The PDF in which this article appears can be found in Bifocal Vol. 43 Issue 4.
Traditionally a guardian was appointed to protect a person, a conservator was appointed to protect money and property. Some states and the Uniform Act retain those distinctions, but some states use the terms interchangeably or use entirely different terms to identify a fiduciary appointed by a court to protect the person or property of a person the court has found to be in need of protection. For simplicity this article uses guardianship for all of these.
I get asked, why put effort into fixing guardianship? Why not focus on replacing it?
Even under the most necessary of circumstances, guardianship or conservatorship are a tremendous infringement on the human, Constitutional and legal rights of the person. Any misuse or unnecessary imposition by a guardian or conservator can be seen as abuse. Much of our time is spent educating lawyers and other professionals to do all they can to avoid guardianship. This is an uphill battel at times. We are pushing against 250 years of paternalism and “this is the way we do it’. We urge advocates to examine and consider alternatives and replacements for guardianship. We explain and teach how to leverage supporting the decision making of the person as a tool to avoid restricting, transferring, or taking away the rights of the Person.
We see, hear, and read the horror stories of guardianship being used to abuse the person it is intended to protect. Abuse does not happen in every guardianship, but when it happens the outcomes can be tragic, sometimes fatal. As a civilized society we must take steps to stop the abuse and hold those responsible accountable.
In the long term, reform of guardianship will likely look like repealing and replacing it with supports and limiting interventions to what is essential to protect a person from imminent harm. The German model of “Betreuung” offers a promising model that replaces paternalism with support. The German approach incorporates supported decision making, decision supports, advance planning, default decision makers, and limited protective arrangements as a model for replacement.
So why would we put ongoing efforts into fixing guardianship instead of focusing on replacing it?
The short answer is, we can’t abandon the at least 1.3 million people who are already in the guardianship system. We need to fix the system while trying to replace it, and major parts of that change must come from inside the Courts. While we work on alternatives and replacing guardianship, we need to work within the Courts to protect and improve the lives of the persons already in the system. This is a little like trying to change a tire while driving down the highway, while on the phone ordering a new car to replace the one you are driving. We do this because of the aforementioned 1.3-million people with a guardian, however, as someone reminded me recently, that is the same guess on how many guardianships that we have been hearing for 30 years. The real toll is likely higher.
Fixing guardianship will take time. 50 states, plus the District of Colombia will need to update their laws. That can be done, but even under the best of circumstances, it will not be a fast process.
There is a steep learning curve for many on understanding options and alternatives needed to move from paternalism to independence, empowerment, and support. There is no single concept that covers the wide range of challenges that guardianship seeks to cover, and replacements will take time and work to put in place.
We know very little about the people trapped in guardianships. Undoubtedly, some of the people with a guardian do not need help. For these folks it is matter of giving them back their checkbooks and keys. If they have been deprived of freedom of choice for some time, they may benefit from support during a transition period. Many, if not most of the people with a guardian need some degree of help. They need supports to help them understand and make decisions and choices, in advocating for the choices that they wish to make and accommodations in communication or for a physical disability. But this is far less than what most guardianships impose. Most will do just fine with empowering support. There are also a percentage of people who have a guardian who are totally unable to make or communicate choices and who don’t have in place legal alternatives needed to make essential choices. There are alternatives that could be created, even for those with the most extreme needs, but this will involve other legislative changes and court orders. I hate writing things that say, some people, most people and or some percentage of people, but the bottom line is that in nearly every state there is no reliable data on how many adults have a guardian, what the needs of the person are and how those needs are being met. Part of fixing this is truly understanding the scope of the problem, and the courts hold that data.
In theory, states could simply end all guardianships by statutory fiat. States could simply say, all guardianships end on a given date and final accountings and reports are due soon thereafter. However, simply terminating the guardians of many people who have been in the system without putting in place the supports that they need would be a human tragedy. States need to build the support systems and work within the Courts to transition people out of it to the maximum extent possible. We can’t simply abandon the people in the system while we work on a replacement. We need to fix the system, while at the same time working to replace it.
A possible first step would be for every state to pass the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act.[ii] It contains provisions that assure the voice of the person is heard, that complaints are heard and that alternatives are explored before a Court imposes a guardianship. Article Five of the Act includes limited protective arrangements that provide guidance for crafting limited arrangements that do not involve guardianship and do not invoke a restriction on the persons’ rights.[iii]
The Courts are going to have to play a key role in freeing people from guardianship and restoring rights. While we work on replacing guardianship, we need at the same time to work on fixing the system and eliminating the use of guardianship as the universal answer, so that we can improve the lives of those in it, and help the Courts understand how alternatives can prevent the ongoing expansion and eventually replace this troubled system.
Conclusion
The bottom line is we can’t abandon the million plus people who are trapped in the guardianship system, while we advocate for alternatives and replacements. We need to work on laws, and through the Courts, improve the lives of the people in the system, and restore their rights, while at the same time developing new models that will in the long term replace guardianship as we know it. This isn’t an easy task; that is why we all need to work together.