GAO Pushes to Share Incapacity Declarations of Veterans and Disabled

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A recent Government Accountability Office (GAO) report on the heated topic of adult guardianships advocates for removing certain long-established privacy protections and has caused a temblor in the guardianship reform movement.

The GAO report in question, entitled “Incapacitated Adults: Oversight of Federal Fiduciaries and Court Appointed Guardians Needs Improvement” (GAO 11-678), made two recommendations which would in essence violate existing privacy laws. The first recommendation was welcome, according to guardianship reform activists Bonnie Reiter and Mary Ellen Taylor, as the GAO suggested that Social Security and the Veterans Administration share information with state courts concerning guardians and representative payees who have misused their powers and taken advantage of their wards.

It is the second recommendation which has aroused alarm. The GAO report is also recommending that these two federal agencies share “certain beneficiary information” with the courts.

A phone call to Kay Brown, primary author of the GAO report, provided clarification as to what “certain beneficiary information” the report referred to. According to Brown, The GAO is recommending that SSA and VA do an end run around HIPAA protections and share with state courts the names of those who have incapacity declarations on file.

In plain language, what this means is that anyone who has an incapacity declaration on file with Veteran’s Administration or Social Security could have this information released to a local court.

What may eventuate due to a change of this nature would be a greasing of the wheels for more guardianships.

The response in the guardianship reform movement has been that of grave concern. Reform activist Bonnie Reiter stated that this potentially constitutes a Trojan Horse, which could well turn into a federal to state conveyor belt for more guardianships, at a time when the voices of victims of guardianship abuse and calls for systemic overhaul of the probate courts have become impossible to ignore. Reiter’s mother, Corinne Bramson, had been placed under a guardianship in Florida after the discovery was made that family members were stealing her assets. Bramson was quickly placed into hospice under what later came to light as a bogus terminal diagnosis—the elderly woman had colitis, not cancer—and within ten days she expired from an overdose of morphine. An outraged Reiter alleges that this was done by the culpable parties to keep the matter of the embezzlement of funds out of criminal court.

The reasons the GAO is advocating for such disclosure of beneficiary information remain murky. When GAO report author Kay Brown was confronted with the question as to why it was thought to be necessary to disclose information — incapacity declarations — which are, in fact, the critical information necessary to start a guardianship, Brown’s responses became vague. In an email to this reporter, Brown waxed eloquent on the necessity to protect individuals from unscrupulous guardians, stating:

From GAO-11-949T p. 6 – With regard to state courts’ access to SSA information about its incapacitated beneficiaries and their fiduciaries, this information could provide courts with potential candidates for guardians when there are no others available. Further, when SSA’s automated system that will track fiduciaries who have misused benefits is complete, this information could help state courts avoid appointing individuals who, while serving as SSA fiduciaries, misused beneficiaries’ SSA payments.

Furthermore, she wrote:

We know from previous work (see GAO-10-1046, pages 8 & 9 for examples of cases) that vulnerable older adults can be exploited when guardians are not monitored. Also, state courts do not necessarily have the resources to adequately screen or monitor their court-appointed guardians. So any measures to help avoid appointing a guardian who is already known by another agency as someone who has financially exploited their ward would seem to prudent. (sic)

The short and sweet of it is that Brown did not respond to the question at hand. The only point in Brown’s response that even touched on the need to share beneficiary information was here, where she attempted to reassure this reporter:

I would like to reiterate my previous point that we are not advocating for a wholesale data exchange where SSA or VA would provide to courts the names en masse of all beneficiaries who have fiduciaries. Rather, we believe that procedures to allow sharing information on a case-by-case basis could help courts with the points I make above–1) identifying a potential candidate to be a guardian when there are no others readily available and 2) helping courts avoid appointing individuals who have not faithfully carried out their duties as VA or SSA fiduciaries.

Brown did not address the obvious issue that providing a list of fiduciaries who had been previously determined to have abused their position does in no way necessitate the disclosure of who at the VA or SSA has an incapacity declaration on file.

