October 15, 2018

Guardianship and Supported Decision-Making

Erica Wood

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 39, Issue 2.)


In 2017, the ABA Commission on Law and Aging has driven important systemic changes in guardianship and supported decision-making that can improve individual lives.


Whither WINGS – Bringing Guardianship
Stakeholders Together

Despite reforms on paper, guardianship practice throughout the country has remained uneven and in some cases abusive. Problems, often highlighted by the press (as in the October 9, 2017 New Yorker article), may appear intractable.

There are many ways to pursue lasting change — legislation, litigation, judicial rules, training and education, and practitioner ethics and standards. Bolstering these approaches are strategies that pull stakeholders together in ongoing court-community problem-solving forums — Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) — that lay a foundation for continual review and im­provement in on-the-ground practices.


The ABA has helped to support and promote WINGS since 2013. This year, with support from the U.S. Ad­ministration on Community Living (ACL), and in col­laboration with the National Center for State Courts, the Commission funded seven state courts to launch or enhance stakeholder groups, and to provide tools and technical assistance to each. Courts in Alabama, Alaska, Florida, Idaho, Indiana, Oregon, and Utah are working on a remarkable array of objectives — for instance, judicial education protocols, training for guardians ad litem, “mapping” the availability and use of less restrictive options, piloting supported decision-making agreements, and improving court monitoring.


Meanwhile, other states are forging ahead with WINGS as well. Several states that received small in­centive grants from the State Justice Institute in earlier years are continuing with problem-solving networks. And a number of states have convened WINGS or similar problem-solving groups on their own. For de­scriptions of the approximately 25 existing WINGS, see http://ambar.org/wings.


The Commission, with the National Center for State Courts, is in continuing contact with the Social Security Administration, which has designated a regional liaison for each of the state WINGS. These liaisons can help to further coordination between the SSA representative payee program and state courts with guardianship jurisdiction.


Supporting Adults in Decision-Making


The decision-making ability of persons with disabili­ties (including older individuals with dementia) is too often questioned and discounted. Supported decision-making puts an individual with a disability at the center of the decision-making process. The Commis­sion engages with and encourages a growing national conversation about supported decision-making.


New ABA Policy

With the ABA commission on Disability Rights, the Section on Civil Rights and Social Justice, and the Section on Real Property, Trust and Estate Law; the Commission on Law and Aging co-sponsored a Resolution passed by the Association’s House of Delegates in August 2017.


This groundbreaking Resolution recognizes supported decision-making as a less restrictive alternative to guardianship, and urges legislators and the courts to require that it be identified and fully considered before a guardian is appointed. It also urges that decision-making supports be identified and fully considered in termination of guardianship orders and restoration of rights.


Reaching the Legal Community

During 2017, the ABA Commission engaged in mul­tiple activities to raise the awareness of the legal com­munity about supported decision-making.
The Commission produced webinars and other ma­terials for lawyers and continued to disseminate our PRACTICAL Tool for Lawyers: Steps in Supporting Decision- Making.


We sponsored a one-day pre-conference intensive at the October National Aging and Law Conference. We served on the advisory com­mittee for the National Resource Center for Supported Decision- Making.

Restoration of Rights in Adult Guardianship

While each state statutorily provides a process for ending a guardianship order and restoring rights, it appears little known and used. We partnered with the Virginia Tech Center for Gerontology, and, with funding from The Greenwall Foundation and the Borchard Foundation Center on Law and Aging, we looked at what little information existed on restoration in four states, and convened a Roundtable last year. In July 2017, we released the study’s findings and recommendations in a widely circulated report entitled Restoration of Rights in Adult Guardianship: Research & Recommendations.

Training Families and the Public on Decision Support and Guardianship

In 2017, the ABA Commission on Law and Aging joined with the National Center for State Courts (NCSC) and the Washington State Administrative Of­fice of the Courts. Using funds from the Department of Justice, Elder Justice Initiative, we began filling a glar­ing national training gap. With NCSC and its Creative Learning Services in the lead, the project will develop an overarching national online training course for:


1.       Members of the public assisting family mem­bers who need help with decision-making;
2.       People who are considering petitioning for guardianship and may benefit by knowing about less restrictive options; and
3.       Potential or appointed family guardians who need guidance.
This innovative course will use real-life scenarios in plain language to guide understanding of — and choices about — specific situations. Stay tuned!

Highlighting the New Uniform Law

State legislatures grappling with the complexities of guardianship need a model, a beacon to guide them in shaping the best solutions. Over the years, the Uniform Law Commission (ULC) has offered such a model, set out in various versions from 1969 to 1997.

In 2014, the ULC appointed a Drafting Committee to modernize the Act and incorporate recommendations from the 2011 Third National Guardianship Summit. The Committee Chair, Reporter, and several of the Committee’s observer participants had long histories with the Commission, and brought its decades of expe­rience to bear.


In July 2017, the ULC approved the drafting Com­mittee’s new Act, entitled the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act. According to the UCL, the new Act is “a modern guardianship statute that better protects with indi­vidual rights of both minors and adults subject to a guardianship or conservatorship order.”


The Act encourages courts to use the least restrictive means possible and includes a set of optional forms to help courts implement its provisions effectively. The Act is now ready for adoption by state legislatures.


Tracking State Legislation: Be In the Know About State Laws

The Commission has been tracking and monitoring state adult guardianship legislation since 1988. Each year it compiles and posts an annual update of laws passed, explaining their history and importance — and then uses the annual summaries to update its detailed set of state-by-state statutory charts. This year, as of September, we found 46 enactments from 25 states — and the full year summary will be posted soon!

For almost 30 years, The Commission's annual update has been the sole national resource on adult guardianship legislation.

Erica Wood