All its duties and powers are executed by the Executive Director.
I have attempted to rewrite the bill in a way that makes maximum use of the principles of democracy to prevent abuse of power.
All comments, corrections, suggestions, etc.  are welcome.
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Thank you,
David Arnold
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Read these bills here:
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 REVISED BILL WITH IMPORTANT CHANGES HERE:

“An Act to establish the office of adult guardianship and decisional support services.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Sections highlighted in red are to be inserted.

1 SECTION 1. The General Laws are hereby amended by inserting after Chapter 19D the

2 following chapter:.

3 CHAPTER 19E

4 OFFICE OF ADULT GUARDIANSHIP AND DECISIONAL SUPPORT SERVICES

5 Section 1. Definitions

6 As used in this chapter, the following words shall, unless the context clearly requires

7 otherwise, have the following meanings:.

8 “Act,” the Adult Guardianship and Decisional Support Act.

9 “At Large Member,” a person with personal or professional experience with

10 guardianship, conservatorship or voluntary decisional support for elderly,

11 intellectually/developmentally disabled persons, and/or mentally ill persons. “At Large Members” shall be disinterested parties from all walks of life who do not derive income or other benefits from guardianship or conservatorship.

12 “Chief Justice,” the individual who is the Chief Justice of the Probate and Family Court

13 Department of the Trial Court of the Commonwealth of Massachusetts.

14 “Council,” the Governor’s Advisory Council for Adult Guardianship and Decisional

15 Support, as established and empowered herein.

16 “Decisional Support Services,” a range of informal and formal services to meet the needs

17 of persons with diminished decisional capacity.

18 “Executive Director,” the executive director of The Office of Adult Guardianship and Decisional

19 Support Services, as appointed and empowered herein. The “Executive Director” shall be a disinterested party who does not derive income or other benefits from guardianship or conservatorship.

22 “Incapacitated person,” someone as defined in MGL Ch. 190B, Section 5-101 (9).

23 “Office,” the Office of Adult Guardianship and Decisional Support Services, as

24 established and authorized herein.

25 “Public Guardian,” the entity designated as such under applicable provisions of the Act.

26 “Volunteer,” a person recruited, trained and supervised by the Public Guardian to assist

27 the Public Guardian in carrying out the duties of a guardian, conservator or other decisional

28 support person on behalf of the Public Guardian.

30 Section 2. Office of Adult Guardianship and Decisional Support Services created; duties.

31 (a) The Governor shall create an Office of Adult Guardianship and Decisional

32 Support Services and shall appoint

33 the executive director.

The appointment shall be confirmed by a 2/3 vote of the Council. The executive director shall be knowledgeable of (1) the clinical causes and

35 manifestations of incapacity; (2) statutes and common law governing the appointment of

36 guardians and conservators, and/or authorizing individuals to make decisions for persons who

37 are incapacitated, or to assist such persons to make their own decisions; and (3) the appropriate

38 services available to meet the needs of incapacitated persons. The executive director shall serve

39 on a full-time basis, and shall personally, or through representatives of the office, carry out the

40 purposes and functions of the Office in accordance with state and federal law. The executive

41 director shall report to the Governor.

42 (b) The Governor shall appoint the members of the Office of Adult Guardianship and Decisional Support Services. The members shall be disinterested parties from all walks of life who do not derive income or other benefits from guardianship or conservatorship. The members shall serve for a term of 3 years.

The Office shall oversee the Public Guardian as further provided in this Act.

45 (c) Consistent with the purposes and objectives of this Act, the Office

46 shall:

47 (i) Review and evaluate the work of the Public Guardian through visits, forms, audits

48 and/or other reasonable and appropriate means.

