Adult Guardianship:
(1) Fundamentals
(2) Reform: Where Do We Stand
Erica Wood
Commission on Law and Aging
American Bar Association
For National Health Law and Policy Resource Center
University of Iowa College of Law
February 16, 2012
Fundamentals of Guardianship
What IS Adult Guardianship?
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Relationship
Created by state law
In which court gives
One person or entity (guardian)
Duty and power
To make personal and/or property decisions
For another (incapacitated person)
Upon finding that adult lacks capacity to make
decisions self.
Guardianship Terminology
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Guardian
Guardian of person
Guardian of property
Conservator
Plenary guardian
Limited guardian
Emergency guardian
Incapacitated person
Incompetent
Ward
Termination; restoration
Refresher on Capacity
• Not global; decision-specific; time-limited
• Never put period after “capacity”
• Fluctuating; “like lava lamp”
–can’t pin down
• Influenced by external factors
• “More like a dimmer control” than on-off
switch
“Incapacity” = Society’s Trigger
Statutory Definitions
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Medical condition
Functional status
Cognitive element
Harm; necessity
Iowa Definition
“decision-making capacity which is so impaired that
the person is unable to care for the person’s
personal safety or to attend to or provide for
necessities for the person such as food, shelter,
clothing, or medical care, without which physical
injury or illness may occur” Iowa Code §633.3
Incapacity: What is it Not?
• Incapacity ≠
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Cognitive impairment alone
Medical diagnosis alone
Advanced age
Eccentricity
Refusal of care; Disagreement in high risk
situations
Who Is Under Guardianship?
• Elders with dementia, chronic cognitive
impairments
• Adults with
– intellectual disabilities
– mental illness
– head injuries
– substance abuse
– dual or multiple conditions
• Changing demographics
• Lack of data
But Who Are They?
• High profile wealthy – Brooke Astor, Joan
Kennedy
• People with pensions, assets – Transfer of
assets to Boomers; retirees
• Individuals with federal/state benefits
• “Unbefriended” individuals with no money and
no one at all
Who Are the Guardians?
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Family members; friends
Professional guardians – “stranger guardians”
Private non-profit and for-profit agencies
Lawyers
Banks
Public guardian “last resort”
Volunteers
Dedicated? Caring? Conflicted? Abusive? Yes;
no data on practice
Roots of Guardianship
• Ancient Greece and Rome
• 14th Century England – “parens patriae”
• Paternalistic model in Colonial times
• Enacted into state law
• 51 guardianship systems
Guardianship Proceedings
• “Any person” file petition (IA Code 633.552)
• Notice (633.554), possible appointment of
counsel (633.561, “shall appoint”), sometimes
court visitors, investigators, guardians ad litem
• Hearing
• Judicial order
• Appointment of guardian
• Bond
• Annual reports (633.670)and accountings
(633.670)
Why is Guardianship Last Resort?
• Parens patriae – Paternalistic, protective
• Removes basic rights
• Constant inherent tension
– Protection v autonomy
– Rights v needs
• Double-edged sword
• Society’s most extreme intervention
Courts
decide
Families
decide
Individual
Others
designated by
individual
Guardianship – “Part ogre and
part Santa Claus”
Why Else Avoid Guardianship
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Expense; use up estate
Cumbersome; time consuming
Stigmatizing
Intimidating; confusing
Families in court maze
Benefit of third parties over individual
Blunt tool
Least Restrictive Alternative
• Constitutional principle – Shelton v. Tucker, 364
U.S. 479 (1960)
• Application in mental health context – Lake v.
Cameron, 364 F.2d 657 (D.C. Cir. 1966)
• Application to guardianship – example is In Re
Mollie Orshansky, 804 A.2d 1077 (D.C.
App.2002)
Hedin v. Gonzales
528 N.W.2d 567 (1995)
Supreme Court of Iowa
Facts
• Curtis = younger individual with intellectual disability
• Sister =guardian & rep payee
• Curtis wanted to marry and live more independently
but guardian opposed
• Curtis filed petition to remove guardian and
terminate guardianship
• Curtis raised constitutional issues– alleged violation
of liberty interest under 14th Amendment
Hedin v Gonzales – Court Holdings
• Guardianship involves loss of liberty; person entitled to
procedural due process rights.
