A person who suffers abuse experiences a loss of control over their life. Placing such a person under guardianship, particularly if the guardian is the abuser, further disempowers the person who is experiencing abuse. Courts frequently employ guardianship as a measure to protect adults from abusers; such measures, as well-intended as they may be, further a state of affairs in which efforts to prevent abuse place the onus on victims to not to be abused, rather than on abusers to not abuse. Removing the legal personhood of an adult experiencing abuse effectively punishes them for having been abused.
So how do legal professionals avoid placing adults experiencing abuse, known or invisible, under guardianship? Luckily, legal professionals have a robust set of alternatives to guardianship they can employ to ensure an adult with functional limitations experiences the least amount of restriction possible yet has their functional needs met. In cases where a client with declining cognition has periods of competency, a lawyer can work with them on designating a durable or springing power of attorney (POA) and creating a living will. Such an endeavor might involve having awareness of, and planning around, the adult’s periods of lucidity. For many dementia suffers, mornings are a sharper time than evenings. A lawyer who works with an aging population should seek education about neurodegenerative conditions to better meet the needs of their affected clients. Assistive technologies can also facilitate communication; a loss of verbal ability does not necessarily indicate a dearth of understanding or lack of desire to communicate. A lawyer who assists a client in designating a POA should also ensure the client does not designate a selected person out of fear or a belief they do not have a choice. Methods of avoiding undue influence include having discussions with the client without the suspected abuser or cause of undue influence present, as well as having multiple conversations about the topic with the client and working to developing a rapport with the client. A client will be much more likely to divulge abuse or other concerns to their attorney if they trust their attorney.
When a client has begun to struggle to meet their daily needs, community-based services, such as assisted transportation, help with household chores, benefits counseling, chronic disease management, and care planning can provide an adult long-term, structured help with their daily life without altering their legal status. If a client is incapable of managing their Social Security benefits, a representative payee, rather than a guardian, can receive and manage the benefits on the adult’s behalf. Meanwhile, 13 states, along with the District of Columbia, have statutes outlining how an adult can enter into a supported decision-making agreement, which formalizes an arrangement in which a supporter, often a trusted friend or family member of the adult, helps an adult make decisions in areas where the adult would benefit from assistance. Supported decision-making leaves ultimate decision-making power in the hands of the adult, while providing a supporter with authority to participate in discussions, and access information, regarding these decisions. Much like when helping a client designate a POA, a lawyer should ensure a client chooses a supporter who will look out for their best interest. Finally, in circumstances where guardianship is found necessary despite these alternatives, a limited guardianship, tailored to the case at hand, in which an adult receives separate due process for each legal right they lose, is more autonomy-preserving than plenary guardianship.
Meanwhile, the gathering and reporting of comprehensive data on guardianship cases across the country would allow advocates to better identify patterns across guardianship cases and issues these patterns might suggest. Such data might include the relationship of the guardian to the adult under guardianship, the demographic information of the adult and the guardian, the reasons guardianship was sought, and the reasons the guardian was appointed. Problem-identifying and solving require robust data.
Guardianship entails stripping a person of their legal rights: taking power over their life out of their hands and placing this power in the hands of another. The fact of someone requiring increased support, being in a vulnerable state, and/or experiencing victimization should not signal to legal professionals a need for that person to experience legal disempowerment. Instead, it should indicate a need for that person to receive the support they need to safely, and with dignity, lead an autonomous life. In cases where an adult has experienced a loss of control via abuse, a thoughtful, independence-preserving response works to restore control to them, while a guardianship order serves to perpetuate their disempowerment. Luckily, legal professionals now have a wide array of tools they can use in place of guardianship—tools with which the legal community will only become more well-versed in years to come.
Centers for Disease Control and Prevention. (2021, 2 November). Preventing Intimate Partner Violence. https://www.cdc.gov/violenceprevention/pdf/ipv/IPV-factsheet_2021.pdf
Sormanti, M. and Shibusawa, T. (2008, February 1). Intimate Partner Violence among Midlife and Older Women: A Descriptive Analysis of Women Seeking Medical Services. Health & Social Work. https://academic.oup.com/hsw/articleabstract/33/1/33/607499?redirectedFrom