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    January 12, 2023

    Defending Against Guardianship: Early Lessons from Conversations with Practitioners

    Rebecca Harris

    The PDF in which this article appears can be found in Bifocal Vol. 44 Issue 3.

    Defending Against Guardianship: Early Lessons from Conversations with Practitioners

    Lawyers who take on guardianship cases often find themselves in the legal equivalent of the “wild, wild west.” Judges in many jurisdictions simply do not follow the law in guardianship cases, ignoring procedural requirements and substituting their own judgement for the true legal standard. This has been the first and most salient takeaway from a series of interviews conducted by the ABA’s Commission on Law and Aging with attorneys who represent allegedly incapacitated people in guardianship proceedings. Ultimately, these interviews and an accompanying survey will form the basis for a guide to opposing guardianship petitions and terminating guardianships already in place. There is a clear need for this kind of guide. The stakes in guardianship cases are tremendously high: when an individual becomes subject to guardianship, they essentially lose their legal personhood. A well prepared defense attorney can be the only thing that can prevent a loss of the person’s rights. Though there are treatises and other resources on guardianship law in many states, they are almost always designed for the attorney for the prospective guardian, not for the attorney representing the allegedly incapacitated person. And, as many of our interviewees pointed out, defending against guardianship can be far more challenging than putting a guardianship in place. This is due in no small part to the bias in favor of guardianship that exists in many courtrooms across the United States.

    Practitioners Reported Paternalism and a Lack of Due Process in Guardianship Proceedings

    There is often a gap between the law on the books and how guardianship proceedings actually play out, and this gap almost invariably works in favor of the party seeking guardianship. The bench’s bias in favor of guardianship appears in several different ways. In some cases, judges apply a more lax standard for the imposition of guardianship than the standard under the law. For example, judges may deem a guardianship appropriate simply because the respondent lacks capacity, even if the law requires an additional finding that guardianship is necessary. Interviewees also noted time and time again that judges often disregard the basic due process rights of allegedly incapacitated people. One attorney described how some judges in his state would assign temporary guardians on the spot, as soon as a petition was brought, even if no notice had been provided to the person placed under guardianship. In this scenario, the person would find out only after the fact that they had been deemed incapacitated and deprived of their basic legal rights.

    There was one unifying explanation given for the problems described above: many judges hold paternalistic attitudes toward persons with disabilities. This kind of attitude may manifest as a belief or expectation that anyone with a moderate or severe disability will need a guardian, regardless of the legal standard or burden of proof. Attorneys report that fighting against this expectation can be an uphill battle. Similarly, judges may believe that guardians are typically benevolent or “doing God’s work” and be reluctant to subject them to much scrutiny. One attorney linked this belief to judges’ reluctance to formalize guardianship hearings. A number of practitioners also noted a “safety-first” mindset among judges, who do not place equivalent weight on the rights and freedoms of the allegedly incapacitated person—or simply do not take this factor into account at all. Some interviewees attributed this mindset to judges’ concern that if they did not place an individual under guardianship, and something were to go wrong, the judge would be blamed. This also boils down to a kind of paternalism, because it is based on the idea that persons living with a disability are not responsible for their own decisions and that they should always be protected from any situation in which they might make a mistake.

    Less Restrictive Alternatives (LRAs) Are Key to Defense Against Guardianship

    Though practitioners acknowledged that it can be difficult to break through judges’ preconceived notions about guardianship and disabled people, they have also identified some best practices for swaying the bench. First and foremost, to convince judges that guardianship is not necessary in every scenario, it is vital to highlight less restrictive alternatives to guardianship (LRAs) as much as possible. For example, it may be possible to set up a supported decision-making agreement, a trust, and/or a power of attorney rather than a guardianship. Some states have passed laws requiring consideration of LRAs in guardianship cases. But even in states without this provision, the law may still require the court to find that a guardianship is necessary before entering a guardianship order. This opens up a strong line of argument: if there are viable LRAs, the guardianship cannot possibly be necessary. Practitioners also noted that evidence on LRAs often has persuasive power above and beyond its legal weight. By highlighting the safeguards that their client already has in place, an attorney can reassure the court that denying a guardianship petition will not automatically lead to disaster. And by walking the court through a supported decision-making agreement or explaining how their client uses their support system to keep themselves on track, the same attorney can add nuance to judges’ understanding of how disabled people exercise their rights.

    Because LRAs are so critical to successful defense against guardianship, practitioners recommended that their colleagues begin to explore LRAs immediately when they take on a new case. In their very first interviews with prospective clients, attorneys should be sure to ask about the individual’s support network and how they make decisions. The attorney should then follow up on these conversations with fact-intensive inquiries into the LRAs that the individual already has in place, how they are working, and where they could be improved. Where LRAs are already working, detailed descriptions of these arrangements should be included in pleadings. And where it may be possible to create new arrangements, like supported decision-making agreements, attorneys should pin down exactly what these would look like. Even when it is not feasible to formalize anything before a hearing, attorneys should be prepared to provide detail on what they are proposing: who would hold the power of attorney? Has this person agreed to take on this responsibility? What exactly would that agreement include? It is also a best practice to have multiple potential plans in mind, in case one falls through.

    Other Recommendations from Practitioners

    Interviewees also shared the following best practices:

    • Don’t be afraid to do things differently. In some jurisdictions, the norm is for attorneys to approach guardianship proceedings as informal negotiations and to deemphasize pleadings and motions practice. For example, one practitioner reported that most of her colleagues did not file answers to guardianship petitions. Some interviewees attributed this to a concern that insisting on formality would cause the judge to turn against the attorney, or even the client. However, a number of interviewees said that they have successfully pushed back against this norm and encouraged their colleagues to do so as well. There may be some situations in which a judge is so hostile and resistant to change that any deviation from standard practice would be counterproductive. But norms in this area may already be changing, giving individual attorneys more latitude to change their own strategies. Most survey respondents said that they use opening and closing statements in guardianship cases at least some of the time, despite a widespread perception that opening and closing statements simply aren’t used in these cases. By zealously litigating these cases, attorneys not only fulfil their own professional duties but also educate the court on the rights of allegedly incapacitated people and create a stronger record for appeal.
    • Don’t forget about negotiation. When feasible, attorneys should reach out to the petitioner or their client’s current guardian in the early stages of the case to see if an agreement can be reached. It may be possible to convince the other side to withdraw their guardianship petition or to reach an agreement about how a guardianship should be modified without going to court. There is no tension between negotiation and zealous advocacy in these cases, as negotiation may achieve the client’s desired result while avoiding an expensive, stressful legal process.
    • Invest time and energy into building a strong attorney client relationship. Attorneys defending clients against guardianship should meet with the client multiple times and establish a normal attorney-client relationship to the extent possible. As in other contexts, this practice fosters trust and helps the attorney develop a comprehensive sense of the client’s goals and priorities. Multiple meetings may also give the attorney more opportunities to explore LRAs, as described above, and provide some insight into what accommodations will best facilitate the client’s full participation. For example, it may become clear that the client is better able to communicate in the morning than in the late afternoon, in which case hearings should be scheduled for morning time slots.

    Additional Resources

    For more information on this topic, please see:

      Rebecca Harris

      Yale Law School

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