December 01, 2015

Guardianship & Supported Decision-Making

Erica Wood

(Note: The pdf for the issue in which this article appears is available for download: Bifocal Vol. 35, Issue 6.)

 

Already registered?

You'll be excited to learn of our recently announced lunch-time Listening Session for the White House Conference on Aging.

 

Interested in conference materials?

Email andrea.amato@americanbar.org to be placed on a notification list for when materials are available for pre-order in September.

 

Staff contact

David Godfrey David.Godfrey@Americanbar.org

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 37, Issue 2.)

 

The ABA Commission on Law and Aging is committed to protecting rights in adult guardianship, exploring less restrictive options, supporting choices, ensuring high fiduciary standards, assisting family guardians, and promoting strong court oversight. Here is what we have accomplished in 2015.

Advancing Court-Community Partnerships at the State Level

The Commission plays a proactive role with its 10 organizational partners from the National Guardianship Network (NGN) in advancing reforms in law and practice. In 2015, the Commission coordinated an NGN grant from the State Justice Institute and additional sources to support awards to five states for innovative, consensus-driven Working Interdisciplinary Networks of Guardianship stakeholders (WINGS). These WINGS court-community coalitions in the District of Columbia, Indiana, Minnesota, Mississippi, and Washington can impact the lives of vulnerable individuals through strong collective action. In addition, the Wisconsin Supreme Court created a WINGS group aligned with the NGN replication principles.

These new collaborative guardianship reform groups build on the original four WINGS pilots named in 2013—in New York, Oregon, Texas and Utah. Additional states already have similar guardianship improvement problem-solving groups in Ohio, Missouri and West Virginia. Georgia has just launched a WINGS partnership; and Guam has received State Justice Institute funding to support the Judiciary in WINGS implementation and guardianship training—making a total of 15 WINGS states intensively involved in guardianship reform.

WINGS was a recommendation of the 2011 Third National Guardianship Summit. It is founded on the theory of “collective impact”—that “large scale social change comes from better cross-sector coordination rather than from the isolated intervention of individual organizations (Kania & Kramer, “Collective Impact,” Social Innovation Review, 2011). Bringing stakeholders together in strategic action can give more “bang for the buck” than isolated advocates—which can in turn directly change the quality of life for people who might enter the guardianship system or people already in the system.

A 2015 assessment by the National Center for State Courts found that WINGS “is proving to be a feasible and effective means for addressing the current shortcomings of the guardianship system and process.” WINGS groups have conducted critical outreach on less restrictive decision-making options, including supported decision-making; secured needed assistance for family guardians, and bolstered court oversight. For an introductory video clip on WINGS, see http:// bit.ly/1TbbM6f.

Targeting Change in Specific States

In addition to its work on WINGS, this year the Commission had the opportunity to bolster change in several specific states. We helped the Massachusetts Guardianship Policy Institute in its examination of the unmet need for public guardianship, changes in court monitoring, support for family guardians, and promotion of less restrictive decision-making options—and participated in its broad-based Colloquium in November. We also addressed the first meeting of the new Iowa Supreme Court Guardianship and Conservatorship Reform Task Force in October. And in Virginia, the Commission is working with the Virginia Tech Center for Gerontology on an innovative study of “values histories” in public guardianship cases, funded by the Albert and Elaine Borchard Foundation.

The Commission partners with AARP State Advocacy & Strategy Integration in its support for state AARP state offices on guardianship issues—providing back-up information and technical assistance, as well as review of proposed legislation.

Helping Lawyers to Engage in Supported Decision-Making

Supported decision-making focuses on promoting ways that people with cognitive disabilities can make their own decisions about their own lives, rather than being placed under a guardianship in which a surrogate makes life decisions on their behalf. The U.S. Administration on Community Living designated The Quality Trust for Individuals with Disabilities to establish and operate a National Resource Center on Supported Decision-Making, and the Commission is pleased to be a partner in the five-year National Resource Center project.

