Bloomberg Law
March 9, 2023, 5:00 PM

Modern Laws and Out-of-Court Solutions Can Advance Guardianship

Robert Dinerstein
Robert Dinerstein
American University Washington College of Law
Deborah Enix-Ross
Deborah Enix-Ross
American Bar Association
Nina Kohn
Nina Kohn
Syracuse University College of Law
Ellie Lanier
Ellie Lanier
University of Georgia School of Law

The ABA is addressing gaps in guardianship laws and practices through its Commission on Law and Aging and Court Improvement Project.

The American Bar Association applauds Bloomberg Law for its investigative series looking into the adult guardianship industry and the loose regulations that result in exploitation of elderly and disabled people.

One problem is the laws and practices vary from state to state. The ABA supports efforts to reform guardianship and conservatorship laws and practices. A first step would be for each state to be empowered and supported in a careful examination of their laws and practices, with input from all stakeholders.

The ABA has suggested a Court Improvement Project based on a successful model that resulted in meaningful improvements in protecting the rights of children in the courts and support services.

The reform in children’s rights was made possible by federal leadership that provided resources, training, and technical assistance to states so they could make the changes that were needed. The same kind of commitment is needed to reform or replace the system designed to protect the rights of adults living with disabilities or experiencing a decline in neurocognitive ability.

Guardianship and conservatorship restrict or transfer basic legal rights of adults, sometimes with little or no fundamental due process protections and limited appeals rights. The laws in many states would benefit from updating. Also, the courts hearing these cases do not have adequate resources to keep up and need to be better funded.

The ABA Commission on Law and Aging continues to provide technical assistance to more than 25 state Working Interdisciplinary Networks of Guardianship Stakeholders, groups working on change at the state level. WINGS groups have made significant strides, but the effort was funded as a temporary demonstration project. The need is long-term, and the initial funding has already been exhausted.

The current systems often fail to protect the people the system is intended to protect. The ABA is committed to working to fix this failure, develop a workable framework, and provide justice for all.

Deborah Enix-Ross is president of the American Bar Association.

Guardianship isn’t the only tool in the toolbox. And its approach to supporting vulnerable populations is outdated.

It’s said that when the only tool you have is a hammer, you tend to see every problem as a nail. Plenary guardianship has long been seen as the law’s hammer to deal with the “problem” of the alleged incapacity of people with disabilities and older persons.

Even when guardianship functions well—and stories of financial, emotional, and other forms of abuse show it often doesn’t—it can deny the right of adults with disabilities to make their own decisions, with or without support. Because a guardian stands in for the person and makes decisions for them, the person under guardianship experiences a form of civil death.

Guardianship represents an outdated way of thinking about people with disabilities. It reflects rejected concepts of segregation, exclusion, and institutionalization. It privileges a medical model over a social model of disability.

Less-restrictive alternatives to guardianship protect disabled people’s personal and financial interests and preserve their status as decision-makers. Advance directives, health-care proxies, or powers-of-attorney can permit some people to express their will and preferences through advance planning and identification of a trusted agent.

For others, supported decision-making arrangements—where people select their supporters—can provide needed assistance.

Supported decision-making involves a range of relationships, practices, arrangements, and agreements that are designed to assist individuals with a disability to make and communicate to others decisions about their lives. Supported decision-making entities speak with, rather than for, individuals with a disability.

Supported decision-making, which originated in British Columbia, has achieved increasing recognition in US legislation and court decisions. It is a far more appropriate tool for the toolbox than guardianship.

Robert Dinerstein is professor of law and director, Disability Rights Law Clinic, American University Washington College of Law

More court resources and legislative reform are needed to acknowledge the voices and rights of those served.

Every state allows its courts to remove an adult’s right to make their own decisions and appoint someone else to make those decisions. Guardianship, also called conservatorship, is designed to protect adults who can’t protect themselves. Unfortunately, it sometimes does the opposite, by stripping people of their fundamental rights and draining their wallets.

States must promptly fix this problem and make it harder for courts to remove people’s rights. Many states allow a court to impose a guardianship with minimal evidence of an adult’s needs and abilities, and to remove rights without finding removal is truly necessary to protect the adult.

States also permit courts to appoint emergency guardians for people who weren’t given notice in advance. And in many cases, guardianships can be imposed without a judge ever setting eyes on, or hearing from, the person whose rights are at stake.

States should also make it easier for adults subject to guardianship to regain their rights, and require courts to reconsider an appointment if there’s reason to believe it isn’t needed or that a guardian is acting improperly. Adults subject to guardianship should also have access to an attorney of their choice to help restore their rights.

Court systems should also have resources and incentives to properly monitor guardians, and require them to provide a detailed plan of how they will meet the needs of those subject to guardianship, and regularly report on how they are doing.

And courts should be required to monitor guardians for compliance. Unfortunately, many states don’t require plans, and careful review of reports is not the norm.

The Uniform Law Commission’s model legislation provides states with tools to make these changes. It prohibits courts from granting guardians powers that aren’t necessary, and requires termination of powers if they’re no longer needed. It also facilitates less-restrictive interventions when appropriate, and facilitates family involvement.

There is widespread agreement among guardianship experts and advocacy organizations that states should adopt this legislation to better serve needy residents. But only a handful have enacted it.

The public has yet to demand guardianship reform from elected representatives, and while some visionary judges have been at the forefront of reform, others dismiss it as unnecessary or creating more work without more pay.

Congressional action could help overcome key barriers to state-level reform. For example, Congress could provide grants to states to improve court systems, and authorize the attorney general and others to hold states accountable if individuals are denied constitutionally protected rights without due process of law.

Each of us has the potential to become a person subject to guardianship. Each of us has the potential to find a loved one entrapped in the guardianship system. It’s time to contact elected representatives and demand guardianship reform.

Nina Kohn is professor of law at Syracuse University College of Law.

Out-of-court collaboration and more probate court funding should supplement guardianship oversight laws.

Laws that include oversight, accounting, and other protections for alleged incapacitated adults are critical tools to prevent and uncover abuses in the adult guardianship and conservatorship system. But based on my research, strong laws are not always adequate.

Many probate courts do not receive sufficient funds or have the staff or other resources necessary to fully investigate prior to the hearing, or to provide consistent and rigorous oversight after an order is in place.

In addition, a culture can develop where institutional players don’t always take or make the time to assure the person in need of services has a meaningful voice in the process.

Furthermore, once an order is in place, it can be extremely challenging to restore some or all rights, especially if a state does not include specific language in its statute allowing someone to retain the right to contract with an attorney to challenge their guardianship or conservatorship.

And because a guardianship or conservatorship proceeding reduces an adult to the legal status of a child, it is, and should be, an adversarial proceeding designed to assess and determine an outcome that is in the best interests of the alleged incapacitated adult. With the rights and liberty interests at stake, the adversarial nature of the hearing is necessary.

Still, there is much to be gained by collaborative approaches, such as supported decision-making, elder care coordination, or mediation where families and loved ones work together, and with the help of trained professionals, craft an outcome that is tailored to the individual’s needs, is flexible, can be adapted as circumstances change, and fulsomely reflects the person’s values, interests and wishes.

The same oversight protections such as oversight by a third party can be incorporated into these agreements, and where appropriate, such agreements can become part of the court’s order in a case.

Ellie Lanier is clinical professor emerita at University of Georgia 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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