Activist Mary Ellen Taylor emailed Brown to clarify that agency’s stance on release of beneficiary information, asking “I just want to clarify that the courts will only be notified surrounding a representative if a person is adjudicated to be incapacitated. Social Security will not notify the courts automatically if a person has a Declaration of Incapacity, because that would be an invasion of privacy, a person can have capacity issues intermittent or permanent that do not fall into the category of being unable to communicate their wishes.”

But Brown, who has been in regular contact with Taylor, did not respond.

An Office on Aging staffer, speaking on conditions of anonymity, admitted to this reporter that once the door is opened to share beneficiary information the likelihood that this could be used to create more guardianships was a bonafide concern.

On September 22, the Senate Judiciary Subcommittee on Administrative Oversight and the Courts held a hearing on Adult Guardianships. While several speakers, including Kay Brown and AARP’s Naomi Karp, strongly advocated the necessity of federal agencies sharing “bad guardian” information with the courts, the issues of sharing beneficiary information in general and the incapacity declarations in specific were not brought up.

One has to ask, why not? Why slide into the GAO report a covert reference to sharing “beneficiaries information” — when it has such explosive consequences — and then fail to bring it up at the designated Judiciary Committee hearing? One wants to ask if this whole sturm and drang about “bad guardians” is just a dog and pony show to ensure that the legislation gets met with acclaim and approval, while this seemingly innocent clause about sharing “beneficiary information”– which may have the result of ensnaring untold millions in the nets of an out- of- control and abusive guardianship system — lurks just below the surface and seemingly just beyond purview.

Calls to the Press offices of Senators Klobuchar, Blumenthal and Franken, all of whom attended the September 22 hearing, were not returned. Asked whether this sharing could result in allowing SSA to provide names of all incapacitated adults to the courts, thepPress office of SSA provided a terse statement:

To answer this question will require us to speculate on a myriad of changes that could be made to the Privacy Act and other federal laws protecting the public’s information in our possession. While that is not possible, it would also be inappropriate in light of privacy implications.

In other words, “No comment.”

This reporter contacted Klobuchar’s press office asking to see the proposed legislation, which Klobuchar announced during the September 22 hearing. At the time of going to press, the staffer has not fulfilled his promise to give an update on the status of that legislation.

Approximately 1.5 million Americans are now under an adult guardianship. A 2010 GAO report admitted that there had been an upsurge of complaints of guardians abusing their wards, both financially and medically. A number of grassroots organizations have sprung up, country-wide, as victims of guardianship abuse have banded together to try to address what Bonnie Reiter has called “a holocaust on the elderly.”

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On November 2, a demonstration is planned in DC on the Capitol lawn, across from the Supreme Court, to take place between 11 a.m. and 3 p.m. According to organizer Mary Ellen Taylor, the purpose of the demonstration is to build awareness of the national problem of guardian abuse and to support our legislators in their efforts to resolve this problem. Writes Taylor, “The time is right for this rally as the combined effect of the ‘graying of America ‘, (e.g., ‘the Silver Tsunami’) and the 54 million existing disabled impacted by the abuse raise both the political stakes involved, as well as the sad cost in human suffering.” For more information, please contact Taylor at [email protected]

Janet Phelan is an investigative journalist whose articles have appeared in the Los Angeles Times, The San Bernardino County Sentinel, The Santa Monica Daily Press, The Long Beach Press Telegram, Oui Magazine and other regional and national publications. Janet specializes in issues pertaining to legal corruption and addresses the heated subject of adult conservatorship, revealing shocking information about the relationships between courts and shady financial consultants. She also covers issues relating to international bioweapons treaties. Her poetry has been published in Gambit, Libera, Applezaba Review, Nausea One and other magazines. Her first book, The Hitler Poems, was published in 2005. She currently resides abroad. You may browse through her articles (and poetry) at janetphelan.com