The full PDF in which this article appears can be found in Bifocal Vol. 43, Issue 3.
Introduction
The Fourth National Guardianship Summit brought together 125 advocates, family guardians, judges, lawyers, scholars, and other stakeholders in May 2021. Over four days, these participants discussed and debated (virtually) the current state of the nation’s guardianship system and developed recommendations for reform. Bifocal Vol 42 Issue 1, gives the background on the previous four national conferences on guardianship reform and explains the issues addressed and the processes of the Fourth National Guardianship Conference. This article goes into further detail about the challenges in guardianship reform and how the recommendations from the summit help to address these challenges. We conclude with suggestions on how senior attorneys can play a key role in the implementation of the summit’s recommendations.
The Summit was sponsored by the National Guardianship Network, composed of 13 leading national organizations dedicated to effective guardianship law and practice and the promotion of less restrictive options. The NGN organizations and additional sponsoring organizations selected 75 of their members as the Summit’s voting delegates. Overall, the NGN planners aimed for a diverse mix of professionals, as well as family members, even including international representatives. The Summit was hosted by the Syracuse University College of Law, and funded by the State Justice Institute and the Borchard Foundation Center on Law and Aging.
Challenge: Protecting and respecting the rights of persons with a guardianship
Just because a person needs a guardian to assist in making decisions doesn’t mean they lose their basic civic and personal rights. A few states have a “bill of rights” laying out what those rights might be, but most states need a clear delineation of what those rights are. The very first Summit recommendation (1.1) fills that void by challenging the National Guardianship Network to develop a nationally recognized statement of rights.
The recommended framework is to delineate those rights which the adult retains, those rights which can be delegated to the guardian if the court specifically finds a need to remove the right, and those personal rights which can be removed, again with specific court ruling, but cannot be delegated. One of those rights that can be removed but not delegated is the right to vote. Obviously, the right to vote can’t be transferred to anyone else. Some states through their constitution or election statute automatically deem those who have been judged incapacitated for any reason to be ineligible to vote. Advocates have long argued that this civic right should only be removed through an individualized judicial determination.
Among those rights which can be delegated to a guardian are consenting to medical treatment, determining where the person will live, managing property and assets, applying for government benefits, and filing or defending lawsuits.
Clearly there are inherent personal rights that all persons have such as the rights to dignity, privacy, confidentiality, free practice of religion, equal treatment under the law, and meaningful participation in decisions made on their behalf. The recommendations call out specific due process rights including the rights to a qualified lawyer at all stages of the guardianship, reasonable notice, impartial capacity assessments by qualified professionals, and ready access to a process for restoration of some or all removed rights.
Challenge: Raising awareness and use of supported decision-making
One of the key issues examined by the Summit was the overuse of guardianships when a lesser alternative that meets the adult’s needs is available. Supported decision-making is the use of personally selected helpers who empower individuals with disabilities to make their own decisions. While there is no one definition of supported decision-making, the Summit incorporated Law Professor Robert Dinerstein’s definition of this guardianship alternative: “a series of relationships, practices, arrangements, and agreements, of more or less formality and intensity, designed to assist an individual with a disability to make and communicate to others decisions about the individual’s life.” In some cases, supportive arrangements are formalized in supported decision-making agreements. So far, at least eleven states have enacted legislation that recognizes supported decision-making agreements, and additional states recognize the concept of supported decision-making in other ways. Most of the legal reform and practice innovation about supported decision-making has focused on people with intellectual or developmental disabilities, although advocates, social service providers, and stakeholders have begun exploring its application for people with age-related cognitive decline (which was the topic of one of the ten Summit background papers), psychiatric disabilities, and traumatic brain injuries. The Summit recommended the funding of pilot projects targeting older adults at risk of guardianship.
To expand the awareness and use of supported decision-making, the Summit recommended broad-reaching education about its availability and feasibility to courts, families, health care providers, financial institutions, government officials, and the general public.
