November 11, 2020

Voluntary Guardianships: A Primer on States’ Guidance

The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 42, Issue 2.

When we think of a guardianship, this is what many of us typically envision: A third party, such as a sibling or trusted relative, recognizes that a loved one is unable to care for himself or make decisions and seeks a court appointment of a guardian without the person’s consent. In a voluntary guardianship, by contrast, an individual may petition for or consent to a court-appointed guardian. A state-by-state survey of voluntary guardianship laws is now available on the Commission on Law and Aging’s website.[1]

 Voluntary guardianships raise several interesting questions about their meaning and purpose because individuals are requesting or consenting to the judicial removal of their legal rights. There are several pathways to voluntary guardianship. State statutory provisions vary regarding appointment and termination of such guardianships, which can create ambiguity over whether the statutory requirements of involuntary guardianship apply to voluntary guardianships. In some states, the guardianship statute includes a section defining and providing specific procedures for appointment and termination of a voluntary guardianship. Other guardianship statutes include the person as a party with standing to petition for guardianship of himself or herself.

Finally, once a petition is filed, an individual may consent to the appointment of a guardian. Some state guardianship statutes explicitly provide for consent while others are silent. Even when a state statute lacks any statutory language regarding voluntary or consent guardianships, in practice individuals may still consent to the appointment of a guardian.

I.              States That Have Voluntary Guardianship-Specific Statutes

Five states—Florida,[2] Iowa,[3] Kentucky,[4] Vermont,[5] and Wyoming[6]—have enacted voluntary guardianship statutes. Generally, an individual must meet certain requirements to qualify for a voluntary guardianship, including:

·         A minimum age

·         He or she must understand, as determined by the court, the nature of the guardianship

·         Or the court must determine that the guardianship is in the individual’s best interest

For example, in Vermont, an individual may enter a voluntary guardianship if she or he is at least age 18; understands the nature, extent, consequences, and termination procedures of the guardianship; and the court determines that the individual is uncoerced. In Wyoming, an individual as young as 14 may enter into a voluntary guardianship so long as the court also determines that a guardianship is in his or her best interest.

Iowa and Florida do not specify a minimum age requirement for voluntary guardianship. Iowa’s statute only requires that the court determine a guardianship is in the individual’s best interest. In Florida, the petition must include a certification from a licensed physician stating that the individual understands the nature of the guardianship, and the court must find that the individual is incapable of care, custody, and management of his or her estate due to age or physical infirmity.

“Kentucky’s voluntary guardianship statute takes a unique approach in that it creates a contingency: An individual must specify an event, mental condition, or physical condition in his or her petition for voluntary guardianship. Only if that event occurs or the individual reaches the specified mental or physical state may the court appoint a voluntary guardian.”

II.            Guardianship Statutes that Include the Person as a Party Who May Petition for Guardianship

Unlike the states in Section I, most states have not created voluntary guardianship-specific statutes. Some states list the person allegedly in need of a guardian as a party with standing to petition for guardianship. [7] The language in these state statutes is similar to the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), which provides that “[a] person interested in an adult’s welfare, including the adult for whom the order is sought, may petition for appointment of a guardian for the adult.”[8] In these states, if an individual petitions for a voluntary guardianship, courts follow the same standards as they would for appointing an involuntary guardian.

UGCOPAA advises courts to scrutinize voluntary petitions to confirm that they are truly voluntary and that the individual fully understands the nature and consequences of entering into a guardianship.[9] Of note, UGCOPAA does not require a finding of incapacity in guardianship proceedings.[10] Rather than determining capacity, the court must find that the individual is “unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services.”[11] Moreover, UGCOPAA  notes that “where an adult seeks to obtain assistance, it is preferable for the adult to execute a durable power of attorney, engage in supported decision making, or both.”[12]

III.           Terminating a Voluntary Guardianship

Some state statutes clearly lay out the process by which an individual under voluntary guardianship can terminate the guardianship. For example, in Florida, the individual files a notice with the court that the voluntary guardianship is terminated and serves notice on all interested persons.[13] Similarly, in Vermont, the individual files a motion to revoke the guardianship. Unless the guardian files a motion for involuntary guardianship within 14 days from the date of the notice, the court will revoke the guardianship.[14]

Other state statutes do not provide directions for terminating voluntary guardianships. In Banks v. Richard A.,[15] a New York court addressed the lack of specificity in New York’s Mental Hygiene Law regarding the legal standard for terminating a voluntary guardianship.

