Popular Links

    Search

    October 19, 2020

    Guardianship and Supported Decision-Making

    New!

    Newly Updated! Privacy and Confidentiality: Guardianship Statutes and Court Rules (August 2020)

    Guardianship Court Improvement Program - On August 3, the American Bar Association adopted a resolution urging Congress to invest in a Guardianship Court Improvement Program. 

    Selected Issues in Power of Attorney Law (April 2020)

    Elder Abuse Charts -  Visit our Elder Abuse web page under Featured Resources to view recently updated Elder Abuse charts including  State by State Definitions of Abuse and Adult Protective Services Reporting Laws. 

    Supporting Decision Making Across the Age Spectrum-Final Report 

    FAQs by Guardians About the COVID-19 Pandemic How are guardians' responsibilities affected by the pandemic? The National Guardianship Association, the National Center for State Courts, and the ABA Commission on Law and Aging created FAQs to answer your questions. (May 2020)

    Webinar: Reforming Adult Guardianship Through WINGS Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) are ongoing court-stakeholder partnerships to drive changes in guardianship policy and practice, promote less restrictive options , and address guardianship abuse.  Under the leadership of the court, WINGS bring together a multidisciplinary array of stakeholders from diverse agencies to prioritize key issues and work collectively toward their resolution.  In 2016, the American Bar Association Commission on Law and Aging, with the National Center for State Courts, received an Elder Justice Innovation Grant from the U.S. Administration on Community Living (ACL) to establish, expand, and enhance state WINGS.  In this webinar, a panel of representatives from the ABA Commission and state WINGS showcase their work and direct participants to resources and promising strategies. (July 2019)

    Statutory Appeals Provisions in Adult Guardianship chart  States take a variety of approaches to appeals in guardianship cases.  See our updated statutory chart. (July 2019)

    Adult Guardianship Statutory Table of Authorities This updated table includes links to state guardianship statutes. (July 2019)

      Featured Resources

    State Laws & Policy

    I. State Adult Guardianship Legislation: Directions of Reform 

    Contact the Commission on Law and Aging for guardianship law and policy through 2005.

    II. Adult Guardianship State Legislative Charts:

    Core Statutory Charts

    Additional Statutory Charts

    Guardians ad Litem Charts (August 2018)

    ***************************************************************************************

    III. Health Care Decision-Making: A Guardian's Authority

    IV. State Guardianship Statutory Citations

    V. Restoration of Rights for Adults Under Guardianship

    ABA Guardianship Policy

    Please visit the Commission's Policy Page for a listing of Guardianship policy.

    Consensus Conferences

    Third National Guardianship Summit 

    Wingspan—The Second National Guardianship Conference

    Wingspread—The First National Guardianship Conference

    International Guardianship Recommendations

    Guardianship Jurisdiction

    Find out more about the Commission's Guardianship Jurisdiction project.

    Court Volunteer Guardianship Monitoring Handbooks

    Supported Decision-Making

    Guardianship deprives an individual of virtually all legal rights to make decisions and choices. The decision-making ability of persons with disabilities (including older individuals with dementia) is often too quickly questioned and discounted. In many cases, courts appoint guardians for people who could continue to make their own decisions with the right supports and services. The American Bar Association has long been committed to advocating for less restrictive alternatives to guardianship. The ABA Commission on Law and Aging’s PRACTICAL Tool is a guide for lawyers to implement less restrictive decision-making options for persons with disabilities. Traditionally, less restrictive alternatives take the form of surrogate decision-making, with a designated decision-maker making the final decision.

    Recently, supported decision-making (SDM) has emerged as a cutting edge alternative to guardianship, placing the individual with a disability at the center of the decision-making process. Supported decision-making describes the process by which most individuals make decisions - by consulting with friends, family, social services, community organizations, and and/or other sources of support to weigh the pros and cons of a decision, review potential outcomes, and finally make a choice. The practice of supported decision-making takes many forms - from recognition of organic decision-making networks to formal, written supported decision-making agreements.

    SDM is gaining support among practitioners, courts and state legislatures. It has been recognized and endorsed by the Administration for Community Livingof the U.S. Department of Health and Human Services, which funds the National Resource Center for Supported Decision-Making and has gained international recognition, notably in the United Nations Convention on Rights of Persons with Disabilities (CRPD)

    Supported Decision-making Resolution

     In August 2017 the ABA House of Delegates adopted a resolution on supported decision-making as a less restrictive alternative to guardianship.

    Slides and Resources on Supported Decision - Making

    Videos and Publications

    Guardianship Videos

    In Your Hands: The Tools for Preserving Personal Autonomy
    Narrated by the late Helen Hayes, with an epilogue by her son, James MacArthur, this video addresses the legal aspects of planning for incapacity in a clear and positive way, and introduces four legal tools: durable powers of attorney, medical powers of attorney, living wills and trusts. 1994. 19 minutes.

