(Note: The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 36, Issue 3.)
Guardianship is the legal means by which the court gives one person the duty and power to make decisions for another. Once a guardianship is in place, it can be difficult to modify or terminate. For the majority of protected individuals, there will not be a return to liberty. However, courts may terminate a guardianship if the individual regains capacity or develops decision-making supports that make the guardianship unnecessary. The right to petition for restoration is part of the due-process protections of individuals under guardianship. However, due to a lack of adult guardianship data, little is known about the practice of restoration. While there has been extensive legislation and reform of procedural protections for initially pursuing a guardianship, restoration of rights once the guardianship is in place is under-utilized and under-litigated.
In 2013-2014, The Commission undertook a pioneering study on adult guardianship restoration law and practice in the United States. The purpose of the study was to gain a better understanding of the state of restoration through an initial examination of statutes and case law, as well as stakeholder experiences. This summary is drawn from an upcoming article outlining the study methodology, findings, and policy and practical issues surrounding the practice of restoration.
The study methodology comprised of four elements: (1) statutory review; (2) case law search and analysis; (3) online questionnaires for attorneys and judges; and (4) stakeholder interviews. In all, staff collected 104 cases, dating as far back as the year 1845. A chart analyzing the elements of each case is available online at the ABA Commission on Law and Aging’s Guardianship Law and Practice Resources website. The study is exclusively comprised of petitions for restoration of adults under guardianship, the case proceedings and court order, and their appeals. To maintain a modern concentration, research analysis focused on 57 cases dating from 1984 to 2014. The study’s questionnaire respondents were not a representative sample, but their answers begin to shed light on an important area of practice.
The study indicates that petitions for restoration are uncommon but do occur and have moderate success. Of the 152 judicial respondents who completed the online questionnaire, 73% have presided over petitions for restoration with 24% presiding over more than 10 petitions. Forty-seven percent of the 412 attorney questionnaire respondents have filed at least one petition for restoration within the last 10 years. Of those, 96% reported having success with at least some of the petitions.
The right to petition for guardianship, although available to every protected individual, does not appear to be exercised evenly across disability populations. The study indicates that petitions are more likely to seek restoration for older individuals. Of the collected cases that indicate the disability population of the protected individual, 51% of cases were to restore an older individual.
The Evidence Courts Use to Determine Restoration
In restoration proceedings, the primary question before the court is whether the protected individual has regained capacity sufficient to manage his or her affairs. Most often, courts have wide discretion to determine the evidence upon which to grant or deny the petition. The collected case law indicates that courts generally rely on two primary kinds of evidence: a medical examination of capacity and an in-court observation of the protected individual. Lay witnesses can impact the judge’s decision but courts generally seem to view such testimony as secondary.
The Role of the Guardian
Guardians have a fiduciary duty to protect and act in the best interests of the protected individual. However, guardians are not explicitly obligated to assist the protected individual in seeking restoration. Further, some cases found that common law impliedly permits a guardian to oppose a petition for restoration so long as the guardian acts reasonably and in good faith.
The guardian’s opposition to restoration may have an impact on the outcome of the petition. In the collected case law, only 33% of petitions were successful when the guardian opposed restoration, whereas 50% of petitions were successful when the guardian supported restoration. In addition, the collected case law indicates that generally the protected individual is obligated to pay attorney fees for a guardian who contests the restoration petition, enlarging the harsh financial burden of pursuing restoration.
Roadblocks and High Hurdles
The study uncovered many barriers that an individual must overcome when pursuing restoration. For example, a key barrier may be the simple lack of awareness of the right to pursue restoration. There is no universal requirement for courts or guardians to inform the individual of the right. Individuals who lack suitable resources like social services and dedicated family members may never learn of their right to seek restoration.
Another barrier is providing sufficient evidence to satisfy the petitioner’s burden of proof to show the need for guardianship has ended. The protected individual may not have had the opportunity to exercise self-determination while under the guardianship so there is little history of independent decision-making. Thus, as one expert remarked, “The outcome often hinges on the results of a psychological evaluation based on factors that may have little to do with life skills and the ability to self-determine.”
This study provides an initial examination of the current nature and practice of restoration, but many questions remain. For example, how many petitions are filed and how many result in full or partial restoration? And, to what extent are individuals under guardianship and their families and friends actually aware of the right to restoration and the process in which to pursue it? The preliminary findings uncovered in this study serve as a foundation upon which to continue the pursuit to better understand the practice of restoration in the United States. ■