In Banks, Mr. A broke his neck and had to now use a wheelchair. Due to his physical limitations, Mr. A could not independently manage his rent payments. The City Department of Social Services brought a petition for guardianship, and Mr. A consented to the appointment of a professional guardian organization.[16] The court found that Mr. A had certain functional limitations, that he understood those limitations, and that those limitations had the potential to cause him harm. Within a year, Mr. A’s physical condition greatly improved and he sought to withdraw his consent and terminate the guardianship. The guardian objected to the termination, arguing that the court should follow the analysis required for termination of a non-consent guardian under section 81.36 of New York’s mental hygiene law and determine whether Mr. A was incapacitated.[17]

The court held that section 81.36 did not apply to Mr. A, noting, “the possible inartful drafting of Article 81 cannot be the basis for continuing a guardianship predicated on consent when the person subsequently withdraws that consent.”[18] The court further explained that when a person under voluntary guardianship withdraws consent to the guardianship, the guardianship ends. If a party opposes the termination, that party must file a new petition for an involuntary guardianship.

While the court rejected the guardian’s argument, the statute would benefit from clearer provisions on termination of voluntary guardianships. Notably, Article 81 of New York’s Mental Hygiene Law references “incapacitated person” numerous other times. If an individual seeking to terminate a consent guardianship is not subject to the same termination process that the law specifies for an incapacitated person, do other provisions that enumerate the rights of a person with a guardian but only refer to the “incapacitated person” apply? For example, does the requirement that a guardian afford the “incapacitated person” the greatest amount of independence appropriate in the circumstances apply to individuals who consented to guardianship?[19]

Banks demonstrates some of the issues that can arise when a state’s guardianship statute allows for voluntary guardianship but does not delineate a specific process for terminating the voluntary guardianship. To avoid these issues, it would be helpful if state guardianship statutes included a distinct provision for terminating voluntary guardianships.

Conclusion

Unlike involuntary guardianships, voluntary guardianships involve a consensual relinquishing of one’s legal rights for a period of time. While some states have enacted voluntary guardianship-specific statutes to account for this difference, most have not. Given the legal issues that can arise when a statute does not distinguish between involuntary and voluntary guardianship proceedings, it may be worthwhile for remaining state legislatures to clarify whether the statutory language applies to both voluntary and involuntary guardianships, or whether creating separate statutes devoted specifically to voluntary guardianships is in order.

[1] See ABA chart on voluntary guardianship:.

https://www.americanbar.org/content/dam/aba/administrative/law_aging/2020-vol-guard-stats-tbl.pdf

[2] Fla. Stat. Ann. § 744.341.

[3] Iowa Code Ann. § 633.557 (effective to December 31, 2019).

[4] Ky. Rev. Stat. Ann. § 387.330(1).

[5] Vt. Stat. Ann. Tit. 14 § 2671.

[6] Wyo. Stat. Ann. § 3-2-105.

[7] E.g., Alabama, Alaska, Arizona, Colorado, District of Columbia, Georgia, Idaho, Massachusetts, Maine, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New York, South Dakota, Utah, West Virginia, and the Virgin Islands.

[8] Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act § 302(a) (2017) (emphasis added). UGCOPAA was enacted in 2017 and has been adopted by Maine and Washington.

[9] Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act § 302 cmt. (2017). Vermont’s voluntary guardianship statute contains all of these suggestions. See supra note 4.

[10] See Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act § 301(a) (2017).

[11] See Me. Rev. Stat. Ann. Tit. 18-C § 5-301 (In Maine, a court must also find that a guardianship is necessary to enable the individual “to meet essential requirements for physical health, safety, or self-care.”); Wash. Rev. Code Ann. § 11.130.265 (effective Jan. 1, 2021).

[12] Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act § 302 cmt. (2017).

[13] Fla. Stat. Ann. § 744.341(5).

[14] Vt. Stat. Ann. Tit. 14 § 2671(h).

[15] 100 N.Y.S.3d 818 (N.Y. Sup. Ct. Apr. 26, 2019).

[16] See N.Y. Mental Hyg. Law § 81.02.

[17] See N.Y. Mental Hyg. Law § 81.36.

[18] Banks, 100 N.Y.S.3d at 822.

[19] See N.Y. Mental Hyg. Law § 81.20(a)(6)(i).

Anne Moody

Student

ABA Commission on Law and Aging intern and third year Georgetown Law School student.

Reprint Requests

All ABA content is copyrighted and may be reprinted and/or reproduced by permission only. In some cases, a fee may be charged. To protect the integrity of our authors’ work, we require that articles be reprinted unedited in their entirety. To request permission to reprint or reproduce any ABA content, go to the online reprint/reproduction request form.