• Criteria “unable to make or carry out important decisions
concerning the . . . ward’s person or affairs” vague and
overbroad
– Too subjective
– Focuses on content of decision rather than capacity of
person
– No requirement of harm
• Court must consider whether limited guardianship
appropriate.
• Standard of proof = clear and convincing evidence
Surrogate Decision-Making Standards
• Two standards for surrogate decision-making
• “Best interests” – surrogate makes decisions to
best protect health, safety, welfare
• “Substituted judgment” – surrogate uses values
of individual, determines what person would
have wanted
– Requires evidence of values, preferences
– “Values history”
Substituted Judgment:
Stepping into Shoes of Another
Guardianship Reform:
Where Do We Stand?
 Gap Between Law & Practice
 Least Restrictive Alternative; Limited Orders
 Capacity Assessment; Procedural Due
Process
 Court Oversight; Guardian Accountability
 Public Guardianship
 Iowa Perspectives Panel
Guardianship Law vs. Practice
1987 Associated Press Report:
Guardians of the Elderly: An Ailing System
Rush to State Statutory
& Practice Reform
• Since 1988, revisions in almost all states
• About 2/3 of states enacted new or
substantially revised code
• State skirmishes, task forces,
debates
Gap Between Law and Practice:
Bends in Long & Winding Road to Reform
"In the Hands of a Troubled
System” 2004
“Guardians for Profit”
2005
“Courts Strip Elders of the
Independence” 2008
“Under Court, Vulnerable Became
Victims” 2003
“Latest Custody Battle: Who
Gets Mom” 2006
Lack of Data:
Through a Glass Darkly
# Adults under guardianship in U.S. – unknown
#Adults under guardianship in states – unknown in most
states
% and numbers frequently unknown
-Elders
-Individuals with mental illness
-Triggering issue
-Family, public, nonprofit or for-profit guardians
-Plenary v limited orders
-Reports timely filed
Least Restrictive Alternative;
Limited Orders
Less Restrictive Options
• Financial Alternatives
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Financial power of attorney
Representative payee
Joint accounts
Trust
[Money management]
• Health Care/Personal Care Alternatives
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Health care power of attorney
Health care “living will” instructional directive
Advance directive
Health care default surrogate law
• May not need guardian unless
– Decision outside scope of document
– Possible abuse by agent
Concept of Limited Order
• Limited v plenary order
• Guardian assigned only those duties & powers
person is incapable of exercising
• Highlighted in Uniform Guardianship and Protective
Proceedings Act
• National Probate Court Standards – directs judge to
detail powers & duties & rights retained
• Language included in virtually every state statute –
See chart on ABA Commission Web site.
Guardian Powers & Duties:
Two Types of Statutes
• Type One = Guardianship removes all rights
except those
– Set out in statute. Some states list retained rights
(FL)
– Set out in court order
• Type Two = Guardianship removes and
transfers ONLY those powers specifically set
out in order. (All orders = limited orders.)
Rationales for Limited Orders
• Maximize autonomy
• Support principle of least restrictive
alternative
• Support mental health in preserving choice
& control
• Encourage guardian to
consult/communicate more with individual
• Disability community – means to normalize
life
Examples of Limited Orders
Mr. X retains the right to have and spend $20 of cash per week.
Ms. X retains the rights to manage and use her checkbook (with monthly
limit).
Mr. X retains the right to make donations to organizations of his choosing (with
limit).
Ms. Y retains the right to choose a health or long-term care facility.
Ms. Z retains the right to mange her medications (with assistance).
Ms. A retains the right to smoke at a time and place of her determination, within the law.
Ms. Z retains the right to travel.
Mr. M retains the right to vote.
Crafting Limited Orders
“Judges are not like baseball umpires,
calling strikes and balls or merely labeling
someone competent or incompetent.
Rather, the better analogy is that of a
craftsman who carves staffs from tree branches.