Additionally, the recommendations urge courts and policymakers to recognize supported decision-making as a less restrictive alternative to guardianship. They identify three stages in the guardianship process where consideration of supported decision-making should be included: 1) petitioners for guardianship state whether it has been tried or is not feasible; 2) before imposing a guardianship, the court finds by clear and convincing evidence that it is not feasible; 3) during any periodic review of the need to continue a guardianship, the court affirmatively determines that supported decision-making and other less restrictive alternatives are not feasible.
Challenge: Creating greater uniformity among state statutes to limit the scope of guardianship orders
Another key Summit focus was on the common practice of overly broad removal of autonomy when guardianship is necessary in some but not all areas of functioning. All states have some statutory provisions directing courts to limit the scope of guardianships, but they appear to be rarely used. Plenary or removal of all rights appears to be the norm in too many cases. With a limited guardianship, the protected person retains all rights that have not been removed by specific court finding of need. Use of limited guardianships reduces intrusion into the person’s rights and lessens government intervention.
Protective arrangements are another way to limit and even avoid a guardianship. They are court orders authorizing someone to act in a very limited scope that stop short of appointing a guardian or conservator. For example, limited protective orders may authorize someone to gather financial records and file for public benefits, or sign an admissions agreement for a residential placement, or approve the sale of real estate with the proceeds placed in trust to pay for the person’s care, or consent to specific health care.
To equip states to limit the scope of guardianship orders more effectively and to facilitate use of protective arrangements, the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA) sets out model language for state legislatures to adopt. Key provisions of the Uniform Act include, among others: (1) prohibit guardianships where less restrictive alternatives would meet an adult's functional needs; (2) require specific court findings before certain critical rights (e.g., to marry, vote, choose visitors) are abridged; (3) require petitioners to state whether less restrictive alternatives have been tried and justify any failure to do so; (4) create mechanisms that adults subject to guardianship and others can use to trigger modification or termination of an order; (5) clarify that a lawyer for a respondent, or adults subject to guardianship, must represent the adult's wishes; and (6) enable protective orders (or single transaction orders) instead of guardianship, thus expanding alternatives to guardianship.
Summit Recommendation 3.1 calls for widespread state adoption of these critical reforms to ensure better avenues, stronger protections, and greater independence for individuals being considered for guardianship.
Perhaps the boldest of all the recommendations is 3.2 which calls for eliminating all plenary guardianships and requiring a tailored order when the assistance of a guardian is necessary. The Summit urges courts to review all existing plenary guardianships to determine if continuation is justified, with the presumption that the plenary removal of all rights is not warranted.
Finally, the recommendations call on states to create “guardianship diversion programs” that could be operated to facilitate use of less restrictive options, perhaps in collaboration with schools, adult protective services, health care entities, aging and disability service providers and the legal community. Along with such diversion programs, the recommendations focus on educating individuals and entities involved in school to guardianship pipelines, and hospital or nursing home to guardianship pipelines that routinely result in plenary orders without exploration of less restrictive options.
Challenge: Bolstering guardianship monitoring and addressing abuse
Once the judge appoints a guardian, some courts see it as the end of the case, but actually the case is just beginning and may be ongoing for months, years or even decades. Courts need mechanisms to track guardianship cases and intervene if necessary.
Good monitoring necessitates good data and case management systems. The Summit calls for the state’s highest court to require “ongoing collection of timely guardianship data” and sets out specific steps for doing so, including developing the requisite technology and data standards.
The Summit urges a “person-centered monitoring system” including uniform forms available online and in multiple languages; care and financial management plans; regular court review of guardian reports and accounts; and status reviews of the choice of guardian and possible use of less restrictive options – as well an annual judicial in-person review. Also included is an independent entity to investigate the guardian’s conduct in appropriate cases.
But what about other ways to safeguard the rights of adults subject to guardianship, to augment the court’s review? One approach would be to continue representation by counsel. The recommendations support such an ongoing role for counsel appointed at the outset of the case, “preferably a legal services, public defender or other public service lawyer to minimize expenses to the estate.”
Another means of safeguarding rights is a complaint process. The recommendations urge state courts to develop a guardianship complaint process that is user-friendly, transparent, and effective. Additionally, the recommendations urge development of an advocacy program for adults subject to guardianship using trained volunteer visitors, similar to the well-established child welfare Court-Appointed Special Advocate (CASA) Program.
