August 01, 2016 Feature

Guardianships, Civil Liberties, and the Role of Lawyers

Phoebe Ball

Guardianship has been around for a very long time, with scholars tracing the origins of this legal arrangement to Greek and Roman times. Under the doctrine of parens patriae, states have the authority to impose a guardian on a person deemed incapacitated and unable to make decisions, care for him- or herself, or manage his or her property. Although the desire to protect our most vulnerable citizens is laudable, and parens patriae may make one think of a kindly father figure, there is a long history of this doctrine being used to control and segregate people with disabilities in very harmful ways. For example, the doctrine of parens patriae was invoked to justify the enforcement of eugenics policies that deprived people with disabilities (or perceived disabilities rooted in racial and gender bias) of their fundamental right to choose whether or not to become parents and to lock them in institutions that notoriously became the overcrowded “snake pits” condemned by Robert Kennedy in 1965 (ncd.gov/newsroom/05042015). In the past few decades, the deinstitutionalization movement has enjoyed some success in closing many of the large, state-run institutions and ensuring that individuals faced with involuntary commitment to a facility receive due process. However, many still face guardianship proceedings without a legal advocate willing to argue against the use of guardianship for a client with disabilities. Not only does this lead to the imposition or maintenance of unjust and unnecessary guardianships that limit individuals’ civil liberties, it subverts the cause of justice.

Deinstitutionalization and Guardianship Reform

Early advocates for deinstitutionalization based their arguments on due process, arguing that prior to removing someone’s liberty through the invocation of parens patriae, minimal due process requirements must be met. These arguments won out in O’Connor v. Donaldson, 422 U.S. 563, 564 (1975): “[A] State cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” Now, not only must the state prove that individuals are a danger to themselves or others before confining them, but an individual facing confinement owing to civil commitment has a right to receive timely notice, the right against self-incrimination, the right to confront witnesses, and the right to counsel.

In 1975 this newfound skepticism of allowing courts to invoke parens patriae to confine an individual merely upon a finding of a diagnosis by a psychiatrist also led to reforms in guardianship law. A series of Associated Press articles in 1987 uncovered stories of abuse and neglect and described guardianship as a “dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft, and neglect” (Fred Bayles and Scott McCartney, “Declared ‘Legally Dead’ by a Troubled System,” AP Special Report: Guardians of the Elderly, An Ailing System, September 20, 1987). In remarks opening a congressional hearing on guardianship in 1987, House Select Committee on Aging Chairman Claude Pepper noted:

The typical ward has fewer rights than the typical convicted felon. . . . By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die. It is, in one short sentence, the most punitive civil penalty that can be levied against an American citizen. (H.R. Rep. No. 100-641, at 1 (1987))

Due Process and the Right to Counsel

This growing understanding that guardianship is a serious intrusion into individual civil rights led most states to institute guardianship reforms that guaranteed individuals facing guardianship more robust due process rights similar to those guaranteed to individuals who faced civil commitment, including notice, representation by counsel, the right to be present at hearings/proceedings, and the ability to compel and examine or cross-examine witnesses and present evidence. Nevertheless, evidence suggests that with respect both to commitment and guardianship, “the rights-based vision had succeeded in changing the language of state statutes but had failed to change the law on the ground. . .” (Cynthia V. Ward, “Mental Illness and Danger to Self,” 3 Mental Health Law & Policy Journal 265 (2014); tinyurl.com/zaqn9hs).

As recently noted by the American Bar Association Commission on Law and Aging, “[p]erhaps the most basic procedural right of respondents in guardianship proceedings is right to counsel” (tinyurl.com/8v3pnm9). The commission also noted that, “[b]oth the Uniform Guardianship and Protective Proceedings Act and the National Probate Court Standards provide for appointment of counsel.”

If the goal of representation is to ensure that an individual facing a deprivation of liberty receives due process, it only makes sense to assign to the attorney the traditional role of “zealous advocate.” In fact, National Probate Court Standard 3.3.5(B) states: “The role of counsel should be that of an advocate for the respondent.” However, in practice, the attorney for the alleged incapacitated person (or for the ward in cases where the lawyer has been appointed to help an individual already under guardianship petition the court for restoration of rights) may or may not be a zealous advocate for the rights of the individual. Although more than half the states require the appointment of counsel for the alleged incapacitated person, the role of the attorney is not always clear. In some states, the role of the attorney is unclear; in others, the attorney may be assigned a role more akin to guardian ad litem. Finally, even in jurisdictions where it is fairly clear from statute or case law that the attorney’s role in the due process afforded to individuals who are faced with guardianship is to advocate for that individual’s desired outcome, attorneys may feel that they should act in the client’s “best interest” as understood by the lawyer.

This can be very problematic. For example, in Florida, where I have extensive professional experience with guardianships, it’s fairly clear that the role of the attorney for the alleged incapacitated person is to advocate for the client’s desired outcome, and in fact a “guardian ad litem” can only be appointed for an individual who has already been adjudicated incapacitated, has a developmental disability, or is under the age of majority (In re Amendments to the Fla. Probate Rules, 986 So. 2d 576, 588 (2008)).

