The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 42, Issue 1.)
On August 3, the American Bar Association continued its long-standing commitment to advancing adult guardianship reform and adopted a resolution urging Congress to invest in a Guardianship Court Improvement Program. The resolution was co-sponsored by the ABA Commission on Law and Aging, Senior Lawyers Division, Section of Real Property, Trust and Estates Law, and Commission on Disability Rights. Now the work begins, as the ABA, along with states, advocates to secure funding for this important program.
RESOLVED, That the American Bar Association urges Congress to create and fund a Guardianship Court Improvement Program for adult guardianship (following the model of the State Court Improvement Program for child welfare agencies created in 1993) to support state court efforts to improve the legal process in the adult guardianship system, improve outcomes for adults subject to or potentially subject to guardianship, increase the use of less restrictive options than guardianship, and enhance collaboration among courts, the legal system, and the aging and disability networks.
Approximately one to three million people in the United States have a court appointed guardian. This number will increase as the population of individuals ages 65 and over grows. Adult guardianship is a drastic state intervention, when a court finds an individual lacks capacity to make his or her own decisions and appoints a guardian to make personal and/or property decisions on behalf of the individual. Guardianship is in many ways a “civil death,” removing fundamental rights such as voting and marriage.
In August, the ABA Commission on Law and Aging, with cosponsors Senior Lawyers Division, Section of Real Property, Trust, and Estate Law, and Commission on Disability Rights, submitted a resolution to the ABA House of Delegates in support of a Guardianship Court Improvement Program, a groundbreaking initiative to provide federally funded resources to state courts that administer adult guardianships and improve the lives of millions of individuals.
The concept of a Guardianship Court Improvement Program for adults is based on the State Court Improvement Program (CIP) for child welfare agencies. In 1993, at the urging of the ABA Center on Children and the Law and other child welfare advocates, Congress authorized funding for a State Court Improvement Program to provide grants to state courts to assess areas of need and improve child welfare outcomes with state specific programs. For the last several years, Congress has funded a total of $30 million annually for distribution among all state courts, Puerto Rico, and tribal courts.
State courts bear total fiscal responsibility for guardianship, but often lack the necessary resources to protect the individual rights and safety of the individuals who come before them in guardianship cases. Yet these individuals, who are elderly, have a disability, or due to other circumstances allegedly lack the capacity to make their own decisions, may be among the least prepared litigants to navigate the judicial system.
While most guardians, who may be professionals or family members, make every effort to fulfill their court ordered duties, every year media accounts reveal both large scale systemic abuses and individual cases of abuse and neglect. Major areas in need of reform include:
- Lack of data: While some states collect data, without federal funding or support there is no means for collecting national data on the total number of adults under guardianship. As the National Council on Disability noted in a seminal report, “The lack of data on who is under guardianship or what happens to adults under guardians is a constant source of frustration for anyone attempting to understand guardianship, much less those urging policymakers that there is an immediate need for resources to address problems arising from it.”
- Unnecessary and overly broad guardianships: When less restrictive options are not available, courts should strive to limit a guardian’s authority to the areas in which an individual needs decision-making support. Less restrictive options include powers of attorney, trusts, and advance. In a paradigm shift from more traditional delegations of authority to identifying and providing the support an individual needs to make his or her own decisions, advocates and interest groups, as well as the ABA, recognize the concept of supported decision-making as a key alternative to guardianship.
- Guardian abuse: While most guardians are trustworthy fiduciaries, some use their authority to take advantage via financial exploitation, physical, emotional, or psychological abuse, and neglect of the person they are appointed to serve. Most courts do not have effective monitoring programs that would prevent, detect, and address guardian abuse.
The Commission on Law and Aging has played a major role in the national discussion on guardianship reform, exploring consistent recommendations for the formation of state court-stakeholder partnerships to address statewide issues. In 2016, the Administration for Community Living, U.S. Department of Health and Human services awarded the Commission a two year grant to expand WINGS (Working Interdisciplinary Networks of Guardianship Stakeholders). There are currently 25 WINGS or similar groups in states across the nation, working on innovative approaches to state guardianship issues. State funding for each individual WINGS is uncertain. A federally funded Guardianship Court Improvement Program could provide stability and support for these stakeholder groups to continue their innovative approaches to guardianship reform.
In addition to building upon WINGS, federally funded technical assistance would provide state courts the opportunity to consult with nationally renowned experts and each other. Funding and technical assistance could support courts in many ways, including:
· Directing courts to conduct a baseline self-assessment to determine priority guardianship reform areas for the state.
· Providing funding and expertise to courts in data sharing, collection, and analysis.
· Providing funding and technical assistance to support courts in strengthening the use of less restrictive options than guardianship, including supported decision-making.
· Supporting courts in developing a strategic plan and establish measures to evaluate the effect of their efforts, including a Continuous Quality Improvement (CQI) process to monitor and report progress.
· Creating a national court capacity-building center.
· Providing expert training for state guardianship stakeholders including judges, court staff, lawyers, adult protective services, and social services agencies.
With this resolution in support of the Guardianship Court Improvement Program, the ABA demonstrates its commitment to guardianship reform and the dignity and self-determination of millions of individuals.
For more information, please contact Dari Pogach, Senior Attorney, at dari.pogach@americanbar.org.