49 (ii) Develop practice standards for the Public Guardian and its employees and

50 volunteers, in order to promote best practices in the performance of all such services throughout

51 the Commonwealth;

52 (iii) Promote or provide educational materials and programs to increase public

53 awareness of guardianship alternatives, such as Health Care Proxies, Durable Powers of

54 Attorney, Medical Orders for Life Sustaining Treatment (“MOLST”) directives, and similar

55 instruments, that may delay or avoid the need for judicial or other involuntary process in the

56 event of incapacity;

57 (iv) Promote or provide, in conjunction with private and other public resources,

58 statewide curricula and programs to train interested parties to serve as guardians, conservators

59 and voluntary decisional support persons;

60 (v) Develop a uniform system of reporting and collecting statistical data regarding

61 guardianships and conservatorships;

62 (vi) Prepare an annual budget for the implementation of the Act;

63 (vii) Establish procedures for the investigation and resolution of complaints against the

64 Public Guardian. The Office shall establish a Panel consisting of an odd number between 3 and 9 of disinterested parties from all walks of life who do not derive income or other benefits from guardianship or conservatorship for hearing complaints against the Public Guardian. Complaints not resolved by the Panel may be resolved by a court of law.

65 (viii) The Office may, as time and funding permit, also (a) develop

66 resources to serve as an informational, professional and/or clinical resource for persons serving

67 as guardian, conservator or voluntary decisional support person; (b) define, coordinate and

68 promote research related to decisional surrogacy and support, including research into different

69 approaches for supporting diverse clinical populations;

(c) perform such other duties as the

70 Office finds useful and appropriate to ensure that high-quality decisional support

71 services of all kinds are available to all who need them in the Commonwealth.

72 Section 3. Advisory Council on Adult Decisional Support created; members; duties.

73 (a) There shall be a Governor’s Advisory Council for Adult Guardianship and

74 Decisional Support, to consist of not less than 15 members and not more than 30 members. The

75 members of the Council shall be appointed by the Governor for terms of three years. The

76 Council shall consist of persons who live in the Commonwealth and shall include guardians,

77 advocates for people under guardianship and other interested individuals. The chairman of the

78 Council shall be appointed by the Governor and shall serve for a term of three years. The appointment of the chairman shall be confirmed by a 2/3 vote of the Council. The Governor shall appoint the At Large Members of the Council. The At Large Members shall serve for a term of 3 years. The

79 following shall also serve as ex-officio members of the Council: the Chief Justice of the Probate and

80 Family Court or his designee, the Senate President, the Speaker of the House of Representatives,

81 the Attorney General or his designee, the Secretary of the Executive Office of Health and Human

82 Services or his designee, the Commissioner of the Department of Developmental Services or his

83 designee, the Secretary of the Executive Office of Elder Affairs or his designee, the

84 Commissioner of the Department of Mental Health or his designee, and representatives from

85 such other secretariats, departments, divisions or agencies as the Governor or the Council may

86 request.

87 (b) The Council shall : (i) advise the Governor on policy, planning, and priorities for

88 the Office of Adult Guardianship and Decisional Support Services and the Public Guardian for

89 the Commonwealth; (ii) assist the executive director of the Office of Adult Guardianship and

90 Decisional Support Services in coordinating the efforts of all public agencies concerned with

91 decisional support services and in promoting the accessibility of all state services; (iii) increase

92 communication, mutual understanding, and willingness to cooperate among community groups

93 and organizations that serve people with decisional support needs; and (iv) review the Annual

94 Reports of the Public Guardian and executive director. The Council may meet quarterly.

95 (c) Members of the council shall not receive a salary or per diem allowance for

96 serving as members of the council, but shall be reimbursed for actual and necessary expenses

97 reasonably incurred in the performance of their duties.

98 Section 4. Public Guardian: designation; replacement; transfer of duties and powers.

99 (a) The Public Guardian shall be a state Elder Service Agency so long as it demonstrates, to the

100 satisfaction of the Governor’s Advisory council for Adult Guardianship and Decisional Support, its business plan and financial capability to perform the duties

101 of the Public Guardian as a pilot project or statewide, as the Council deems

102 appropriate. If an Elder Service Agency does not meet the requirements the Council may appoint another non-profit agency by 2/3 vote of the council. This agency shall serve as the Public Guardian for the Commonwealth for a length

103 of time, not exceeding five years, as designated by the Council.