    • List of Guardianship Video Resources This list of state guardianship education and training videos, updated to 2019, includes many that describe or demonstrate duties of guardians and conservators, and some that also explain the process for appointment.” (August 2019)

    Guardianship Handbooks

    • State Guardianship Handbooks  This list includes state guides for adult guardians concerning the adult guardianship process and duties for both guardians of person and guardians of property (frequently called conservators). The guides are by state bar associations, state courts, state agencies, universities, guardianship associations and others. (June 2019)
    • Volunteer Guardianship Monitoring Handbooks
      A concise, four-part handbook on volunteer guardianship monitoring. It guides court staff step by step in developing a volunteer guardianship monitoring and assistance program, recruiting and training volunteers, and compiling community information volunteers will need. Detailed forms and appendices are adaptable locally.  For technical assistance in using the handbooks for your court, contact  Dari Pogach.

    Guardianship Publications

    • Managing Someone Else's Money Guides
      Millions of Americans are managing money or property for a loved one who is unable to pay bills or make financial decisions. Here are four easy-to-understand booklets to help financial caregivers. Written by the Commission and published by the CFPB, the guides are for agents under powers of attorney, court-appointed guardians, trustees, and government fiduciaries (Social Security representative payees and VA fiduciaries).
    • Guardianship After 25 Years: In the Best Interest of Incapacitated People?
      by Pamela Teaster, Erica Wood, Winsor Schmidt, and Susan Lawrence
      This report includes extensive site visit studies of seven programs; an update on state models of public guardianship or guardianship of last resort; conclusions and recommendations, a model public guardianship act; statutory and programmatic profiles of each state's system of public guardianship or guardianship of last resort; and statutory charts. 203 pp. Jan. 2008. Executive summary.
    • State-Level Guardianship Data: An Exploratory Survey
      by Erica Wood
      Guardianship is a critical protection for at-risk, frequently elderly individuals. However, it is also a drastic intervention in which the guardian is given substantial and often complete authority over the lives of vulnerable wards, and press accounts have detailed significant instances of malfeasance and exploitation. Aug. 2006. 
    • Guardianship Monitoring: A National Survey of Court Practices
      by Naomi Karp and Erica Wood
      This report by AARP’s Public Policy Institute, in collaboration with the ABA Commission on Law and Aging, explores court oversight of guardians, appointed when an adult lacks capacity to make decisions for him or herself. The paper reports the findings of a 2005 national survey of 387 experts. June 2006.
    • Judicial Determination of Capacity of Older Adults in Guardianship Proceedings
      by the ABA Commission on Law and Aging, American Psychological Association, and National College of Probate Judges
      This book contains practical tools to equip a wide audience of judges to conduct any form of guardianship proceeding more effectively, improve communication with healthcare professionals, creatively use less-restrictive alternatives and limited guardianships, and accommodate disabilities of older adults in ways that will enhance capacity. 2006. ISBN 978-1-59031-764-8. Product Code: 4280026.

    Wards of the State: A National Study of Public Guardianship

    • by Pamela B. Teaster, Erica F. Wood, Naomi Karp, Susan A. Lawrence, Winsor C. Schmidt, Jr., and Marta Meniondo. 
      This report marks the first nationwide examination of public guardianship in 25 years--since the landmark study by Prof. Winsor Schmidt and colleagues, Public Guardianship and the Elderly, published in 1981. The report is the result of a comprehensive review of existing literature and law, a national survey of key contacts in all 51 jurisdictions concerning public guardianship programs and practices (with a 100% response rate), in-depth interviews in seven states, and extensive site visits in three states (Florida, Kentucky, Illinois). April 2005. Executive Summary.
    • Good Guardianship: State Court Partnerships with the Aging Network
      These brochures encourage collaboration in guardianship practices between the court system and the aging network. The idea is that by working together, courts and aging organizations— such as agencies on aging, adult protective services (APS), and long-term care ombudsmen—can tackle some of the difficult barriers to good guardianship practice in a cost-effective way. The objective is to get courts and service providers or advocates in the aging field talking to each other about specific constructive improvements in guardianship in their area.

    Articles

    Additional archived articles on Guardianship and Supported Decision Making available on request.

    Reprint Requests

    All ABA content is copyrighted and may be reprinted and/or reproduced by permission only. In some cases, a fee may be charged. To protect the integrity of our authors’ work, we require that articles be reprinted unedited in their entirety. To request permission to reprint or reproduce any ABA content, go to the online reprint/reproduction request form.