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July 01, 2013

State Statutory Authority for Restoration of Rights in Termination of Adult Guardianship

Jenica Cassidy

(Note: For a footnoted version of this article, please download the pdf issue of BIFOCAL Vol. 34, Issue 6.)

Guardianships are designed to protect the interest of incapacitated adults. Guardianship is the only proceeding in American courts in which adults can be permanently deprived of rights solely in order to protect their well-being when they are unable to care for themselves. Due to the seriousness of the loss of individual rights, guardianships should always be a last resort. An adult under guardianship who has regained capacity has the right to restoration and to manage his or her person and estate. While it is most common for a guardianship to end upon the death of the individual, in all jurisdictions, the court has the power to terminate a guardianship upon finding that the individual has regained capacity sufficient to manage his or her personal affairs.

Unlike an appointment of a guardian, the statutory legal procedure for restoration is often unclear, ambiguous, and inconsistent. The procedural process and the duties of the court and of the guardian vary significantly by state, court, and judge. Due to the inconsistency among state statutes, variations in practice, and lack of hard data on restoration proceedings, it is unclear whether current law adequately protects the right to restoration.
This paper examines state statutory provisions concerning restoration of rights in four areas: (1) general procedure for restoration; (2) the presence or lack of evidentiary standard provided for in the statute; (3) the procedural barriers and safeguards in restoration proceedings; and (4) the role of the guardian and of the court upon termination.

Procedural Process in a Petition for Restoration
The Uniform Guardian and Protective Proceedings Act (UGPPA), revised by the National Conference of Commissioners on Uniform State Laws (currently the Uniform Law Commission) in 1997, stipulates that guardians must encourage the protected individual to participate in decisions and to regain capacity, and courts must limit the scope of guardianship orders where possible. Since its enactment, 15 states have adopted the official language or language substantially similar to the official UGPPA provisions concerning restoration of rights.

The primary issue before the court in a restoration proceeding is whether the protected individual has capacity. A determination of restored capacity can be made only after an adjudication, wherein the court determines any change in circumstance and improvement in capacity of the individual. The manner in which this is accomplished depends on the jurisdiction. In 18 jurisdictions and the UGPPA, the statute simply states that in a petition for restoration and termination, the same procedures apply as in an appointment of a guardianship.

Many states and the UGPPA require that a respondent seeking termination be afforded the same rights and protections that are provided in the establishment of the guardianship. Such rights might include the right to notice, the right to personally attend the hearings, the right to counsel or a guardian ad litem, the right to examine witnesses, and the right to appeal.
Most states provide very broad permission to the protected individual or any interested party to seek restoration. Three states, Connecticut, Iowa, and Wyoming, limit the authority to petition for restoration to the individual under guardianship. New Jersey limits authority to the individual and the guardian.

Upon the filing of a petition for restoration, the court will provide notice and schedule a hearing on the issue of capacity, pursuant to the state requirements. Some courts conduct a hearing immediately upon filing, so long as they find sufficient cause to warrant further proceedings. Other courts schedule a hearing only after they receive a medical examination report from a court-appointed expert. Notice of the hearing is given to the guardian and the protected individual, and to other interested parties as required by the statute.

After the hearing, the court may restore the individual’s rights and terminate the guardianship if the burden of proof for capacity is met and the court deems restoration to be appropriate. The adjudication of restoration is grounds for terminating the guardianship. The discharge of the guardian ends all rights and responsibilities of the guardianship, except for those involved in the winding up of the guardianship.

Evidentiary Standard
The evidence considered in a guardianship hearing depends upon the guardianship laws of the state. The petitioner has the burden to show that the protected individual has capacity such that guardianship is no longer necessary. The burden then shifts to the party opposing restoration to prove the continuation of incapacity. Unlike in a petition for appointment of a guardian where the burden of proof is generally clear and convincing evidence, the standard in termination proceedings varies greatly and is often unclear.

Under the UGPPA, once the petitioner establishes a prima facie case for termination the court shall order the termination unless the opposing party establishes by clear and convincing evidence that continuation of the guardianship is in the best interest of the protected individual. The lower evidentiary standard for termination is consistent with the Act’s philosophy that a guardian should be appointed only for as long as necessary. Only two states, Minnesota and Maine, have adopted the UGPPA’s prima facie evidentiary standard for restoration. Seven states require the petitioner to prove by a preponderance of the evidence that the individual has sufficient capacity to manage his or her own affairs. Eight states use the higher standard of clear and convincing evidence. Mississippi requires “such proof as the chancellor may deem sufficient.”

Thirty-three states do not provide a specific evidentiary standard. There is little case law in the area of restoration and it is not entirely clear what standard of proof should apply. Courts have taken different approaches. A circuit court case in Florida suggests that the standard is a preponderance of the evidence. Cases in Ohio have found that the evidence presented need not be clear and convincing but need only ensure that the guardian’s removal will serve the individual’s best interests. New Jersey cases suggest that the burden be clear and convincing. Rhode Island does not set out an evidentiary standard. Rather, it requires the court to remove any guardian upon finding that the individual, based on a decision-making assessment tool directly in the statute, has the capacity to make decisions regarding his or her personal affairs.

In states without an express burden of proof, a court may simply use the same evidentiary standard that it uses in a petition for guardianship, which is generally the high standard of clear and convincing evidence. But there is no research to substantiate this. Courts may be more inclined to use the same evidentiary standard when the statute expressly requires the court to follow the same procedural standards as in a petition for guardianship. Of the 18 states that require the court to follow the same procedural standards as in a petition for guardianship, only four expressly state an evidentiary burden of proof. Minnesota requires prima facie, Hawaii and Oregon require clear and convincing evidence after the petitioner establishes a prima facie case for termination, and Louisiana’s standard is a preponderance of the evidence. The remaining 13 states that require the same procedures as in a petition for guardianship do not state an evidentiary standard. The legislative intent is unclear.

