Should Plenary Guardianship Be Ended?

If your law practice includes adult guardianship, you have probably heard discussion about “plenary vs. limited” orders. That is, a plenary or general court order for guardianship, in aiming to protect the individual, removes virtually all a person’s decision-making rights and transfers them to a guardian. The guardian stands in the shoes of the person under guardianship and makes decisions for them. A limited order is generally more nuanced and targeted. It transfers decision-making rights to the guardian only in those areas in which a court finds the adult is unable to make or communicate informed decisions. A limited order aims to leave the person with more independence and choice. Petitioners who may not understand the above distinction may be advised to ask for a plenary order for reasons of administrative convenience or to avoid having to go back to court (possibly at a considerable expense) if conditions worsen and the person’s needs increase.

The 2021 Fourth National Guardianship Summit recommended that “States should eliminate plenary guardianship, allowing people to retain the maximum of rights, and if guardianship is imposed, require tailored guardianship orders in all cases.” This recommendation may be startling to many guardianship stakeholders. After all, while we have very little data, we know anecdotally that most guardianships are plenary or full guardianships, with the individual retaining very little or no decision-making authority. The imposition of plenary guardianships occurs even though many state statutes provide for, or prefer, a limited guardianship option and encourage fashioning the least restrictive remedies. Ending plenary guardianship would require considerable changes in practice for judges, attorneys, guardians ad litem, court investigators, and other court personnel. 

After the 2021 Summit, the American Bar Association created an ABA Guardianship Working Group to follow up on the progress in implementing the Summit recommendations and to exchange information on key aspects of the guardianship process. The Working Group includes representatives from several key ABA groups—Civil Rights & Social Justice Section, Commission on Law and Aging, Senior Lawyers Division, Commission on Disability Rights, and Real Property, Trust & Estate Law Section. A Working Group subcommittee on the topic of ending plenary guardianship (the group comprised the above authors as well as Eric Drogin, Benjamin Orzeske, and Karren Pope-Onwukwe) developed 14 statements to shed light on the issue and prompt creative thinking by policymakers and practitioners.

The statements are as follows:

1. Plenary Orders as the Exception. Although there was a consensus that plenary guardianship is still imposed much too often, the subcommittee was not prepared to recommend its complete abolition, given that there are at least some people (e.g., people in a coma or who lack any decisional capacity) who might need the full plethora of substitute decision-making. The subcommittee does believe, however, that plenary or full guardianships should be the exception and not the rule in guardianship proceedings.
2. Terminology Assumptions. Following the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA) of 2017, we believe that there is no need to continue to use the term “plenary,” “general” or “full” guardianship but rather to assume that all guardianships will only be used to provide intervention in those areas in which it is necessary.
3. Supported Decision-Making. An increasing number of states have adopted supported decision-making as an alternative to guardianship. At its core, supported decision-making is a process whereby trusted others help an adult to understand the issues and choices, to receive explanations in words they understand, and to have support in communicating to others his or her own decisions. It is not a form of surrogate or substitute decision-making; instead, the adult makes his or her own decisions with the help of his or her own choosing. This assistance in decision-making may be informal or may be through a written agreement that guides the relationship between the adult and his or her chosen supporters. A written agreement can also serve as authoritative documentation for third parties to rely on. As of June 2023, 28 states had adopted laws that formally endorse supported decision-making agreements or that recognize supported decision-making as a less restrictive alternative to guardianship.
   
