The PDF in which this article appears can be dowloaded here: Bifocal Vol. 43 Issue 1.
The Fourth National Guardianship Summit: Maximizing Autonomy and Ensuring Accountability, was held on May 10-14, 2021, with 125 representatives from diverse organizations gathering virtually. The Summit was organized by the National Guardianship Network and hosted by Syracuse University School of Law. Commission on Law and Aging (COLA) staff and COLA volunteers were critical members of the committee that planned and facilitated the Summit. The Summit resulted in 22 consensus recommendations focusing on alternatives to guardianship, improving guardianship laws, and improving practice of guardianship.
Since 1988 there have been four national conferences on guardianship reform, and three Uniform Laws drafted on adult guardianship. There is a national movement encouraging alternatives to guardianship, including the use of Supported Decision Making, as outlined in the groundbreaking PRACTICAL Tool developed by the ABA Commission on Law and Aging. Developments over the past decade set the stage for the fourth Summit.
The Summit Process
The Summit is a unique interactive deliberative process that has been developed over the past 35 years. Participation is by invitation. Participants, including observers were selected and invited by members of the National Guardianship Network and sponsoring organizations. Observers included advocacy groups. self-advocates and family members, and experts from academe including international observers. The participants were carefully placed into work groups matching their areas of expertise or interest and assuring diversity of points of view in each work group. The groups are intentionally kept small, so every voice could be heard. Each work group had a trained facilitator, reporter, and law student recorders. Because of the virtual format, Syracuse provided additional technical support.
The Summit was broken into six working groups, with each group assigned one topic to do a deep dive into the issue. The work group topics were: supporting decision-making; limited guardianship; protective arrangements and diverting guardianship pipelines; rethinking monitoring and addressing abuse by guardians; fiduciary responsibilities and tensions; and developing guardianship court improvement programs.
Experts provided law review articles on each issue area, and a discussion or issue brief was created for each work group. The work groups spent three afternoons brainstorming the challenges in the assigned issue area, discussed potential solutions and drafting recommendations based on the challenges that were identified and potential solutions. The draft proposals from the working groups were reviewed and voted on by all Summit delegates, resulting in 22 final recommendations.
The Issue Areas
About a year before the Summit, the planning group debated and agreed on a list of topics or issues that appeared to be most timely to focus on.
The topics selected were:
- Supported Decision Making. Supported decision making is a person centered and person driven decision-making model where the person selects and empowers persons to inform and assist the person with decision making.
- Protective Arrangements and Pipelines. Protective arrangements are described in the latest Uniform Guardianship, Conservatorship and other Protective Arrangements Act, as limited court orders, as an alternative to guardianship or conservatorship that authorize legal action on a limited basis for a person who appears to need help providing consent, but without a finding of legal incapacity. Guardianship pipelines are policies or practices that routinely advise seeking guardianship without first looking at need or alternatives. The most common example is parents being routinely advised to seek guardianship of a child with disabilities who is turning 18 years of age. Pipelines result in unnecessary and often lifelong restrictions on individual rights, and needless government intervention into the life of the person.
- Monitoring and Abuse of Guardianship by Guardians. With abuse being a hot topic in the news, monitoring and abuse by guardians was a required topic in any conversation about guardianship. All states require some form of reporting by guardians, but the reporting often fails to identify failure to act and bad acts by guardians.
- Fiduciary Responsibilities and Tensions. There is an inherent conflict between the responsibilities of a fiduciary, including a guardian or conservator, and supporting the values and wishes of the person. Training is needed for all involved in fiduciary duties in how to balance the values and wishes of the person in decision making. Abuse by fiduciaries shows a need for training, and regulation of professional fiduciaries. As supported decision making, special needs and other trusts expand, the tensions between competing duties of trustee and guardian are becoming more common. Many of these issues are addressed in the latest revision of the Uniform Guardianship, Conservatorship and other Protective Arrangements Act.
- Court Improvement Programs. Guardianship law is all state law and is all administered by state Courts. The actual practice varies from Court to Court, and in many states’ improvement in practice lags far behind improvement in statutes. States wishing to improve guardianship practice need state leadership, training, and technical assistance. There is a model for meaningful change in the Child Welfare Court Improvement Project, a federal initiative that provides funding for state leadership to develop and implement plans for improving practices based on what is needed in each state. The concept of an Adult Guardianship Court Improvement Program was recommended in the WINGS final report.
Conclusion:
The issue of guardianship reform is much larger than #FreeBritney. Guardianship reform is an ongoing process, and yet abuse of the process of guardianship, and abuse of persons subject to guardianship continues to make the news headlines and garner the attention of law and policymakers. Criminal prosecutions for financial exploitation and abuse by guardians in Nevada, New Mexico, Florida, and other states in recent years, some resulting in decades long prison sentences, are ongoing issues driving demands for reform of guardianship laws and practices.
The goal of the Summit was to develop recommendations for reform and improvement. The recommendations can be found on the Commission on Law and Aging’s webpage.