104 (b) The Council by 2/3 vote of the members may revoke the designation of the Public Guardian by

105 signed letter, at any

106 time during a term of designation, provided that revocation may not take effect sooner than one

107 hundred eighty days from the date that written notice thereof is received by the Public Guardian,

108 unless a sooner effective date is essential to the protection of the person or property of

109 individuals for whom the Public Guardian has been appointed as guardian or conservator. Upon

110 expiration of the designated term resignation, or removal of the Public Guardian, the procedure

111 set forth in subsection (a) shall be followed to re-designate the Public Guardian, or to designate a

112 different public or private agency to be Public Guardian, as the case may be, for a new term of

113 up to five years.

114 (c) In the event that the agency serving as Public Guardian is replaced for any reason,

115 either during or at the conclusion of its term of designation, it shall continue, unless prohibited

116 by law or by directive of the Office to serve as guardian or conservator for all individuals

117 for whom it has been so appointed, and shall continue to have the same authority and provide the

118 same services under the same terms that existed prior to said replacement, and the continuation

119 of authority of the Public Guardian shall remain in effect, until a new Public Guardian has been

120 duly designated under the foregoing subsection (a), and has been authorized under the following

121 subsection (d) to assume all of the duties and powers of the departing Public Guardian under

122 each said appointment.

123 (d) Upon any replacement of the agency designated hereunder to serve as Public

124 Guardian, the Office may cause a

125 decree to issue in each guardianship and conservatorship case in which the former Public

126 Guardian was named as fiduciary, naming as successor fiduciary the new Public Guardian, and

127 notice of the change of fiduciary shall be issued by the new Public Guardian to all interested

128 parties of record in each said case. The new Public Guardian may, in its sound discretion, in any

129 case for which has been appointed hereunder as successor fiduciary, accept as employee or

130 volunteer any person who has served in that capacity in that case for the prior Public Guardian.

131 Section 4A. Public Guardian: bond

132 (a) The Public Guardian shall secure a general bond in an amount fixed by the

133 Office, payable to the state and issued by a surety company approved by the Office,

134 an attested copy of which shall be filed with the Office. The bond shall insure the faithful performance by the Public Guardian of duties

136 as conservator or guardian under Chapter 190B of the Massachusetts General Laws.

137 (b) The general bond and oath of the Public Guardian is in lieu of the bond and oath 138 required of a private conservator or guardian.

139 Section 4B. Public Guardian: authority to serve as guardian or conservator

140 (a) The Public Guardian shall:

141 (i) receive referrals and recommendations regarding individuals who may be in need 142 of a guardian and independently evaluate the referral to make a determination as to the physical,

143 social, and financial conditions of the individual, whether there are alternatives to public

144 guardianship, and whether the individual is at risk of abuse, neglect, or exploitation;

145 (ii) if duly appointed as guardian or conservator, be vested with all the powers and 146 duties of a guardian and/or a conservator, as the case may be, under Article V of Chapter 190B

147 of the Massachusetts General Laws, except as otherwise provided by law.

148 (b) The Public Guardian may:

149 (i) After evaluation of the conditions of the individual:

150 (A) Make a recommendation as to a suitable individual who is available and willing to

151 serve as guardian, conservator, or surrogate decision maker or refer to an appropriate private, nonprofit, or

152 other entity willing to serve as guardian or conservator; or

153 (B) File a petition to the Office of Adult Guardianship and Decisional Support Services for its own appointment, or file for the appointment of any other

154 individual as guardian or conservator where it is determined that the filing of a petition on behalf of another

155 may avoid the need for public guardianship; or

156 (C) Consent to serve as guardian or conservator where another entity or individual files a petition for

157 the appointment of the Public Guardian.

158 (ii) Employ staff and delegate to members of the staff or to volunteers the powers and

159 duties as guardian or conservator under the said Chapter 190B; however, the Public Guardian retains

160 responsibility for the proper performance of the delegated powers and duties.

