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May 23, 2023

Guardianship in the United States

Improvements Needed

Activity in the 118th Congress on guardianship reform indicates there is ongoing interest in systemic improvements.

Activity in the 118th Congress on guardianship reform indicates there is ongoing interest in systemic improvements.

The American Bar Association has been advocating for changes to the guardianship system in the United States for many years.

Recently we held several discussions with Congressional staff to lend our support to legislative reform efforts, including the establishment of a Guardianship Court Improvement Program based on the successful program already in place for children. Such programs are aimed at bringing all stakeholders to the table to help states assess and address the weaknesses and failures in how the rights of persons before the court are protected. Establishing a program in the guardianship area would provide special training, resources, and technical assistance to courts on how best to handle these situations.

Activity in the 118th Congress on guardianship reform indicates there is ongoing interest in systemic improvements. For example, the recently introduced Guardianship Bill of Rights Act is designed to reduce the number of individuals who are placed under guardianship and to establish federal guidelines for the appointment and management of guardianships. The ABA supports this approach, as it recognizes the potential for abuse and exploitation in the current system.

Guardianship is the legal process by which a court appoints someone to be responsible for the financial or personal needs of another person, effectively restricting that person’s ability to make decisions for themselves. Guardianship should be a last resort, not the first option, when someone can’t meet their basic needs because of impaired decision-making ability, and individuals should only be placed under guardianship when it is absolutely necessary. This principle is reflected in the proposed legislation, which would require courts to explore less restrictive options before appointing a guardian.

Another key aspect of the proposed legislation is its focus on due process protections for individuals facing guardianship proceedings. The ABA supports the establishment of national standards for due process in guardianship cases, which would ensure that individuals have access to legal representation and other essential rights throughout the guardianship process.

Individuals subject to guardianship action deserve equal justice under the law and the due process protections afforded to anyone facing a deprivation of liberty or property – including the ability to appeal decisions and with support to make their own decisions about how to live their life or use their personal resources. The Guardianship Bill of Rights Act would help to ensure that individuals facing guardianship are treated fairly, have their voices heard, and have their rights protected.

The ABA strongly supports guardianship reform, especially a Court Improvement Program. The Guardianship Bill of Rights Act represents an important step forward in protecting the rights of vulnerable individuals who are subject to guardianship. However, a Court Improvement Program would do even more to enhance guardianship improvement efforts. We urge Congress to include a Guardianship Court Improvement Program in the Guardianship Bill of Rights, Elder Justice Act, or any other reform efforts to safeguard the rights and dignity of those most vulnerable among us.

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