August 26, 2020 Guardianship

Clarity and Stability: Are They Achievable Goals in the Area of Guardianship Law?

By Karren J. Pope-Onwukwe

Can you imagine how you would feel if your mother’s health is failing and you and your siblings are informed that the only legal recourse you have is a legal guardianship? You step up to the plate and volunteer to become guardian of property for your mother, only to be informed that you may not serve in that capacity because you do not reside in the same state as your mother. Or, imagine that you are your mother’s legal guardian and, because of a job transfer you must pack up and move out of state only to find that your guardianship is not recognized in your new state and you must file for a guardianship in the new state? Frustration, anxiety, even anger at what should be an orderly process to obtain authority over a person in need of assistance can occur all too frequently from state to state and indeed in some instances from county to county in guardianship/conservatorship matters. As more and more people utilize guardianship/conservatorship law to assist family members and friends in managing their property, there have been some highly publicized egregious cases highlighting abuse, lack of oversight, and lack of basic practice standards in the area of guardianship/conservatorship law.

This discreet area of law began as a jumble of state laws and local practices.

This discreet area of law began as a jumble of state laws and local practices.

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In an effort to seek clarity and stability in this area of law, in 1969 the National Conference of Commissioners on Uniform State Laws (“Uniform Law Commission”) introduced the first uniform law on guardianship (which was revised in 1982 and 1997). Recognizing this discreet area of law was a jumble of state laws and local practices, in 2011 the National Guardianship Network held a summit with representatives from twenty national organizations “concerned with the issues of aging, intellectual impairments, mental illness, and the effective practice of guardianship law.” Based on the summit recommendations the Uniform Law Commission convened a study group and in 2014 approved a drafting committee. In 2017, after two years of drafting, the final product became known as the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (“UGCOPAA”). In 2018, the U.S. Senate Committee on Aging recommended that all state legislatures adopt the UGCOPPA, the rationale for this recommendation was included in committee’s report, “Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans.”

In 2019, the American Bar Association Commission on Law and Aging (“COLA”) released their annual report, State Guardianship Legislation Summary: Directions of Reform -2019, that showed a marked increase in states enacting laws to improve their guardianship/conservatorship codes, “58 enactments from 33 states, as compared with 29 enactments from 18 states in 2018.” According to the Uniform Law Commission, 19 states have adopted some form of the UGCOPPA. This reform movement is being pushed forward by the alliance between advocates for the elderly and advocates for people with disabilities. Both groups share a desire to enhance the quality of life and independence for people who in the past have been ignored, as COLA states in its report, “[t]he real challenge lies in turning good law into good practice.”

Article 1 of the UGCOPAA deals with all types of court proceedings and provides definitions and has become a driving force behind “Protective Arrangements,” a term used to describe less-restrictive alternatives to guardianships and conservatorships. This term refers to a court’s ability to craft an arrangement that is custom made for the individual in need of assistance instead of being forced to decide on the most restrictive form of intervention available: guardianship or conservatorship. The term “Supported Decision Making” is defined in the Act as a tool to be used to help people understand and make their own decisions. In their 2018 issue brief for the National Center on Law & Elder Rights entitled, “Guardianship Termination and Restoration of Rights” Erica Wood and Dari Pogach of COLA provide examples of restoration of rights cases where supported decision-making allowed individuals to come out from under a court imposed guardianship or conservatorship and regain control of their life.

Article 2 of the UGCOPAA deals exclusively with guardianship of minors and the conflicts that can occur between custody and guardianship. Article 3 focuses on adults that are in need of assistance and attempts to discourage the use of “capacity” as a reason for a court to impose a guardianship. A court is asked to use a standard of clear and convincing evidence to determine, “(1) the adult cannot meet essential requirements for physical health, safety, or self-care; (2) guardianship is the least restrictive approach to meeting the adult’s identified need; and (3) the adult cannot receive and evaluate information or make or communicate decisions even with appropriate supportive services, technological assistance, or supported decision making.” This is a paradigm shift for most guardianship hearings that are carried out in a perfunctory manner without the parties even attempting to craft a response that is focused on the specific needs of the individual that is the subject of the proceedings and take into consideration his or her right to personal liberty.

Article 4 discusses conservatorships for minors and adults since some jurisdictions use this terminology when appointing someone to manage money or property instead of “guardian of property.” Article 5 is a new section of the UGCOPAA which creates alternatives to guardianships and conservatorships. It sets out alternatives the court may place in an order that is “precisely tailored to the individual’s circumstances and needs, and that is limited in scope and, potentially, duration.” It is a delicate balance between protecting a person from financial exploitation without restricting a person’s liberty by imposing the most restrictive form of intervention available to the court such as guardianship or conservatorship. Article 6 provides sample forms, which though not required to be used, are included to help parties involved in a matter comply with the spirit and goals of the Act. There are also forms to help a judge write an order granting or denying a guardianship/conservatorship or protective arrangement. Article 7 is a miscellaneous section whose purpose is to ensure uniformity of the law as it is enacted in different states.

Once a guardianship or conservatorship is ordered, the court may find itself being used as a “referee” stepping in to manage fights between the parties involved. The UGCOPAA has tried to avoid these conflicts and burdens on the judicial system by: (1) requiring a person-centered plan that honors a person’s preferences and values; (2) establishing an express decision-making standard which clarifies that a guardian/conservator must always act for the benefit of the person subject to the guardianship/conservatorship as well as include them as much as possible in decision-making; (3) provide enhanced notice to interested persons that may serve as an extra set of eyes and ears for the court; (4) allow guaranteed visitation and communication by not restricting visits or communications from family and friends for more than seven days or from the general public for more than sixty days without a court order; (5) requiring a less-restrictive alternative be ordered such as single transactions, technological assistance or assisted decision-making, if possible; and (5) allows for enhanced procedural rights such as a right to an independent attorney. These provisions of the UGCOPAA help with the common place situations that arise in a guardianship/conservatorship as well as help monitor and prevent some of the most egregious acts perpetrated by bad actors.

Finally, the UGCOPAA has attempted to change the terminology used in guardianship/conservatorship matters such as “ward,” “incapacitated person” and “disabled person.” The preferred language is “respondent” for initial court filings and “person subject to guardianship.” These terminology changes allow a person hopefully to be seen and heard in a hearing that centers around their access to justice to secure their liberty. There is a seminal case in Maryland (in re Sonny E. Lee, 132 Md. App. 754 A2d 426 (2000)) that illustrates how messy a guardianship/conservatorship case can be and how it can tear a family apart when family members are in the heat of battle. In this case two brothers, their sister, and the ex-wife were all involved in a guardianship battle over a 69 year old gentleman, Sonny Lee. The case was appealed to the Court of Special Appeals mainly because of ambiguity in the law. This is no way to administer justice. Guardianship/conservatorship cases should be treated with the care and attention that they deserve and not as family squabbles to be dismissed out of hand. There is a need for clarity and stability in guardianship/conservatorship law so that family, friends, attorneys, the court, and most importantly the person that is the subject of the hearing are assured full access to justice when they appear in a court of law.

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Karren Pope-Onwukwe is a prominent elder law and disability rights attorney, bar leader and community activist; her practice is centered around helping clients plan for aging, disability, and wealth transfer. Attorney Pope-Onwukwe also serves as General Counsel to small and non-profit business entities and towns. Attorney Pope-Onwukwe is the editor of the 2010 edition of Practical Aspects of Adult Guardianship published by the Maryland Institute for Continuing Professional Education of Lawyers.