161 (c) The Office, in consultation with the Public Guardian, shall develop

162 standards and procedures to ensure that any employee or volunteer retained by the Public

163 Guardian as guardian or conservator is qualified by character, education, experience and training

164 to meet the fiduciary standards that apply to the services that the person will perform. Such

165 standards and procedures shall include background checks, but they shall emphasize a weighing

166 of factors rather than minimum requirements, and the Office shall not directly or

167 indirectly influence the Public Guardian to hire or retain any particular individual as employee,

168 volunteer or independent contractor, either by regulation or otherwise.

169 (d) The Office shall, in consultation with the Public Guardian, develop

170 standards and procedures specifying –

171 (i) Any duties or decisions that may not be delegated to a volunteer for the Public 172 Guardian, and whether or how any such duty or decision may be exercised temporarily at a time

173 when no employee of the Public Guardian can be reached; and

174 (ii) Requirements for ongoing training, supervision and evaluation that are required of

175 any person acting for the Public Guardian in its capacity as guardian or conservator.

176 (e) If the Public Guardian ascertains, after having been appointed guardian or

177 conservator of an incapacitated person, that a family member or other person who is qualified to

178 serve as guardian or conservator is available to serve in that capacity, the Public Guardian shall,

179 upon its own petition or the petition of the qualified person, seek or support, as the case may be,

180 the appointment of the qualified person as successor guardian or successor conservator by the Office.

184 Section 4C. Fees for Service.

185 (a) The Public Guardian may charge fees for service, pursuant to a fee schedule

186 developed by the Office, upon approval of such schedule by the Council, which

187 shall identity in reasonable detail the circumstances under which an incapacitated person is

188 deemed to have sufficient available income or assets to pay for such services.

189 (b) The Public Guardian’s financial accounts shall identify clearly as a separate

190 source of income all revenue that is paid as a fee for guardianship or conservatorship services

191 from income or assets of the incapacitated individual, and an accounting of such revenue shall be

192 made available upon request to the executive director, provided that the Public Guardian shall

193 not be required to provide said accounting more often than monthly.

194 Section 4D. Standards and records; disclosure

195 (a) The manner in which the Public Guardian provides guardianship and

196 conservatorship services at all times shall conform substantially to practice standards 197 promulgated from time to time by the Office.

198 (b) The Public Guardian shall keep and maintain the following kinds of records of its 199 operations, in accordance with regulations or guidelines issued by the Office

200 (i) Financial records in accordance with generally accepted accounting principles;

201 (ii) Case control and management records that are adequate to show whether services 202 provided and outcomes achieved by the Public Guardian are consistent with the intent of the Act;

203 (iii) Detailed referral information showing the number, reasons and sources of all

204 referrals for fiduciary services, the disposition of each referral, and pertinent clinical information

205 that the Public Guardian receives with respect to the individual being referred.

206 (c) Except as provided herein or otherwise required by law, no personal, financial or 207 medical information about any person referred to or receiving services from the Public Guardian,

208 other than information that already is a public record, shall be disclosed by the Public Guardian.

209 (d) The following kinds of disclosures are specifically authorized:

210 (i) De-identified statistical information may be disclosed in the sound discretion of 211 the Public Guardian to any public or private entity that the Public Guardian reasonably believes

212 is engaged in research, education or advocacy intended to foster best practices, increased public

213 support or legal reforms to benefit persons in need of decisional support.

214 (ii) Information required by any public or private provider of benefits, services or 215 goods that the Public Guardian elects, in its sound discretion, seeks to obtain or acquire for the

216 individual may be disclosed to the extent required, provided that the Public Guardian shall

217 inquire into, and to the extent possible, shall take reasonable steps to ensure, the confidentiality

218 of the information in the hands of said provider.

219 (iii) Information may be disclosed in the sound discretion of the Public Guardian to 220 any relative or other person who is authorized under any Massachusetts law to act on behalf of a

221 person referred to or receiving services from the Public Guardian, including any provider of

222 essential medical or financial services, to the extent that the Public Guardian believes that

223 releasing such information is in the best interests of the individual.

224 (iv) Any similar disclosure that is required in order to benefit an individual receiving 225 services from the Public Guardian may be made, to the minimum extent required.

