August 26, 2020 Guardianship

Rights of Persons Under Guardianship

By Michael A. Kirtland

Guardianship proceedings have become a common way of dealing with individuals who have lost capacity as a result of dementia, strokes, physical accidents, and numerous other situations which have resulted in their loss of the ability to care safely for themselves. Unfortunately, the court monitoring of such guardianships varies widely from state to state. (“Guardianships” go by a variety of names depending on the state of residence. Terms such as “guardianship,” “guardian of the person,” and “conservator of the person” all refer to what, for our purposes we refer to as “guardianship.” A “guardianship” for our purposes is a court-imposed appointment of an individual, the “guardian,” who is legally responsible for the health, safety, and management of an individual whom the court has determined lacks mental capacity to care for themselves.) This is a responsibility for the person, as opposed to a “conservatorship,” a court appointment of an individual to manage the assets of an individual who lacks capacity to manage those assets. In recent years a number of guardianship situations have made national and local headlines due to family feuds over the guardianship and the conditions under which the guardianship is handled. The well-known radio host, Casey Kasem, and well-known actors Peter Falk and Mickey Rooney, have faced such situations in which accusations have been made about their treatment, access to family members, and other factors surrounding their guardianship situations have been publicly and legally challenged. The result of these and many less well-known cases have fueled a movement in many states towards the passage of what are commonly known as Guardianship or Ward’s Bills of Rights.

Since 2015, at least 18 states have passed legislation on the rights of individuals under guardianship.

Since 2015, at least 18 states have passed legislation on the rights of individuals under guardianship.

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As attorneys practicing guardianship law, we often see abuses of the rights of protected persons (persons under guardianship or conservatorship). But, for family members, this issue is quite personal. While many of the efforts to pass such legislation are well intended, unfortunately we also see individuals who are the abusers of such incapacitated person’s rights, and who have lost the legal battle for control of such incapacitated individuals, press for legislation which would allow them to continue the fight over the protected person.

Since 2015, at least 18 states have passed legislation to focus on the rights of individuals under guardianship, while others with existing laws have modified and strengthened those laws.

Traditionally, appointment of a guardian passes all of the legal rights of the incapacitated person to the control of the guardian. But anecdotal evidence has shown that guardians, either well-meaning or for personal gain, have restricted the protected person’s access to their family through communications, visitations , or other similar concerns. Where the protected person resides in a residential facility, because of the court appointed status of a guardian, such facilities often respect the direction of the guardian, regardless of whether it appears to be in the best interest of the protected person.

There are good practical standards for being a guardian. The National Guardianship Association has developed and published the National Guardianship Association Standards of Practice. While these are not binding on state or federal courts, they are often seen as a reasonable guideline for the behavior of guardians and have been cited by courts throughout the nation for well managed guardianships.

State legislation regarding the rights of protected persons regularly contain language which requires the guardian to permit visitation, communication, and contact between the protected person and his or her family. Generally, this is true unless there is evidence presented to the court clearly establishing it is not in the protected person’s best interest to have such contact, such as where the family member is the physical abuser or financial exploiter of the protected person. Some state’s legislation places the determination as to restricting visitation with the guardian, while other state’s laws leave this decision in the hands of the court. Florida, for example, leaves the determination of visitation in the hands of the protected person, while giving the guardian the right to decide social environment questions. Minnesota and Texas laws provide all rights not specifically granted to the guardian, remain the rights of the protected person. In most cases, if the guardian believes the protected person is harmed by visitation with specific individuals, the guardian can ask the court to restrict such communication.

To harmonize the various state laws, the Uniform Law Commission in 2017 drafted a model law on guardianship known as the “Uniform Guardianship, Conservatorship and Other Protective Arrangements Act,” updating and replacing the prior 1997 version of its model guardianship law. This Act much more thoroughly spells out the rights of the protected person and the boundaries placed upon the guardian. It provides the right of the protected person to notice of their right to communicate with, visit, and have other interactions with individuals. (Section 311(b)(6).). It further prohibits the guardian from restricting such visitation unless that restriction is authorized by the court, either through the guardianship proceeding or some other protective order. To obtain and enforce such restriction the guardian must demonstrate a risk of physical, psychological, or financial harm. Without a court order, such restriction is limited to seven days if the alleged perpetrator has a family relationship with the protected person, and to 60 days if there is no such relationship. (Sections 31 and 315). After such time periods, the guardian needs to have a court order.

If the guardian abuses the restriction rights granted by law, family members can petition the court having jurisdiction over the guardianship to permit such visitation, despite the actions of the guardian. In Texas, adult children of the protected person have standing to file such an action, while in Florida a broader standard of being an “interested person” has such rights.

One grey area is the involvement of nursing homes restricting visitation rights. While federal law says the nursing home cannot prohibit such visitation, numerous cases have occurred in which, at the direction of the guardian, the nursing home has participated in visitation restriction, even threatening or banning the attempted visitor from the facility. Under federal law it is the protected person/nursing home resident who has the right to terminate the right of visitation. Nevertheless, the question exists (and the answer varies from state to state) as to whether such right transfers to the guardian if a guardianship is ordered. The result is one must look to state law as to how this situation is legally resolved. It is a wise course of action for the lawyer presented with this situation to consult with an experienced elder law attorney to resolve the rights of the guardian, the protected person and family members, or other interested persons.

The American Bar Association has passed a resolution urging the Congress to develop a Guardianship Court Improvement Program, with funding to the states for implementation.

Typical Bill of Rights provisions for protected persons include: (recognizing that state laws and wording varies):

  • Right to dignified treatment;
  • Consideration of the protected person’s previously stated desires, religious beliefs, and family interactions;
  • Permitting the protected person input into and control over their situation to the extent possible;
  • The right to petition the court concerning a guardian’s actions;
  • Privacy concerns of the protected person;
  • Unrestricted communication and visitation with people of the protected person’s choice; and
  • Representation by an attorney, often even where the person has been declared incapacitated.

Traditional American law has viewed the rights of an individual to be unrestricted, unless such restrictions are ordered by a court. Being an adult in America is the right to make your own decision. But, sadly, sometimes the mental acuity of an individual is diminished by a variety of factors, whether controlled by the individual or not, such as dementia, drug use, physical injury, and other factors. Guardianship is the historical avenue to protect a person’s health, safety, and environment such that they can be safely cared for. Unfortunately, also traditionally, the approach to such protected proceedings has been to give the guardian unrestricted control of the protected person, essentially transferring all of the rights of the protected person to the guardian. The more modern trend to is recognize that capacity is not an on/off light switch, but a customizable dimmer switch, and to reserve to the protected person those rights which they are still able to handle, even given their diminished mental capacity. The protected person’s bill of rights laws in the various states are an attempt to reconcile the historical total restriction upon the individual and transfer of such rights to the guardian, with the recognition that even persons suffering incapacities should be permitted to direct their own destiny to the extent possible, and to permit family members a role in that path.

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Author

Michael A. Kirtland is a partner in the law firm of Kirtland & Seal LLC, in Colorado Springs, CO.  He concentrates his practice in elder law, trust and estates, probate and ethics and mediation. He is a former council member of the Senior Lawyers Division, and currently is chair of the SLD Ethics Committee. He previously served as chair of the ABA Real Property, Trust and Estates Section’s Elder Law and Special Needs Planning Group. He is a past-chair of the Colorado Bar Association’s Elder Law Section.  He is a Certified Elder Law Attorney and a registered mediator with the Alabama State Bar.  He holds a J.D. from Faulkner University and an LL.M. in tax from the University of Alabama.