   Using the supported decision-making model empowers the adult to remain active in the decisions affecting his or her life. Moreover, because guardianship (even limited guardianship) represents a substantial limitation on a person’s liberty interests, supported decision-making options should be available even if no state statute specifically recognizes them. Even if a guardianship is in place, a best practice, consistent with person-centered planning concepts, is for the guardian to make use of supported decision-making principles within the guardianship itself. In sum, the growing use of supported decision-making is antithetical to the concept of plenary guardianship.
4. Range of Less Restrictive Options. Guardianship—plenary or otherwise—should be examined not only in connection with supported decision-making but also in connection with advance planning documents such as financial powers of attorney and trusts, as well as health care decision-making vehicles (such as advance directives, health care powers of attorney, and a physician’s order for life-sustaining treatment (POLST)). While these documents have his or her own range of legal issues, including the potential for misuse, they indicate the adult’s own choice for a surrogate decision-maker and the decisions to be made on his or her behalf.
5. Incentives for Limited Orders. Courts may tend to overuse plenary orders because it seems easier to do so – they may want to avoid designating specific rights that should be retained. Where guardianship is appropriate, to increase the use of orders that are limited in scope, the subcommittee recommends approaches that would encourage courts to use them. For example, the UGCOPAA requires a court that creates a full guardianship to state clearly the reason and to give specific findings showing that a limited order would not be workable, thus inviting courts to explore limited options instead.
6. Capacity. Guardianship statutes in many states continue to use the term ”lack of capacity” when assessing the adult’s ability to make and communicate decisions. However, capacity is a contextual concept that may vary over time. Further, capacity requirements depend on the decision or task at hand and are not global in nature. Because guardianship laws potentially cover a wide range of people with very different circumstances—people with age-related cognitive decline (including dementia), people with intellectual or other developmental disabilities, people with psychosocial disabilities, people experiencing temporary as opposed to permanent health conditions affecting cognition, and people with traumatic brain injuries—capacity may not be fixed and may be fluid in nature. With this in mind, the UGCOPAA does not use the term “capacity.” Instead, it uses the term “lack of ability.” As explained in the comments to UGCOPAA §301(a)(1)(A), rather than being asked to assign a status (e.g., “incapacitated” or “has capacity”) to the individual, the court is called upon to make particularized findings about the adult’s individual needs in light of what the adult can and cannot do. This perspective on ability, rather than capacity, aligns with the use of limited rather than plenary orders.
7. Role of Counsel. There are significant issues with the level of legal representation, if any, that people subject to guardianship, or potentially subject to guardianship, receive. In particular, too many lawyers continue to advocate for the client’s best interest, as opposed to the client’s expressed interest or wishes. Such an approach denies the client’s autonomy and conflates the role of counsel for the individual with that of the court. Zealous advocacy for the individual may often result in requests to the court to fashion limited orders or reject guardianship in favor of supported decision-making arrangements.
8. Importance of Planning and Counseling. For counsel and others, the subcommittee emphasized the importance of early and thoughtful planning—both to avoid guardianship altogether through use of supported decision-making, durable powers of attorney, and advance medical directives and to limit the scope of surrogate decision-making to what is appropriate relative to the client’s capacity and ability. In particular, it is important for counsel advocating for limitations on guardianship to explore with the client the areas in which the client is able to make and communicate decisions or wishes to retain autonomy.
9. Role of Guardian ad Litem. Another issue the subcommittee identified is the ambiguity surrounding the role of the “guardian ad litem (GAL).” In many jurisdictions, the GAL must be a lawyer and is often charged with addressing the adult’s “best interest” rather than acting in the traditional advocacy role of a lawyer. In other states, the GAL may be a social worker or other non-legal professional, serving as the “eyes and ears” of the court. The role of the GAL must be clear, well understood by lawyers, and distinct from the role of the adult’s counsel. In pursuing the adult’s best interest, GALs should recognize that they have an important duty to consider limits on a guardianship order, and recommend these limits to the court – a duty that should be highlighted in GAL training.
10. Guardianship Pipeline. The subcommittee observed that school, hospital, and nursing home social workers, court clerks, and others involved in what has been characterized as the “guardianship pipeline” may discourage petitioners from seeking limited guardianship or non-guardianship alternatives when they recommend that petitioners seek plenary guardianship. This stance may be due to a lack of knowledge and understanding of less restrictive options or for reasons of supposed efficiency. We believe it is important that such individuals not give petitioners or others legal advice, as it is not their role.
11. Training for all Guardianship Stakeholders. There is a great need for enhanced training for all actors in the guardianship system, including judges, lawyers, GALs, visitors, evaluators, and health care and other care providers. In seeking to encourage limited orders, we believe it is imperative to highlight this message in the full range of judicial and lawyer continuing education training, conferences, and workshops. In particular, judicial turnover in judges who handle guardianship cases can be high in a number of states, and reiterating the need for limited orders is critical.
12. Use Existing Tools. It is also important that lawyers and GALs be aware of existing tools that can help them provide appropriate representation for clients, such as the PRACTICAL Tool for Lawyers: Steps in Supported Decision-Making.
13. State WINGS. The subcommittee suggested that those seeking greater use of limited orders – and indeed adult guardianship reform in other aspects as well -- work with the various WINGS [Working Interdisciplinary Networks of Guardianship Stakeholders] groups operating in states around the country.
14. Easily Accessible Forms. Finally, the subcommittee discussed the importance of providing easily accessible forms and materials for stakeholders involved in the guardianship process (such as petitioners, respondents, lawyers, GALs, clinicians, and judges), which can offer guidance in how to think about the limitations of the guardianship process.

Consider This

The ABA Guardianship Working Group subcommittee invites practitioners and policymakers to consider these 14 statements to advance the use of limited guardianship orders, supported decision-making agreements, and other less restrictive alternatives to plenary guardianship that can increase self-determination for adults in or potentially in the guardianship system. If these principles are followed, we believe that plenary guardianship, as we now know it, will become a thing of the past.