In 2015 the Commission and three other American Bar Association entities have been spearheading development of a tool for lawyers on supported decision-making, to spur them to routinely build these principles into their practice, and fully operationalize the concept of “less restrictive options.” We want lawyers involved in guardianship work to ask what else might be tried first, and how people can get the support they might need for increasing self-determination before going the guardianship route. We created a tool called PRACTICAL, an acronym for a nine-step process, along with a checklist and an online resource guide with hyperlinks to resources. Currently 100 attorneys are testing the tool. Their feedback will help to refine the tool before it is finalized and disseminated this Spring.

Restoring Rights for People Under Guardianship

Because guardianship is a substantial intervention resulting in the loss of basic human and civil rights, all individuals deserve an opportunity to have a guardianship terminated and have their rights restored. Yet very little is known about the process of restoration in practice. Last year the Commission completed extensive work on restoration statutory and case law.

In 2015, the Commission won an important grant award from The Greenwall Foundation to begin the first multi-state collection of data from court and guardianship program files on restoration. The Commission is working with the Virginia Tech Center for Gerontology to collect restoration data in four states over a three-year period as well as examining the four most recent files in successful cases. The project plans a roundtable on restoration with recommendations on law, policy and practice in the Fall.

Collaborating on Uniform Laws

During the year, Commission work has addressed two key guardianship acts by the Uniform Law Commission (http://uniformlaws.org). Uniform laws offer valuable models for states grappling with guardianship provisions.

First, this year the Uniform Law Commission initiated a Drafting Committee to revise its Uniform Guardianship and Protective Proceedings Act for the first time since 1997. The Commission was directly involved in the 1997 modification, especially provisions relating to right to counsel for respondents. The Commission is well represented in the 2015 effort by Commission leaders and staff.

The initial Spring Drafting Committee meeting was devoted to a wide-ranging discussion of key issues, such as: use of people-first language; person-centered planning; establishment, termination and modification of orders; performance of guardians and conservators; and guardianship of minors. At the second meeting in October, the Committee made progress on an initial draft of revisions prepared by the Reporter and the Chair, both former Commission members.

The revision will be at least a two-year process. The Drafting Committee is primed to make a great leap forward in guardianship history! Hopefully, the Committee’s work product—or at least selected provisions—will be enacted in many U.S. states.

A second Uniform Law action front for the Commission this year has been resolution of multi-state adult guardianship jurisdictional issues through passage of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. The Act addresses three situations—the transfer of a case to a different state, recognition and enforcement of a guardianship order in another state, and determination of which state will have initial jurisdiction to hear a case if more than one state is involved. The Act saves judicial and family time and expenses, and greatly simplifies multi-jurisdictional cases—without changing substantive state guardianship law, and without cost to the state.

Because it is jurisdictional in nature, the Act can’t work as intended unless it is adopted by all of the states. The Commission works closely with AARP to support the Act’s adoption and use. Currently, a total of 42 states plus the District of Columbia and Puerto Rico have passed the Act, leaving nine jurisdictions remaining.

Tracking State Legislation

If you need to know what legislative changes states have made in adult guardianship this year or in past years, the Commission website is the place to look. Each year the Commission tracks the passage of guardianship legislation, and presents an interim summary as part of the National Guardianship Association’s annual Legal and Legislative Review at the October NGA Conference.

As of December, we found 33 state enactments from 18 states. Texas alone passed a total of 10 bills, including the nation’s first statutory recognition of supported decision-making agreements, as well as a strong emphasis on less restrictive options. Nevada made significant changes, including a licensure requirement. Florida made extensive amendments affecting the selection and authority of guardians. The Ohio Supreme Court approved a long-awaited set of standards for guardians. The 2015 Review is available at http://ambar.org/guardianship.

Where to Go for Further Information

For the latest on all of the above guardianship activities, see the Commission's Adult Guardianship Law and Practice webpage at: http://ambar.org/guardianship

Erica Wood

Erica Wood is Assistant Staff Director at the ABA Commission on Law and Aging in Washington, DC.