The PDF in which this article appears can be dowloaded here: Bifocal Vol. 42 Issue 4.
March 11, 2021
Challenges in Guardianship and Guardianship Abuse
by David Godfrey, JD, Senior Attorney, ABA Commission on Law and Aging, Washington, DC
There are challenges, overuse and abuse of adult guardianship or conservatorship, and it is essential that we recognize the scope of the issue, and take action to improve the laws, practice, oversight, and accountability. The first step in change is acknowledging the need. It is time to stand up and say, we can do better, we must do better, we are the agents of change.
There will always be a need to protect persons who are truly unable to make and communicate informed choices from harm. Often this happens informally, with family and friends stepping in. Emerging concepts of decision supports provide systems and practices to empower persons to work with and through chosen supporters to help manage their affairs. Supported decision making is rapidly evolving, but a weakness in any informal system is a lack of recognition by third parties. Our rights to make medical decisions, some personal decisions, and to manage real and personal property (money) require that we knowingly make choices or that someone have legal authority to make choices for the person. The delegation of authority can be accomplished by advance planning. Only about 1/3rd of adults have named a preferred person in writing to make health care decisions. There are no reliable statistics on delegation of authority to make personal and financial decisions, but it has been reported that (about half estates probated have no will or other estate plan in place.)[1] And advance plans sometimes fail because the agents that are named sometimes are unable or decline to act, or even worse the authority that was entrusted to them, is abused.
Most of the time, guardianship or conservatorship accomplishes what it is intended to do. The person to be found “in need of protection,” is truly a person unable to make or communicate decisions to protect themselves and others from harm, the guardians and conservators act to protect the person and to protect the persons rights and engage the person to the maximum extent possible to enhance quality of life and quality of care.
With roots in the common law tradition, guardianship or conservatorship is the legal system of the Courts appointing someone with legal authority to protect the rights of a person with profoundly limited ability to protect themselves – a person who the court finds to be “in need of protection” under the laws of the state. Guardianship should be a legal last resort, not the first or universal intervention when a person needs help. Informal interventions, shaped by the person centered and person driven model of supported decision making can meet the need of protecting most people, most of the time. Only when alternatives have been exhausted, or failed, should guardianship be considered.
Traditionally a guardian was responsible for protecting the person, a conservator was responsible for protecting money and property. By statute, some states use guardian or conservator for both protecting the person and the money and some maintain the distinction between the two.[2] For simplicity this article uses guardianship for all of these court appointed arrangements.
No one can give us a reliable assessment of the scope of the issues with guardianship, because no one knows how many adults have had a guardian appointed. Only a handful of states collect statewide data on adult guardianship. Nearly all data on adult guardianship is held at the local court level with no system available in most states for reporting this information into a statewide database. As a result, no one knows how many adults have had a guardian appointed, the demographics, what determinations the courts made in deciding a guardian was needed, who the guardians are, what reports are being filed, what those reports show, or even how many questions or complaints against guardians have been raised with the courts. Without technical assistance and funding most under resourced courts systems are unable to collect data. The result is we know there are problems, but we have no idea the true scope.
There is a need for training of Judges, lawyers, and court personnel on protecting due process rights in guardianship and conservatorship cases. Guardianship restricts essential legal, constitutional, and human rights, and all too often the cases move through the courts with minimal regard to due process protections. Updating and modernizing statutes brings little change without training and technical assistance for the persons charged with carrying out the laws. Training and technical assistance make a huge difference, and funding is needed to make this happen. This is a major task, as reforms go beyond changes in the law, to culture change in embracing capacity as a human right.
While most guardians do the right things for the right reasons, when guardians commit acts of abuse and exploitation the impact can be tragic and unimaginable.[3] The lack of overall data, and in many cases a lack of oversight and accountability make it impossible to quantify the scope of abuse by guardians. News reports reveal bad actors who maneuver themselves into appointment as guardians to steal money and property and neglect or abuse the persons they are appointed to protect. Those reports often document difficulty in reporting maltreatment by guardians and lack of oversight and accountability which is often the result of under resourced court systems.
All state statutes require some form of reporting by guardians, with the expectation that reviewing the reports will identify abuse, neglect, and exploitation, but under-resourced courts are often unable to carefully monitor and review the reports. Resources are needed by court systems to review reports, monitor and investigate problems that are detected in the reports or contained in complaints to the courts.
Additional training is needed in understanding how to support individuals in decision making, tools for planning for incapacity, and balancing protection and autonomy. This is a major culture change for many professionals, a shift from protecting a person from themselves, to protecting decision making as a human right. All too often guardianship becomes the universal answer when an adult faces struggles with protecting themselves from harm or self-neglect, without exploring alternatives. Funding is needed to promote alternatives; decision supports and make guardianship truly a last resort.
There is a model for changing the system in the Child Welfare Court Improvement Program (CIP.) Passed by Congress in 1993 and funded through the federal budget,[4] the child welfare CIP addressed similar issues in cases involving children, with core funding to state court systems to protect the rights of children and families. The child CIP has three goals: “(1) support state courts to improve the legal process; (2) improve outcomes; and (3) enhance collaboration among courts, and agencies.”[5] The CIP caries out this goal by providing basic funding for leadership in improving the systems, training, and data collection, backed up by technical support, systems and training from national centers of expertise.
The same model, for a Court Improvement Program is needed in adult guardianship. The vision of an adult guardianship CIP would include the following key elements:
- 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.
- Enhancing collaboration between courts and other stakeholder agencies and organizations. [6]
While guardianship law is state law, national leadership and funding are keys to systemic change. This starts with continued with federal leadership, most likely with additional demonstration projects, and Congressional action. This work builds on the success of the Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) that the ABA Commission on Law and Aging has coordinated over the past few years with funding from the Administration for Community Living. WINGS has helped to define the need for improvements in state guardianship systems and practices and the impact of collaboration, leadership, and funding; and prove that changes work to improve systems and outcomes. WINGS also extended the application of the decision support principles developed in recent years. The WINGS experience also highlighted the need for Court leadership, and that basic core funding is essential to Courts being able to provide that leadership.
Conclusion:
The time is now to address the challenges, overuse, and abuses in adult guardianship. Building on the work on decision supports and WINGS demonstration projects, we have the tools to improve oversight and accountability, and to identify and respond to abuse, but resources are needed to make this happen. We owe it to members of our society to do better.
[2] Louisiana uses Interdiction and Curator https://louisianalawhelp.org/resource/what-is-interdiction
4 https://www.americanbar.org/content/dam/aba/directories/policy/annual-2020/105-annual-2020.pdf
[5] 8 https://www.acf.hhs.gov/sites/default/files/cb/pi1605.pdf.
[6] https://www.americanbar.org/content/dam/aba/directories/policy/annual-2020/105-annual-2020.pdf