2018 Adult Guardian Legislation: Directions of Reform
This 2018 legislative summary includes information on 39 state enactments from 22 states on adult guardianship, as compared with 49 enactments from 25 states in 2017.
Inventory Requirements in Adult Guardianship Statutes (August 2018)
Five Guardianship Core Statutory Charts- The ABA Commission and Sally Balch Hurme have updated the five guardianship “core statutory charts” These charts cover capacity definition and initiation of proceedings, representation and investigation, notice, conduct and findings, and monitoring. Please let us know if there are any additional updates. (August 2018)
This new Legislative Fact Sheet on Guardianship and the Right to Visitation, Communication, and Interaction, which was made possible with generous support from the Borchard Foundation Center on Law and Aging, offers assistance to lawyers, bar associations, allied professionals, legislative staff, and advocates to make policy recommendations, improve practice, and raise professional awareness about visitation and guardianship.
This chart on Least Restrictive Alternative References in State Guardianship Statutes is current as of June 2018. (By Haldan Blecher, CUNY School of Law, Class of 2019)
This new chart on State Statutes or Court Rules on Guardianship Complaint Processes shows how seven states address complaints by individuals subject to guardianship or by others about the performance of guardians, through December 2017.
New ABA Resolution: ABA adopts Commission on Law and Aging/Commission on Disability Right's Resolution to strengthen safeguards for beneficiaries of Social Security's representative payee program.
Updated Background Check Chart: Criminal and Credit Background Checks for Guardians (by Sally Balch Hurme, March 2018)
Updated State Certification Chart This updated chart by Sally Balch Hurme gives a state-by-state look at guardian certification, through May 9 2018.
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.
Restoration of Rights in Adult GuardianshipThe ABA Commission, with the Virginia Tech Center for Gerontology, has released a new report with recommendations on Restoration of Rights in Adult Guardianship.
PRACTICAL Guide--A Guardianship Practice Tool
This resource guide aims to help lawyers identify and implement decision-making options for persons with disabilities that are less restrictive than guardianship. “PRACTICAL” is an acronym for nine steps lawyers can use in case analysis to identify legal and practical approaches to heighten self-determination before moving ahead with guardianship.
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
- Capacity Definition & Initiation of Guardianship Proceedings (August 2018)
- Representation and Investigation of Guardianship Proceedings(August 2018)
- Notice in Guardianship Proceedings (August 2018)
- Conduct and Findings of Guardianship Proceedings (August 2018)
- Monitoring Following Guardianship Proceedings (August 2018)
Additional Statutory Charts
Inventory Requirements in Adult Guardianship Statutes (August 2018)
Guardians ad Litem Charts (August 2018)
- Full Statutory Chart
- State Statutory Duties of Guardians ad Litem
- State Statutory Duties of Court Visitors
- Guardians ad Litem vs. Court Visitors
- Least Restrictive Alternative References in State Guardianship Statutes (June 2018)
- State Statutes or Court Rules on Guardianship Complaint Processes (December 2017)
- Privacy and Confidentiality: Guardianship Statutes and Court Rules (December 2016)
- Selected Issues in Power of Attorney Law (December 2016)
- Limited Guardianship of the Person and Property (August 2016)
- Role of Clinical Evaluation Professionals in Adult Guardianship Proceedings: Survey of State Statutes (July 2016)
- Standards of Practice for Guardians (by Sally Balch Hurme, January 2016)
- State Guardian Certification Chart (by Sally Balch Hurme, May 9, 2018)
- Criminal and Credit Background Checks for Guardians (by Sally Balch Hurme, March 2018)
- Relationship Between Adult and Minor Guardianship Statutes (July 2015)
- State Statutory Provisions on Residency of Guardians (February 2015)
- Emergency Guardianship (December 2014)
- Conservatorship and Guardianship Bonds: State Statutory Requirements (April 2014)
- Statutory Appeals Provisions in Adult Guardianship (August 2013)
- Restoration Procedures (June 2013) (and accompanying paper)
- Guardian Authority for Residential Decisions (August 2010)
III. Health Care Decision-Making: A Guardian's Authority
- Health Care Decision-Making Authority: Health Care Agents vs. Court Appointed Guardians (50-state chart)
- Health Care Decision-Making Authority of Guardians and Agents
This Bifocal article provides a brief update on the statutorily established health care decision-making authority of each state. Additionally, the article highlights the growth of decision-making standards for court-appointed guardians with health care authority and emphasizes that patient-appointed health care agents should be the final authority on an incapacitated individual’s health care. The two charts below accompany the article:
IV. State Guardianship Statutory Citations
- Statutory Table of Authorities (April 2014)
- State Public Guardianship and Guardianship of Last Resort Citations (June 2016)
- Terminology for Protected Person in State Adult Guardianship Statutes (November 2014)
V. Restoration of Rights for Adults Under Guardianship
- A Bifocal article on the restoration of rights for adults under guardianship is available.
- A chart analyzing the elements of each case is also available for download.
ABA Guardianship Policy
Please visit the Commission's Policy Page for a listing of Guardianship policy.
Third National Guardianship Summit
- Third National Guardianship Summit Standards and Recommendations
- An International Resource Library composed of materials from the Congress is now available.
Wingspan—The Second National Guardianship Conference
- Conference Introduction and Keynotes
- Action Steps on Adult Guardianship Progress (National Wingspan Implementation Session)
Wingspread—The First National Guardianship Conference
International Guardianship Recommendations
Find out more about the Commission's Guardianship Jurisdiction project.
Court Volunteer Guardianship Monitoring Handbooks
Find out more about the Commission's Volunteer Guardianship Monitoring Handbooks project.
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)
Slides and Resources on Supported Decision - Making
- Supported Decision Making in Later Life by David Godfrey and Jonathan Martinas
- Supported Decision - Making How SDM Works for Older Adults by David Godfrey
- Overreach by Fiduciaries - Is Supported Decision-Making Part of the Answer? by David Godfrey
- Supported Decision Making in Later Life by David Godfrey
- In addition, the ABA Commission on Disability Rights has a comprehensive resource list.
Videos and Publications
- 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 (As of August 2010)
- State Guardianship Handbooks
- 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 Erica Wood.
- 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).
- WINGS Tips: State Replication Guide For Working Interdisciplinary Networks Of Guardianship Stakeholders
This publication, produced by the Commission on behalf of the National Guardianship Network, highlights the hallmarks of successful WINGS groups and outlines ten steps for launching and maintaining your own WINGS program.
Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) are broad-based, collaborative working groups that drive changes that affect the ways courts and guardians practice, and improve the lives of people who have or may need guardians.
The National Guardianship Network (NGN) has developed a video introduction, “What is WINGS” by District of Columbia Chief Judge Eric Washington, to improve state adult guardianship practices through collaborative court-community partnerships. The five-minute video is a lead-in to the NGN Replication Guide for WINGS (Working Interdisciplinary Networks of Guardianship Stakeholders). Visit the NGN website to find the video and a link to the Replication Guide.
- 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.
Additional archived articles on Guardianship and Supported Decision Making available on request