In one case my client—we’ll call her Darlene—was seeking the dismissal of a guardianship she had vociferously opposed from the beginning. Darlene had a long history of depression and was on Social Security disability, she had moved back in with her parents in her 40s, and a relative filed for guardianship after the parents died one soon after the other. When she called me, Darlene had been under the guardianship of a professional guardian for several years and was miserable in the group home where she had been placed. Despite having been deemed “incapacitated,” Darlene seemed bright, oriented, and organized, and she had an incredible memory and took copious notes about her daily interactions. After I helped her file a “suggestion of capacity,” I discovered in the court file a document titled, “Statement of Guardian Ad Litem.” It was written to the court by her then-attorney and described his first and only meeting with her prior to the hearing. The document details their conversation, as well as Darlene’s tearful and sad demeanor and the messy condition of her house. While the facts described in the document may be true, it’s difficult to imagine any other context wherein it would be considered acceptable for an attorney to unilaterally reveal such details to the court. Incidentally, Darlene’s rights were restored, but the majority of her meager life savings paid for the services of the guardian and the attorneys involved in the case besides myself. (It should be noted that I was an attorney for an organization that does not charge its clients, so Darlene did not receive a bill for my representation of her.)

Legislative Reform

At the same time that greater due process protections were being injected into the guardianship system, major federal legislative changes were taking place in the broader disability community as well. Between 1973 and 1990, Congress passed legislation that prevented discrimination in programs receiving federal funding (see Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 355, 394; codified as amended 29 U.S.C. § 794(a) (2012)), ensured a free and appropriate public education for children with disabilities (see Education for All Handicapped Children Act of 1975. Pub. L. No. 94-142, 89 Stat. 773, 775; codified as amended 20 U.S.C. §§1400–1482 (2012); amended and renamed the Individuals with Disabilities Education Act in 1990 (IDEA)), and finally, in 1990, provided people with disabilities access to employment and public and commercial spaces that would have been unheard of only decades before (see Americans with Disabilities Act, Pub. L. No. 101-336 42 U.S.C. § 12101 (2015)). But it was the Supreme Court’s decision in Olmstead v. L.C., ex rel. Zimring, 527 U.S. 581 (1999), interpreting the Americans with Disabilities Act (ADA) to require states to provide services in the least restrictive environment, that truly established a new paradigm in the lives of people with the most significant disabilities. Olmstead involved two women who had intellectual and psychiatric disabilities who had been determined appropriate candidates for community placement but were nonetheless confined to state institutions in Georgia. The Supreme Court decided that “unjustified institutional isolation of persons with disabilities is a form of discrimination . . .” and therefore states are generally required to provide services in the least restrictive environment that will meet the individual’s needs. This “integration mandate” has ramifications for guardianship law as well.

Even prior to the decision in Olmstead, the Uniform Guardianship and Protective Proceedings Act (UGPPA) advised the court to appoint a guardian only if there is clear and convincing evidence that the respondent is incapacitated and his or her needs cannot be met by less restrictive means. Additionally, under the National Probate Court Standards, limited guardianships are preferred that are tailored to meet the person’s needs without unnecessarily removing rights that they can still exercise (Standard 3.3.10 (2013)). Finally, some legal scholars think that there is an argument that guardianships may directly violate the ADA and the Olmstead decision. (See Leslie Salzman, “Rethinking Guardianship (Again): Substituted Decision Making As a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act,” 81 U. Colo. L. Rev. 157, 165 (2010).)

States are taking their cues from these national trends, and their guardianship statutes and case law usually include a requirement that guardianship is only appropriate if there is no less restrictive alternative, and, “[v]irtually all state guardianship codes now include language allowing or encouraging the court to limit the scope of the guardianship order to areas in which the ward lacks decisional capacity. . .” (Pamela B. Teaster, Erica F. Wood, Susan A. Lawrence and Winsor C. Schmidt, “Wards of the State: A National Study of Public Guardianship,” 37 Stetson L. Rev. 193, 212 (2007)). Unfortunately, as with the due process requirements discussed earlier, owing to inertia and lack of awareness of alternatives on the part of individuals in the legal system, this requirement has been slow to impact how courts approach guardianship. Although there is a lack of national data on guardianship, the use of guardianship seems to be on the rise, and I would suggest that this is strongly correlated with the trend away from institutionalization and the increased barriers to involuntary commitment.

Your Role As an Attorney

Martin Luther King Jr. said, “The arc of the moral universe is long, but it bends towards justice.” As lawyers, we have a responsibility to do more than wait for the moral universe to bend, we must push for justice at every opportunity. Being appointed by the court to represent allegedly incapacitated persons in a guardianship proceeding or being asked by persons under guardianship for assistance with having their rights restored presents an opportunity to work for freedom for your clients and to make sure that, regardless of the outcome, they know they’ve had their day in court. It is an opportunity to help the moral universe bend toward justice. As someone who has walked into a courtroom with a client without the right to contract, make decisions about her medical care, get married, or decide where to live; and walked out with a client whose rights had been restored, I can say that is a powerful feeling—and as close to fulfilling the vision I had of myself as a lawyer when I started law school as anything I’ve ever done, or likely will do, in my career.

In order to take up this challenge, you will need to avail yourself of a variety of emerging resources, including research on supported decision making as an alternative to guardianship. The Quality Trust for Individuals with Disabilities has a national training, technical assistance, and resource center funded by the Administration on Intellectual and Developmental Disabilities that has lots of helpful information on supported decision making (tinyurl.com/zfznmu5), and they are also funding demonstration projects at the state level. The ABA Commission on Law and Aging (tinyurl.com/83vcexc) has also done some groundbreaking work in this area, and their resources may help you advocate for your client. There is no road map that will guarantee that you will be able to help your client avoid an unnecessary guardianship, just as there is no road map for representing any individual client. Guardianships tend to emerge from difficult situations with few easy solutions. But your client who is facing a loss of rights in guardianship deserves your time, energy, and creativity as a zealous advocate.

Phoebe Ball

Phoebe Ball is legislative affairs specialist for the National Council on Disability.