226 (v) Other than de-identified information that is authorized under the above subsection 227 (1), disclosures that benefit the Public Guardian, the Office, or any other public or

228 private entity, but that do not materially benefit a person receiving services from the Public

229 Guardian, are prohibited.

230 Section 4E. Oversight and Accountability

231 (a) The Office shall have at all times unfettered access to the books and

232 records of the Public Guardian, provided that –

233 (i) The Office shall provide reasonable notice and accommodation to the

234 Public Guardian anytime the Office wishes to review records, including scheduling with those

235 employees or volunteers of the Public Guardian that it wishes to be present

when records are reviewed;

237 (ii) The Office shall not remove any records from the Public Guardian,

238 but may take copies;

239 (iii) The Office shall be bound by the same disclosure and privacy of

240 information requirements with respect to any copies or knowledge of case records of the Public

241 Guardian, as set forth in the foregoing Section 4D, that apply to the Public Guardian;

242 (iv) The Office shall not disclose any proprietary information about the

243 Public Guardian or its operations without the prior written consent of the Public Guardian.

244 (b) The Public Guardian shall file with the Office a written annual report

245 on its operations by September 1 of each year for the preceding fiscal year. Said report shall

246 include –

247 (i) The number of persons for whom the Public Guardian is serving as guardian or 248 conservator;

249 (ii) The number of employees, volunteers and contractors who are acting for the

250 Public Guardian to perform its duties as guardian and/or conservator;

251 (iii) Statistics as to the number, sources, types, disposition and other relevant

252 information about the referrals received by the Public Guardian;

253 (iv) A description of all premises from which the Public Guardian operates and the 254 service capacity of each location;

255 (v) A cash flow and Financial Statement;

256 (vi) A description of policies and initiatives for locating family members or other

257 suitable persons to act as guardian or conservator in the cases for which it has been appointed;

258 (vii) A description of policies and initiatives for encouraging and supporting

259 independence and self-determination to the extent possible among all of the individuals for

260 whom the Public Guardian serves as guardian or conservator.

261 (c) The directors or trustees of the Public Guardian shall commission an annual audit 262 of its operations by a qualified certified public accountant, and a copy of such audit shall be

263 provided to the Office when completed.

264 (d) The Office shall designate a qualified agency or provider to conduct

265 an investigation (a “Clinical Audit”) once every two years into the practices of the Public

266 Guardian related to the management of each ward’s personal affairs and property. The Clinical

267 Audit may, in the Office’s discretion, include a review of the presence and accuracy

268 of

269 (i) Intake information, including presenting issues, demographic information and

270 contact information for family and friends;

271 (ii) Medical information including the individual’s diagnoses and all medications

272 prescribed to him or her;

273 (iii) Functional assessments including Activities of Daily Living (ADLs), Instrumental

274 Activities of Daily Living (IADLs) and safety;

275 (iv) End-of-life planning assessments;

276 (v) Assessments of psycho-social and spiritual needs;

277 (vi) Legal documents including bonds, petitions, Orders of Appointment, Expansions

278 of Authority, Inventories, Accounts, Care Plans and similar instruments;

279 (vii) Case notes demonstrating all work done with, or on behalf of, the incapacitated 280 person;

281 (viii) Correspondence on behalf of the incapacitated person;

282 (ix) Case closing documents, when applicable.

283(e). Public Guardian: Liability insurance. The Public Guardian, its employees, and volunteers shall be covered by liability insurance. The method of providing and financing this insurance shall be determined by the Office.

284 Jurisdiction. The Office of Adult Guardianship and Decisional Support Services shall have authority for appointment of guardians and conservators for “unbefriended people”, and any petitions for guardianship or conservatorship filed with Office of Adult Guardianship and Decisional Support Services, and all contested petitions for Guardianship and Conservatorship. The Probate court shall have jurisdiction over uncontested petitions for Guardianship and Conservatorship filed with the Probate Court. In the event of a dispute over jurisdiction a court of law shall have jurisdiction.

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