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    January 19, 2024

    Guardianship Books Synopsis and Review

    David Godfrey and Beth Russo
    The PDF in which this article appears can be found in Bifocal Vol. 44; Issue 3.

    Defense Against Guardianship: A Lawyer’s Guide to Representing Individuals in Guardianship Cases

    A Book Synopsis by David Godfrey, JD, Immediate Past Director, ABA Commission on Law and Aging

    Over the last decade or so, the Courts have seen a huge increase in active defense of individuals responding to a petition for adult guardianship or conservatorship. The lawyers in these cases are often pioneers with few resources or role models. Yet, as the experience of Clark County Nevada has shown, a meaningful defense results in more than 1/3 of all cases being resolved without the appointment of a guardian. Two years ago, a search for a book on how to develop and present a case defending against guardianship found nothing, so the ABA Commission on Law and Aging decided to create one, and here it is.

    Divided into 18 short chapters, the text covers the ethics of representing clients in these cases, an overview of legal capacity, an exploration of due process challenges in guardianship cases, an overview of communication accommodations, issues when guardianship is used to change estate planning, options for health care decision making, alternatives to guardianship for financial management, a review of activities of daily living and actual abilities, interventions to avoid guardianship, how select witnesses, court proceedings, a discussion of attendance by the defendant at hearings, actions to modify or terminate an existing guardianship, deciding on and developing a defense strategy, and how to select the best guardian when a guardian is needed. 

    The book is filled with ideas and strategies to minimize the use of guardianship.  Several sections discuss alternatives to guardianship to assure that health care decisions are made, money is managed, and personal care is provided. The truth is that the majority of adults with diminished or limited capacity are supported and cared for by family and friends, without the need for guardianship.  Reviewing alternatives is an essential part of every defense effort.  Many of these cases can be resolved using alternatives and protect the rights of the adult, and avoid government involvement. 

    There are significant concerns about the due process protections in many guardianship cases.  The defense attorney is the protector of their clients’ right to notice, to being heard, to confront witnesses, assuring compliance with the rules of evidence and burden of proof and all of these are explained in the book. 

    When a trial or hearing is needed, the defense needs to assure that their client’s needs are accommodated, and to assure that their client can participate if they wish to do so.  Defense strategies range from the client having capacity, to alternatives meeting the needs of the client, to there being no need or legal reason to restrict the rights of the defendant.  

    The book was written by Erica Costello, Elizabeth Russo, and David Godfrey, three attorneys, each with over 20 years of experience in adult guardianship work. Erica and Elizabeth are nationally certified guardians, the first Court filing of David’s career was an adult guardianship case. 

    The book should be helpful for anyone looking to defend legal and human rights of adults in guardianship cases.

    Published by the ABA Commission on Law and Aging.  Available in the ABA Webstore. List price $49.95, ABA Member price $44.95.  www.americanbar.org/products/inv/book/435500044

    The Fundamentals of Guardianship: What Every Guardian Should Know

    A Book Review by Beth Russo, JD, Senior Attorney ABA Commission on Law and Aging

    As readers of this publication know, being a guardian is one of the most sacred ways to serve others that we have in our society.  As guardian, you stand in place for the person, making decisions that they are unable to make for themselves in order to maximize their independence while also keeping them safe.    The National Guardianship Association is an organization whose mission is to advance nationally recognized standards of excellence in guardianship.  It serves as a resource for guardians and those interested in guardianship either as an institution or on a more personal level.  All of these audiences will get something from the recent update of its handbook, The Fundamentals of Guardianship: What Every Guardian Should Know.

    Although dealing with a person’s most intimate affairs, a guardianship is a construct rooted in public trust.  It is the government exercising its parens patriae authority in a similar way to how a feudal lord would protect his serfs.  Because of the concerns for exploitation that are inherent in guardianship, there are steps that must be taken and reports that must be made when managing someone else’s affairs that are not present when managing our own lives.  However, despite this necessity and in spite of the growing number of guardianships in this country (an estimated 1.3 million people were under guardianship according to a 2018 study published by the National Council on Disability) there is very little formal training for guardians.  That is why an update to The Fundamentals of Guardianship: What Every Guardian Should Know is so needed.  It is an easily digestible textbook of best practices for guardianship. 

    This book walks readers step-by-step through all of a guardian’s potential responsibilities and explains what is needed along the way and why.  While this book is marketed towards guardians, anyone interested in learning more about guardianship can benefit from the information within. After a narrative section, the book switches to a practical checklist/worksheet format.  These pages can be used by a guardian to guide them in executing a wide variety of duties. They cover topics as varied as initial inventories to doctors’ visits.  There is a worksheet on how to set up a budget as well as a checklist for things to look for and accomplish during visits.  A guardian can simply review (and fill out) these pages as they perform their duties.  The book also includes the National Guardianship Association’s Standards of Practice, the Standards of Practice checklist (which is designed to help walk guardians through decisions in certain areas), and its Ethical Principles.  Each of these are important documents for guardians to regularly review to ensure they are fulfilling their ethical duties.  Consequently, this book should quickly become well-worn and dog-eared when owned by a guardian.  You should go and get a copy for a guardian in your own life, as well as one for yourself.

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