Uniform Laws Update

Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

 

The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act

The Uniform Law Commission (ULC) approved the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (the Act) at its 2017 Annual Meeting in San Diego, California, in July. The Act updates and replaces the Uniform Guardianship and Protective Proceedings Act (UGPPA), which was originally promulgated in 1969 as part of the Uniform Probate Code. The UGPPA was then released as a separate act and significantly revised in 1982 and 1997. About 20 states adopted some version of the UGPPA. Since the UGPPA’s last amendment, much has changed in the laws applicable to guardianships and conservatorships, and so significant changes were required to modernize, simplify, and strengthen the ULC’s law in this area.

The use of terminology to describe guardianships and conservatorships varies considerably from state to state. In the Act, the term “guardianship” refers to the situation in which a court appoints a person (the guardian) to make decisions for an individual regarding that individual’s personal affairs. Act § 102(9). The term “conservatorship” refers to the situation in which a court appoints a person, the conservator, to make decisions regarding an individual’s property or financial affairs. Id. § 102(5). The “other protective arrangements” in the Act refer to court-ordered measures protective of individuals or their property other than guardianships or conservatorships. Id. § 102(23)–(25). The term is intentionally broad and includes many types of protective arrangements, such as court orders regarding single issues and plans for supported decision making.

Shaping the New Act

In 2014 the ULC appointed a Drafting Committee to Revise or Amend the UGPPA. In addition to modernizing and simplifying the law, another primary goal was to incorporate some of the recommendations from the Third National Guardianship Summit (NGS), held in October 2011 at the University of Utah. David M. English, William Franklin Fratcher Professor of Law at the University of Missouri, served as chair of the drafting committee, and Nina A. Kohn, Associate Dean for Research and David M. Levy, L’48 Professor of Law at Syracuse University, served as the reporter. The committee spent two years drafting and discussing the new legislation, assisted by advisors from the ABA, representatives from groups like the National Guardianship Association, AARP, and the National Academy of Elder Law Attorneys, and other experts on the laws governing guardianships and conservatorships.

What Is New in the Act

Although the 1997 revision of the UGPPA focused on providing rules governing the creation of guardianships or conservatorships, this version of the Act provides additional guidance to all parties involved after the guardianship, conservatorship, or other protective arrangement is established. Because an individual’s rights to make decisions about personal or financial affairs are at stake, it is important that the laws governing guardianships, conservatorships, and other protective arrangements provide adequate protections and guidance to all involved throughout the process. To that end, the Act is designed to make these laws easier to understand and manage, as well as more protective and respectful of individuals and their property.

In addition to attorneys who practice in this area of the law, the protected individuals and their friends and family need to be able to understand their rights and responsibilities, to the extent possible. The Act represents, in part, a reorganization of prior laws to increase clarity and ensure that all parties better understand the process. The Act also incorporates the person-centered philosophy advocated by the NGS by providing guidance to guardians and conservators on how to facilitate person-centered planning. The Act also calls for petitions for protective arrangements to include additional information to ensure that judges have adequate information to make appropriate decisions.

In addition to making this area of the law easier to understand, the Act adds many provisions that are more protective and respectful of individuals subject to guardianship or conservatorship and those alleged to need a guardian or conservator. The terminology used to describe individuals subject to guardianship or conservatorship is updated and modernized to reflect a person-first approach. The Act also includes several provisions to encourage the use of the least restrictive means to safeguard the interests, rights, and property of an individual subject to guardianship or conservatorship, including a provision to affirm that courts can enter orders for protective arrangements other than guardianship or conservatorship. The Act adds new model forms for use by petitioners and courts that are designed to encourage the consideration and implementation of alternatives to full guardianship or conservatorship by asking for an explanation if it is claimed that the alternatives are insufficient. The Act adds provisions to ensure that individuals subject to guardianship or conservatorship receive meaningful notice of their rights and additional guidance on how to assert these rights. The Act also encourages and protects the rights of individuals subject to guardianship or conservatorship to be involved in decisions about their lives, including an increased focus on the right of an individual subject to guardianship or conservatorship to visit and communicate with third parties. Further, to ensure compliance with fiduciary duties as well as to protect against exploitation, the Act contains provisions to ensure that courts can better monitor guardians and conservators.

In short, the Act is an important step forward in ensuring that guardianships, conservatorships, and other protective arrangements are easier to understand and manage, as well as more protective and respectful of the individuals involved and their property.

The final version of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act is available now on the ULC web site (www.uniformlaws.org) and will be available for consideration by state legislatures beginning in 2018.