In spite of the variation and ambiguity, it is clear that at least eight states require courts to use a lesser burden of proof (either prima facie or preponderance of the evidence) in a petition for termination than in an initial petition for guardianship. There is no research to determine whether courts in these states may grant restoration more frequently. Due to the nature of the issues and the presumptions to be overcome, codifying an evidentiary standard can be an additional tool for states to protect the autonomy of the protected individual.

Moratorium Periods on Filing Requests for Review
States may enact procedural bars to petitions for restoration. Eleven states permit courts to specify a minimum time period after the issue of the order adjudicating incapacity during which a petition for a review of the order may not be filed without special leave. Of these states, eight require that the period not exceed one year, two require that it not exceed six months, and Michigan sets the maximum period at 182 days. While this may reduce frivolous and hasty attempts to remove a guardian, it could at the same time delay legitimate petitions for removal and restoration of rights.

Four states specify a period during which a petition for reconsideration of an adjudication of incapacity cannot be filed, regardless of what the original order says. Arizona precludes an interested person, other than the guardian or protected individual, from filing such a petition within one year of the order adjudicating incapacity unless the court believes that the individual is no longer incapacitated.  Texas expands the one-year period to apply to any person. Iowa and Wyoming preclude such a petition within six months of the denial of a former petition. Other states don’t place any limitations on the time in which a petitioner may file a request for restoration.

Procedural Safeguards
As a practical matter, the only way an individual can end a guardianship against the wishes of the guardian is by initiating a contested court proceeding. Under the UGPPA and in similar jurisdictions, once a guardian has been appointed, the court will ordinarily act only if a moving party so requests. Twenty states and the UGPPA expressly permit a request for restoration to be made informally to the court. In these states, the petitioner may informally communicate with the court instead of filing a formal application. This makes the judicial process more accessible by reducing procedural barriers to filing, such as cost and time, which may deter interested parties from taking action. However, it would be critical for the individual to secure counsel should the petition proceed further. As an additional safeguard, 17 states expressly bar willful interference with a request for restoration to the court. The court may hold any person who knowingly interferes with the transmission to be in contempt of court.
Colorado specifically targets the guardian, stating that the fiduciary shall not take an active role opposing or interfering with a proceeding for restoration initiated by the protected individual. However, the guardian may file a report on matters relevant to the termination proceeding, and may file a motion for instructions regarding the appointment of an attorney or visitor, investigations to be conducted, and the guardian’s involvement in the proceedings. The UGPPA does not contain a similar provision.

These procedural safeguards—permitting informal requests for restoration and sanctions for interference with such requests—increase accessibility to the judicial process independent of the guardian. Seventeen states have codified both protections. Thirty-one statutes do not include either protection. General statutory provisions requiring guardians to act in the best interest of the individual and the common law likely apply in this context. The common law impliedly allows a guardian to oppose a petition for restoration so long as the guardian acts reasonably and in good faith. The guardian’s general duty of loyalty may require the guardian to oppose a petition for restoration where it is clear the individual has not regained capacity.

Following appointment of a guardian, courts have an on-going responsibility to ensure that the terms of the order remain consistent with the respondent’s needs and conditions. Three states, Connecticut, Missouri, and New Mexico, require the court to periodically analyze whether the individual’s circumstances have changed sufficiently to justify termination and restoration. In Connecticut, the court must conduct a review “not later than one year after the conservatorship was ordered and not less than every three years after such initial one-year review.” Missouri requires that the court to inquire into the status of every protected individual at least annually, to determine whether the incapacity may have ceased. New Mexico requires the court to hold a hearing to review the continued need for a guardian “at any time following the appointment of a guardian, but not later than ten years after the initial appointment, and every ten years thereafter.” In these states, the individual is regularly assessed by the court, regardless of whether a petition for restoration is filed.

Duties of the Guardian and Rights of the Individual
While states require a periodic status report from the guardian, some states impose additional reporting duties upon a change in the individual’s capacity. Three states expressly require the guardian to immediately notify the court if the incapacitated individual’s condition has changed. This is consistent with existing standards that call attention to a guardian’s duty to report to the court should a change in capacity occur. The UGPPA, the National Guardianship Association Standards of Practice, and Rule 6 of the Model Code of Ethics for Guardians require the guardian to promptly seek termination of the guardianship upon any change in capacity of the person that warrants termination. While not law, these standards are in line with guardianship policy to protect autonomy and work towards the regaining of capacity.

Every individual under guardianship has the right to petition for restoration. Three states have codified that right in the guardianship statute. Florida, Georgia, and Michigan expressly state that the individual has the right to have their autonomy and rights restored at the earliest possible time. But what is the “earliest possible time”? And what do courts do in practice to determine the earliest possible time? There is little data or literature to provide an easy answer.

This statutory review is an initial examination of current state law on restoration of rights in the termination of adult guardianships. In light of the findings in this paper, there is a compelling need for additional research and data collection to determine which state practices adequately protect the individual’s right to restoration. It’s unclear whether more restorations occur in states that codify detailed restoration procedure and protections.

Further, it is unknown in practice whether such detailed procedural requirements lead to more petitions for restoration. A second phase of this study, including a restoration case law summary and intensive reviews of probate court procedure in jurisdictions with exemplary practices, is necessary to document and articulate restoration practices for replication across the United States. ■

Jenica Cassidy

About the Author: Jenica Cassidy is a third-year law student at Wake Forest University School of Law in Winston Salem, NC, and served as a 2013 summer intern with the Commission on Law and Aging.