February 01, 2017

A Survey of Privacy Protections in Guardianship Statutes and Court Rules

Erica McCrea

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 38, Issue 3.)

 

Adult guardianship can remove important, fundamental rights – and also can subject individuals to a loss of privacy about financial, health, mental health, and other sensitive personal information. Guardianship is a court proceeding – and as such, hearings and records are open to the public unless there are provisions to protect privacy. Without such protections, court information may be available for public consumption – opening the door to possible identity theft, scams, and fraud – particularly with the potential for putting more guardianship information and documents online. Moreover, allowing strangers access to personal information adds trauma to an already incredibly trying situation. Thus, it is important to provide for protection of information about an individual subject to the guardianship process. As with other elements of guardianship law, the lack of uniformity makes assessment of privacy protections difficult.

This article is a summary of research examining statutes, court rules, and administrative rules. The survey focuses on statutory provisions and attempts to draw a distinction between those privacy provisions found within guardianship statutes themselves, and those found within rules. The survey covers four categories, including privacy provisions in statutes which provide complete protection, provisions which provide partial protection, and provisions which provide protections for hearings. Finally, this article examines relevant administrative and court rules which may supplement a state’s guardianship statutes.

Full Protection

These protections typically seal any record of the guardianship in its entirety. This includes any documents or records of the hearings. Currently, only thirteen states have statutory provisions providing this level of protection. Often, these provisions are conditioned upon a finding that the guardianship is unnecessary, or that a proceeding to institute guardianship was malicious. Florida, Tennessee, and Vermont each have similar provisions requiring sealing the record if no guardian is appointed. Only a few states have statutes which call for a sealing of the record.

Examples

Upon finding that a petition under this chapter was malicious, frivolous, or without just cause, the court may order that all information contained in the court records relating to the proceeding be sealed and that the information be disclosed only upon court order for good cause shown. Alaska Stat. Ann. § 13.26.013(b).

Upon filing of a petition requesting appointment of a guardian or conservator, all pleadings, exhibits and other documents contained in the court file shall be considered confidential and not open for public inspection, either during the pendency of the case or after the case is closed. The protected person, and his or her attorney, may inspect or copy the file. Another party may file a petition . . . and, upon good cause shown, the court or mental hygiene commissioner may authorize the party, or his or her attorney, to inspect and copy the file. W. Va. Code Ann. § 44A-2-5.

Partial Protection

Rather than sealing a record in its entirety, these types of provisions make certain parts of the record confidential. Conversely, these provisions may allow public access to only orders of appointment acknowledging guardianship. Roughly half the states have some provision limiting public access to the record. Documents typically included in these provisions are medical records, visitor’s reports, orders of appointment, annual reports, and financial reports. In California for example, reports recommending guardianship and annual status reports are confidential except to parties and their attorneys.

Examples

All the records relating to any minor or adult guardianship or conservatorship that is granted under this title shall be kept sealed, except for a record of the names and addresses of the minor, ward, and guardian or conservator and their legal counsel of record and the date of filing, granting, and terminating the guardianship or conservatorship. Ga. Code Ann. § 29-9-18(a).

Records, reports, and evidence submitted to the court or recorded by the court shall be confidential. N.H. Rev. Stat. Ann. § 464-A:8(VI).

Hearings Protection

Most states also provide privacy protection for any hearings held under guardianship statutes. In nearly all states, the hearing to determine guardianship may be closed at the request of the respondent, their attorney, or guardian ad litem. The hearing may also be closed, and opened only upon request.

Examples

The issue [of the person’s incapacity] may be determined at a closed hearing if the person allegedly in need of protection or that person’s counsel so requests. 20 Pa. Stat. and Cons. Stat. Ann. § 5511(a).

The hearing may be closed to the public and without a jury unless the alleged incapacitated person or his counsel objects. The hearing shall be closed and with or without a jury if the person alleged to be incapacitated or his counsel so requests. Ariz. Rev. Stat. § 14-5407(D).

Rule-Based Protection

Finally, many privacy protections exist within court rules or administrative rules. Protection provided by rules varies from redaction of basic personal information to complete exemption from state public access laws. Thirty-three states currently have some form of rule-based protection, making rule-based privacy provisions the most common of the types of provisions discussed in this article. Typically, basic redaction rules cover information such as Social Security numbers, financial account numbers, birthdates, and other identifying information. However, these rules may not be strictly enforced, and usually parties bear the responsibility of ensuring this information is redacted. Rule-based protections may also provide the type of partial protection above, including privacy of medical records, visitor’s reports, and other select documents from guardianship proceedings. In a few states, guardianship statutes are exempted from public access entirely. Examples of this diverse coverage of rule-based protections include Hawaii, Delaware, Colorado, and Indiana.

Examples

Matters docketed as Civil Miscellaneous (C.M.) actions including, but not limited to, guardianships, and associated miscellaneous petitions are confidential and not subject to public disclosure or access by the general public. Del. Ch. Ct. R. 90(a).

For good cause shown, the court may order a file to be placed under security, in which event the clerk of the court shall maintain it in an appropriate security file. Files kept under security may be examined only by counsel of record unless otherwise ordered by the court. Colo. R. Prob. P. 20.

Conclusion

It seems that guardianship statutes have yet to modernize. While clear privacy provisions regarding hearings, medical evaluations, and visitor’s reports may have been adequate in the analog age, widespread mandatory use of electronic filing systems within the courts has changed the way the public accesses information; easy access to court documents creates a significant privacy concern for protected individuals. States have developed a complex relationship of statute and rule to address this concern, and several states have filing rules which directly address privacy in guardianship proceedings.

Guardianship is very jurisdictional, and the protection available depends on the state. A uniform privacy provision would address the lack of substantive privacy provisions within statutes themselves, and avoid any potential confusion arising from the scattered sources of privacy protections. Still, given the states’ panoply of approaches, adoption of a uniform provision is unlikely. Practitioners should conduct a thorough review of a state’s statutes and rules to provide those facing guardianship the most comprehensive privacy protection possible. Due diligence will go a long way in providing the dignity and respect that every person, protected or otherwise, deserves.

To access a reference chart of the individual state provisions discussed in this article, including citations for each provision, visit the Commission’s website at http://ambar.org/guardianship. ■

Erica McCrea

Erica McCrea is a second-year law student at The Catholic University of America, Columbus School of Law in Washington, D.C. Ms. McCrea received her B.A. in English from Charleston Southern University in Charleston, S.C. Following her first year of law school, Ms. McCrea worked as an enforcement intern in the Washington Field Office of the EEOC. There she conducted intake and evaluation of charges under discrimination statutes including Title VII, the ADA, and the ADEA. She was a Fall 2016 extern with the Commission.