The PDF in which this article appears can be found in Bifocal Vol. 43 Issue 4.
The 2021 social media frenzy concerning the high-profile guardianship and conservatorship cases involving Britney Spears, artist Peter Max, and "America's Top 40" host Casey Kasem and movies such as I Care a Lot, helped to significantly bolster public awareness and discussion about outdated practices in the guardianship system. They’ve also drawn attention to a dangerously burdened system that can put the lives in the hands of others with little or no evidence of necessity and then fails to guard against abuse, theft, and neglect.
For the last 30 years, legislative changes have sought to bolster safeguards in proceedings for the appointment of a guardian or conservator. Many states continue to make procedural “tweaks” to clarify requirements, promote effective administration, or address inconsistencies.
The hallmark adult guardianship event of 2021 occurred in May when the National Guardianship Network brought together 125 advocates, family guardians, judges, lawyers, scholars, and other stakeholders for the Fourth National Guardianship Summit, resulting in 22 Recommendations to improve and reform the adult guardianship system in the United States. Those Recommendations represent stakeholder’s current beliefs, values, and national trends in desired guardianship reform. Several of the Recommendations addressed multiple and inter-related issues. Consistent with later review of case law and legislation trends, the Recommendations included explicit direction in the following areas:
- Rights of Individual Subject to Guardianship and Less Restrictive Alternatives (22 Recommendations)
- Guardian/Conservator Responsibilities, Abuse of Power, and Ethics Violations (12 Recommendations)
- Court Administration, Data Collection, and Oversight (16 Recommendations)
While the timing was coincidental, the culmination of these advocacy efforts, the #freebrittney, #freepetermax, and Casey Kasem family's "fight for dignity” all bolstered civil rights advocacy and calls to action for legislators at both the state and federal level in the United States, as well as judges, attorneys, and other guardianship court stakeholders. 2021 brought about guardianship reform through nearly 40 guardianship legislative enactments from 16 states.
2021 Trends in Guardianship Case Law and Legislation
A comprehensive analysis of key events, case law, and legislation in 2021, indicate a trend toward legislation and advocacy for increased rights of individuals subject to guardianship, less restrictive alternatives – specifically supported decision-making, increased demand for guardianship data collection, court oversight, guardian/conservator accountability, and consistent nationwide court reform.
In October 2021, a robust case law review was completed and presented at the National Guardianship Association’s 2021 Annual Conference by attorneys and guardianship experts with more than 120 combined years of experience. The review summarized the major reported court decisions and legislation impacting guardianship during the past year. It contained 200 guardianship cases and over 24 guardianship bills. While not a complete listing of all case law, of particular note were the number of significant cases presented demonstrating alignment with the values and need for reform inherent in the Summit Recommendations. These included:
- Rights of Individual Subject to Guardianship and Less Restrictive Alternatives
- Guardian/Conservator Responsibilities, Abuse of Power, and Ethics Violations
- Court Administration, Data Collection, and Oversight
At the end of 2021, the ABA Commission on Law and Aging compiled a list of 37 guardianship legislative enactments from 16 states in its Guardianship Reform: 2021 Adult Guardianship Legislation Summary, which also provided consistent indicators of current trends and where stakeholders were prioritizing guardianship reform. These included:
- Rights of Individual Subject to Guardianship and Less Restrictive Alternatives
- Guardian/Conservator Responsibilities, Abuse of Power, and Ethics Violations
- Court Administration, Data Collection, and Oversight
- COVID-19 Related Legislation
The cumulative analysis of the above indicates a trend toward legislation and advocacy for increased rights of individuals subject to guardianship, improved court oversight and accountability for guardians, and less restrictive alternatives – specifically supported decision-making.
Challenges to Guardianship Legislation and Reform
A significant challenge to guardianship reform continues to be that there are no federal standards, oversight, funding, or technical assistance to provide the improved data collection or develop consistent, nationwide best practices and training. To date, there has been no federal policy promoting adult guardianship reform. Guardianship remains under the purview of state law and as such, practices, procedures, and rule of law varies widely from state to state.
One of the most noteworthy topics of discussion in 2021 was around the lack of guardianship data. According to the National Council on Disability, in 2018 it was estimated that there were about 1.3 million guardianship or conservatorship cases active at any given time in the United States, managing assets that total at least $50 billion for people whose rights have essentially been stripped from them. Those figures, however, were based on informed speculation.
On the forefront of the guardianship legislation reform movement, comes the urging of implementation of a Guardianship Court Improvement Program (GCIP) to provide funding and technical assistance to state courts for data collection and analysis, identifying areas of priority for each state, and making significant, consistent improvements to the legal process in the adult guardianship system across the nation.
In sum, 2021 produced approximately 37 guardianship legislation enactments from 16 states. In the last 10 years, states have enacted nearly 400 adult guardianship bills ranging from a complete revamp of code provisions to minor changes in procedure. Many statutory changes have advanced guardianship reform: safeguarding rights, addressing abuse, and promoting less restrictive options. While guardianship laws have improved, implementation in practice continues to be inconsistent or lacking. Guardianship stakeholders have fought hard for reform in the guardianship and conservatorship systems, but most advocates believe it is happening much too slowly. Relatively few legislators at both the state and federal level have familiarity with the guardianship process and its removal of fundamental rights. Engaging legislators in understanding the need for reform is an ongoing and essential process. Reform efforts have proved to be challenging. The real progress in guardianship reform lies in turning good law into good practice.