(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 41, Issue 2.)
Erica Wood, assistant director at the ABA Commission on Law and Aging, will be leaving the ABA at the end of December. She has spent much of her time over the last almost four decades on adult guardianship issues. BIFOCAL interviewed her about her recollections and changes she has observed in the field.
BIFOCAL: What did adult guardianship look like 40 years ago when you came to the ABA?
Wood: In 1980, most state guardianship laws were still pretty archaic, using discriminatory terms and lacking in procedural protections. For instance, many statutes still included the term “advanced age” in defining who needs a guardian – meaning a number of birthdays alone would be enough for a person to lose fundamental rights. Guardianship, once considered a backwater area of probate law, was little understood and was certainly not a hot topic! My interest was piqued in hearing one of our early Commission members, Dean John Regan, talk about the dire need for due process safeguards, which began to be addressed to some extent in the 1982 version of the Uniform Guardianship and Protective Proceedings Act.
BIFOCAL: What early events do you recall that stirred reform?
Wood: A major event that garnered attention and launched the beginnings of reform was the shocking Associated Press report entitled Guardianship of the Elderly: An Ailing System. I remember opening the paper in September 1987 and reading that there were older people across the country who were “declared legally dead by a troubled system.” Following the AP Report, the U.S. House Committee on Aging (which no longer exists) convened a hearing, chaired by Rep. Claude Pepper of Florida, who opened the session by saying: “This hearing illustrates how diligent we must be to protect . . . rights.” He also said, “So these victims of guardianship were just lost people. That is, they were lost in the shuffle? I wonder if they would get me. I am 87.”
The AP report and the House hearing prompted a rush of state guardianship legislation, as well as a steady flow of education and training materials for attorneys, judges, guardians and the public over the next years. The National Guardianship Association was created in 1987.
BIFOCAL: What has helped to drive reform over the past three decades?
Wood: Among other things, there were three broad-based national consensus conferences jumpstarted the guardianship reform movement. The first, in 1988, was held at the prestigious Wingspread conference facility in Racine Wisconsin, whose walls bore a quote by Oliver Wendell Homes: “A mind once stretched by a new experience can never regain its original shape.” Over 30 interdisciplinary stakeholders participated in crafting the landmark “Wingspread” recommendations, some of which eventually found their way into state statutes. I remember a flurry of flip chart activity – and the very civilized bell that called us to break in the lovely garden.
Thirteen years later in 2001, the “Wingspan” conference convened at the Stetson University College of Law in Florida. Its recommendations built on and strengthened the earlier set and in particular urged the development of a uniform act on guardianship cross-state jurisdictional issues, eventually leading to the approval of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act in 2007. I most remember the vociferous arguments about the role of counsel for the respondent in a guardianship proceeding.
After another decade, the University of Utah S. J. Quinney College of Law hosted the 2011 Third National Guardianship Summit. Set against a dramatic red rock background, the Summit crafted standards for guardians that paved the way for the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act and a revised set of NGA Standards of Practice as well as coining the term WINGS for Working Interdisciplinary Networks of Guardianship Stakeholders.
BIFOCAL: What stands out from your 30-plus years of tracking state guardianship legislation?
Wood: The ABA Commission began tracking state adult guardianship legislation in 1988 – before we had access to Westlaw. The updates over the years were printed by Legal Counsel for the Elderly at AARP, and later incorporated into the National Guardianship Association’s annual Legal and Legislative Review. We saw activity in five major areas: procedural protections including the right to and role of counsel; determination of incapacity that emphasized more of a functional approach; limited court orders and requirements for exploring less restrictive options; monitoring and accountability of guardians; and development of public guardianship programs. By and large, the trends in these legislative measures were positive, highlighting rights and accountability, but sometimes there were retreats to overcome.
BIFOCAL: What changes need to be made on the ground in guardianship practices?
Wood: While passing good guardianship legislation is not easy, making sustainable changes in practice is much harder. Practices vary throughout any state, resources are generally insufficient, the cases are complex, staff turnover in courts and agencies is constant, data is almost nonexistent, family guardians get little help, and the political will for change is uneven.
More than 30 years after the 1987 Associated Press report, subsequent media reports of egregious guardianship practices have surfaced in a growing number of states – reports that highlight some of the same insufficiencies as found by the AP. The Government Accountability Office and the U.S. Senate Special Committee on Aging have spotlighted cases of abuse and exploitation by both professional and family guardians. So there is still much to do through a combination of legislation, law enforcement, rules changes, best practice models, education and training, data improvements, media accounts and more. Some states have convened court-stakeholder WINGS to spark and reinforce these actions.
BIFOCAL: As you know, the movement toward supported decision-making is gaining momentum. What has been the impact on guardianship?
Wood: The supported decision-making movement has shaken up the guardianship world in a positive way. It is a big conceptual leap from surrogates such as guardians or agents under powers of attorney making a decision for someone else, to supporters enabling people to make their own decisions with help, or as the Beatles said, “with a little help from my friends.” The idea is not new. But the supported decision-making movement has placed decision-supports and supporters as a central element to examine before a guardianship is ordered, or when a restoration of rights or limited order is considered.
A creative variety of supports and informed supporters can reduce use of overbroad or unnecessary guardianship and build self-determination. That’s why in 2016 the ABA Commission and other ABA entities created the PRACTICAL Tool for lawyers, and in 2017 the ABA passed a resolution urging use of supported decision-making as a less restrictive option to guardianship. Much more discussion is needed about supported decision-making, especially its use by people with dementia – and that’s a good thing.