Bloomberg Law
March 9, 2023, 9:00 AM

Courts Must Revamp Approach to Guardianship, a Potent Legal Tool

Naomi Cahn
Naomi Cahn
University of Virginia School of Law
Rebekah Diller
Rebekah Diller
Yeshiva University Cardozo School of Law
Deirdre Smith
Deirdre Smith
University of Maine School of Law

Guardianship is a powerful legal tool. Reforms are present, but their impact is limited when courts’ approach is outdated.

Adult guardianship, long a problematic institution, has been subject to significant reforms in recent years. Most reforms, including alternative arrangements such as supported decision-making, aim to preserve as much of a person’s autonomy as possible and prevent potential abuses of this powerful legal tool.

But the impact of these important reforms is limited when the courts charged with implementing them perpetuate outdated approaches to guardianship.

As a legal mechanism, guardianship of adults dates to the colonial era. It originally concerned the proper management of the property of a person with disabilities.

A person’s relative would petition to be appointed as their guardian in the local probate court—the same place that helped one manage the estate of a family member who had died.

Such courts functioned largely as administrative offices and were far more informal than other courts. While most states have shifted jurisdiction of guardianship proceedings to their statewide court system, in several states, jurisdiction over guardianships is maintained in probate courts. These courts retain many practices that are inappropriate for contemporary guardianship proceedings.

Notably, probate courts may be overseen by judges who are not legally trained or who are part-time with their own law practice on the side. Or, the courts aren’t equipped to handle contested litigation. For example, they might not record proceedings, provide access to counsel, or follow standard rules of evidence or pretrial discovery.

Guardianship has come a long way from its origins. We now understand that appointment of a guardian significantly implicates a person’s autonomy and constitutional rights.

The courts overseeing those matters therefore have a heightened responsibility to enforce robust litigation procedures, and closely monitor the appointment thereafter, to ensure that an individual’s rights, person, and property are protected.

For these reasons, in addition to reforming the substantive law of adult guardianship, state policymakers need to consider which courts and judges are granted the power to oversee these matters and change them as necessary.

Deirdre Smith is professor of law, University of Maine School of Law.

Guardianship in practice is implemented too readily, rather than as a last resort, and is often harmful.

Stolen funds, miscarriage of justice, and lost years of freedom are just some of the dangers imposed by state guardianship systems that don’t ensure guardian accountability. Any reform of these systems will be incomplete, however, if we don’t also limit overuse of guardianship in the first place.

A person under guardianship loses certain basic rights we all take for granted, including accessing one’s own money, deciding where to live, and choosing whom to spend time with.

Because the restrictions are so significant, guardianship is only supposed to be imposed as a last resort. And when a guardianship is ordered by a court, it’s supposed to be narrowly tailored so the person under guardianship can maintain maximum rights.

But in practice, guardianship often is implemented too readily and broadly when less-restrictive alternatives are available. For example, service providers sometimes improperly create pipelines to guardianship by incorrectly informing family members that they have no other choice but to seek guardianship for a loved one with a disability to access education, health care, or social services.

Older persons often land in guardianship because of a health-care, housing, or financial crisis that could have been addressed without stripping away basic rights. Once in place, guardianships can take on a life of their own, often lasting indefinitely even when circumstances change.

Courts should ensure that alternatives are fully explored and attempted before granting guardianship. An emerging alternative is supported decision-making, where an individual retains the right to make decisions while receiving assistance and support from people they trust.

The Fourth National Guardianship Summit convening judges, lawyers, guardians, and other experts called for expanding the practice of supported decision-making and ensuring that avenue is tried before any guardianship happens.

When guardianship is imposed, it should be easier to end. Guardianships should either be set for a limited term or periodically reevaluated by the court. The person under guardianship, who often lacks access to counsel, funds, and basic records, shouldn’t have the burden of making the case to restore their rights.

Rebekah Diller is clinical professor of law, Bet Tzedek Legal Services Clinic, Yeshiva University Cardozo School of Law.

The problem isn’t guardianships—it’s guardians. The system works in many instances.

Guardianships have a bad reputation. Guardians are far too easy to appoint, often have more power than they need, and may become too greedy, failing to protect the people they are guarding.

The problem is lack of oversight. Even though guardianships can only start with a court proceeding, there aren’t enough checks to make sure the guardianship is needed and, if one is ordered, that the guardian truly is acting in the best interests of the person they’re guarding.

Most people will never need a guardianship. Instead, they might give authority to a trusted agent to make health-care and financial decisions for them. They may call on family members who will watch out for them and provide the care they need.

But in other circumstances, guardianships serve an important purpose for vulnerable adults. For people who haven’t engaged in the necessary planning, or whose planning has fallen apart, guardianship can provide a solution.

For example, my friend doesn’t have a spouse or children, and his siblings live far away and are somewhat estranged. His illness restricts his physical mobility. With no trusted person available to make sure he gets groceries and medical care, he’s a prime candidate for some kind of legal help.

There are options for him short of a full guardianship, such as supported decision-making or a limited guardianship that might allow him control over where he lives, whether he can vote, and even whether he can keep his cellphone.

At some point, however, a full guardianship, with the right guardian, might be useful. We hear of many abuses of guardianships—not-for-profit organizations that become consumed by greed and neglect and abuse the people they are guarding, and people subject to guardianships who can manage their own lives, but instead spend years having their lives mismanaged by someone else.

But we don’t hear about successful guardianships where guardians do act in the best interests of the people they are protecting. The problem isn’t guardianships—it’s the guardians.

Naomi Cahn is professor of law and co-director, Family Law Center, University of Virginia School of Law.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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