H.C.R. NO.



H.D. 1









WHEREAS, pursuant to S.C.R. No. 119, S.D. 1, the 1978 Legislature recognized that many residents of this State, by reason of various disabilities, are temporarily or permanently unable to make choices for themselves or to protect their own rights; and

WHEREAS, a Task Force was convened to study and review laws relating to guardianship, civil commitment, and protective services; and

WHEREAS, in 1980, the Task Force published a booklet entitled Guardianship and Protective Services in Hawaii that sets forth the Task Force's findings and recommendations; and

WHEREAS, within its booklet, the Task Force listed problem areas within the guardianship, civil commitment, and protective services systems; and

WHEREAS, with respect to guardianship, the Task Force found that there is:

(1) A shortage of private guardians and a need for methods and resources to assist and guide guardians so they can function more effectively;

(2) A conflict of interest that creates problems when service-providing agencies act as guardian of the person for whom they also provide other services; and

(3) A need for:

(A) Increasing the alternatives for incapacitated people, other than full guardianship;

(B) Follow-up and monitoring of existing guardianships to ensure that:

(i) The ward's best interests are protected;

(ii) The guardian is properly performing the guardian's duties; and

(iii) The guardianship is terminated when no longer needed;


(C) Stronger and more accessible protective services with adequate due process safeguards to protect incapacitated adults from abuse, neglect, and exploitation;


WHEREAS, the Task Force recommended that Hawaii adopt a public guardianship system that would be limited to personal guardianships since the Clerk of the Circuit Court already provides property guardianship services for small estates when the services of trust companies are not available; and

WHEREAS, the public guardian would provide guardianship services to incapacitated people when there is no private guardian willing or able to serve as guardian; and

WHEREAS, the Task Force studied other jurisdictions and noted that the following four general models have been used in the 39 states that have some form of public guardianship:

(1) A public guardian who functions under the judicial branch of the government;

(2) A public guardian who operates an independent state office under the Governor, similar to the Office of the Public Defender in Hawaii;

(3) Assigning the function of the public guardian to a state agency that is responsible for providing services to one or more classes of incapacitated people; and

(4) Designating a county official as public guardian for the county under the county government;


WHEREAS, the Task Force eliminated the county model because of Hawaii's small size and limited population, and also eliminated the service-providing state agency model because of a conflict of interest; and

WHEREAS, the Task Force recommended placing the public guardian within the Judiciary for the following reasons:

(1) The Judiciary does not provide direct services to wards, whereas the Governor, through the executive departments, does; and

(2) Public guardianship for small estates already exists within the Judiciary, and the personal guardianship system should offer at least the same services and protection as property guardianship;


WHEREAS, Act 223, Session Laws of Hawaii 1984, established the Office of the Public Guardian within the Judiciary; and

WHEREAS, in 1998, driven by factors such as a sluggish state economy, increased judiciary responsibilities, and a desire to conduct an internal evaluation, the Judiciary commenced its improvement process initiative; and

WHEREAS, the goal of the initiative was to reduce duplication of effort, produce cost savings, and generate revenue, resulting in a more efficient and effective Judiciary; and

WHEREAS, the Judiciary's mission is to administer justice in an impartial, efficient, and accessible manner in accordance with the law; and

WHEREAS, a Plan Review Committee consisting of the Administrative Director of the Courts, judges, court administrators, and court staff was appointed by the Chief Justice and charged with reviewing critiques submitted by employees and a private consultant and developing recommendations and strategies for improving the Judiciary; and

WHEREAS, the private consultant studied the Judiciary's court system and administrative organization, reviewed the Judiciary's mission and goals, and determined that the Office of the Public Guardian does not belong in the Judiciary; and

WHEREAS, the Plan Review Committee recommended divesting the Office of the Public Guardian from the Judiciary for the following three reasons:

(1) A conflict of interest exists when both property guardians and personal guardians reside within the Judiciary;

(2) A conflict of interest exists when Family Court judges appoint guardians from within the Judiciary; and

(3) A conflict of interest exists when Family Court judges are required to review and monitor the performance of the guardians of the Office of the Public Guardian;


WHEREAS, the Chief Justice adopted the Plan Review Committee's recommendation and included the divestiture of the Office of the Public Guardian as one of the Chief Justice's initiatives in achieving court excellence; and

WHEREAS, the Judiciary initiated several informal discussions with executive departments regarding the possible relocation of the Office of the Public Guardian to the executive branch and these discussions highlighted the need for a formal body to evaluate and review laws relating to guardianship; and

WHEREAS, with the senior citizens sector growing faster than any other sector of the State's population, there is an increased community interest in guardianship issues and an increased need and demand for guardianship services; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-second Legislature of the State of Hawaii, Regular Session of 2004, the Senate concurring, that the Judiciary is requested to convene a Task Force to examine current situations, practices, and laws relating to public guardians, for the purpose of reevaluating the appropriate placement of the Office of the Public Guardian; and

BE IT FURTHER RESOLVED that the Task Force include the supervisor of the Office of the Public Guardian who shall serve as the temporary chairperson for organizational purposes until the Task Force is organized; and

BE IT FURTHER RESOLVED that the Task Force be permanently chaired by a neutral party not attached to any of the organizations represented in the Task Force; and

BE IT FURTHER RESOLVED that the Task Force be comprised of the director or administrator, or their designee from the following organizations:

(1) Department of Human Services;

(2) Department of Health;

(3) Department of the Attorney General, Family Law Division;

(4) The Judiciary;

(5) The Attorney General;

(6) The Public Defender;

(7) University of Hawaii's School of Law Elder Law Program;

(8) Hawaii Disability Rights Center;

(9) Legal Aid Society of Hawaii;

(10) Volunteer Legal Services Hawaii;

(11) Hawaii Association for Retarded Citizens;

(12) Mental Health Association of Hawaii;

(13) Healthcare Association of Hawaii;

(14) American Association of Retired Persons, Hawaii; and

(15) Department of Health, State Council on Developmental Disabilities;


BE IT FURTHER RESOLVED that the Task Force is requested to prepare appropriate legislation and submit its findings and recommendations to the Legislature no later than twenty days prior to the convening of the Regular Session of 2005; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Chief Justice, Attorney General, Public Defender, Director of Health, Director of Human Services, Dean of the University of Hawaii's School of Law, President of the Hawaii Disability Rights Center, Executive Director of the Legal Aid Society of Hawaii, President of the Volunteer Legal Services Hawaii, Executive Director of the Hawaii Association for Retarded Citizens, Executive Director of the Mental Health Association of Hawaii, President of the Healthcare Association of Hawaii, Director of the American Association of Retired Persons Hawaii, and Executive Administrator of the State Council on Developmental Disabilities.

Report Title:

Placement of the Office of the Public Guardian Task Force