Challenge: Addressing fiduciary responsibilities and tensions
Guardians are part of a broader category of “fiduciaries” with a high set of legal and ethical standards of trust, confidentiality, and integrity. How can fiduciaries be regulated to maximize autonomy of beneficiaries while at the same time ensuring accountability?
Certification is a recognition process by a non-governmental agency or association – such as the Center for Guardianship Certification -- of those who have met certain qualifications. Licensure is a process by which a government agency grants permission to engage in a profession and sets out standards for doing so. The Summit recommends that states regulate court-appointed professional guardians through licensure or certification or both, with sufficient funding for implementation, including to vet, train, test and discipline guardians, and with standards for education and training. In addition, the Summit recommends broad-based training for professional guardians, family guardians and the public on less restrictive options and good guardianship practice.
Sometimes, if more than one fiduciary is involved -- for example, a guardian and a representative payee, trustee, or agent under a power of attorney – conflicts and tensions may develop. There is a need for creative solutions to address these possibly competing interests and roles, and to better delineate the court’s reach. The Summit urges NGN member organizations to better manage fiduciary conflicts by encouraging education on supported decision-making and less restrictive options. It highlights tools for resolving fiduciary conflict such as mediation, eldercaring coordination (court-ordered dispute resolution for aggravated family conflicts), use of Protection and Advocacy agencies, appointment of a guardian ad litem, and use of special needs trusts and ABLE (Achieving a Better Life experience) accounts.
Finally, a Summit recommendation urges the development of rules, forms and procedures to implement the 2017 Uniform Guardianship, Conservatorship and Other Protective Arrangements Act.
Challenge: Sustaining ongoing reform through a guardianship court improvement Program
Over the past three decades, state guardianship laws have moved ahead on many fronts, and the three prior guardianship summits helped to trigger change. But implementation in practice has been uneven at best. The obstacles to reform are substantial, and neither courts, nor legislatures, nor guardianship practitioners alone can overcome them. The 2011 Third National Summit recommended that states create Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) to advance change through collaborative court-community partnerships. Many states have convened WINGS, which have taken positive steps and sent out ripples of change. Yet their efforts have been constricted by inadequate funding and lack of sustainability.
To be effective, states must have a national support, funding, and technical assistance infrastructure. Such a model, called the Court Improvement Program (CIP), has existed in the child welfare field since 1993, and has made marked advances in court processes for children and families. The highest court in each state receives funding for a staff coordinator and for strategic planning, data collection, and training.
The Summit recommends that Congress establish a Guardianship Court Improvement Program and provide funding directly to the highest court in each participating state. Through the Program, state courts could engage in meaningful data collection, improve oversight and accountability of guardians, and focus on less restrictive option. Such a program also would enhance collaboration of the courts and other agencies and organizations, building on the start made by WINGS. Federal legislation creating such a Guardianship Court Improvement Program should also provide for ongoing technical assistance and capacity-building, including help with evaluation and continuous quality improvement, for all of the participating state court systems.
Conclusion
The next step is implementation of the Summit recommendations. Senior Lawyers can play key roles. Start by examining the background papers, issue briefs, and recommendations. Then identify stakeholder leaders in your state who could be involved. Find out who from your state attended the Summit, and whether your state has chapters of NGN partner organizations such as the National Academy of Elder Law Attorneys or the National Guardianship Association --and of course work with your state bar association. See if any of these state entities would endorse the recommendations. If there is an existing WINGS or similar collaborative interdisciplinary group, they may take a lead.
Consider a state summit to adapt and prioritize the Summit recommendations. Meet with the state court administrative office and leading judges who handle guardianship cases. See whether your state or locality has an elder justice coalition. There may be one Summit recommendation in particular that peaks your interest and involvement – forge ahead on that! The main thing is to activate the Summit research and recommendations in whatever way you choose. Find ways to bring the outcome of the Summit to life to improve the lives of adults subject to – or potentially subject to – guardianship.