Although the end result – a wood staff – is similar, the
process of creation is distinct to each staff. Just as the
good wood-carver knows that within each tree branch
there is a unique staff that can be ‘released’ by the acts
of the carver, so too a good judge understands that,
within the facts surrounding each guardianship petition,
there is an outcome that will best serve the needs of the
incapacitated person, if only the judge and the litigants
can find it.” Larry Frolik, Stetson L. Rev. Spring 2002
Barriers to Limited Orders
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Require fine-tuned capacity assessment
Older people with dementia – declining
Expensive to return to court
Compromise judicial economy
Hard for third parties
Attorneys frequently don’t request
Use of Guardianship Plan
• Forward looking document; blueprint for
guardian actions
• Required by National Probate Court Standards;
UGPPA
• Approx 10 states require plan
– With petition
– Following appointment
– With annual report
• Plan can include goals of shared decisionmaking; “person-centered planning”
• Barriers
– Court approval
– Court review
– Changing circumstances
Ways to Promote Participation –
Not About Me Without Me
• Frequency of visits
– State provisions
– NGA Standards require monthly
• NGA Standards
– “Guardian shall encourage the ward to participate, to the maximum
extent of the ward’s abilities, in all decisions that affect him or her. . .”
• Communication tips –
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Use short, simple words & sentences
Give one step directions
Repeat or paraphrase
Give visual clues
• Need for guardian training
Capacity Determination;
Procedural Due Process
No “Capaci-meter” to Measure
Guardianship Capacity Assessment
Handbook for Judges
Six Pillars of Capacity Assessment
5. Ensure Oversight
4. Make Determination
3. Conduct Hearing
2. Gather Information
1. Screen Case
E
Means to
Enhance Capacity
of Supervision
R
Risks & Level
Preferences
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Values and
Behavior
Cognition
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Functional
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Medical
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Condition
Judicial Determination
of Capacity of Older Adults
in Guardianship Proceedings
“MCFVRE”
M = Medical condition
C = Cognitive capacity
F = Functional capacity
V = Values
R = Risks
E = Means to Enhance capacity
Medical
Condition
Everyday
Functioning
Cognition
Values &
Preferences
Risk &
Supervision
Needed
Means
to Enhance
Capacity
The D’s of Medical Condition
Diagnosis
 Drugs
 Dehydration
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Diet
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Depression
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Disorientation
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Delirium
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Dementia
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Dig
More Than Just Short Term Memory Loss!
Functional Element
How does person function in life &
society
What is ability to –
-Care for self?
-Make medical decisions?
-Make residential decisions?
-Function at home and in community?
-Take civil and legal actions?
Values & Preferences
 Frequently missing piece
 May be informed by age, cohort,
culture, life experience, family
background
 What makes life meaningful
 Important TO vs important FOR
 Consistency over time
 Values questionnaire forms
Means to Enhance Capacity
Will anything improve the condition?
Will anything improve the functioning?
Question is not “have capacity” but
“Does the person have capacity with
support?
o Communication techniques
o ADA accommodations
o Accommodations/adaptations beyond ADA
o Medical treatments
o Community services
Risk of Harm;
Level of Supervision Needed
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What are risks?
How likely?
How severe? Consequences reversible?
What factors increase or decrease risks?
What protections needed?
Inherent tension in guardianship – risk tips
scales; risks vs values
• Choosing to run risks vs
happening to run them
Who Will Do Assessment?
Ideally professional with capacity
evaluation experience
Otherwise –
Check with aging network
University medical centers
Medical internists with geriatric clientele
Local social worker or mental health
professional, gain experience
Procedural Due Process
• Notice
– Timing
– Form
– Who served
• Presence
– Unless harm
– ADA
• Counsel
– Right to vs. appointment of
– Vigorous advocacy vs. guardian ad litem/best interest
Guardian Accountability
Promising Practices
for Guardianship Monitoring
• Reports, accounts & plans
• Court actions to facilitate reporting
• Practices to protect assets
• Court review of reports & accounts
More Promising Practices
for Guardianship Monitoring
• Investigation, verification & sanctions
• Database, technology
• Links with community groups
• Guardian training & assistance –
especially family guardians
Volunteer Guardianship Monitoring
• A “win-win”
• Volunteer visitors as “eyes & ears” of court
• Time-tested; AARP since 1990s
• NEW! Three-part ABA Commission
Handbook for Courts at:
http://ambar.org/VolunteerGrdMonitor
Tarrant County Volunteer Monitor
Background Checks
• Existing requirement in 14 states
• Felony conviction or “criminal”
record is bar in 12 states
• GAO report raised concern
• S. 1744, Sen. Klobuchar (MN) –
Guardian Accountability and
Senior Protection Act
Issues Regarding Criminal Background
How much court discretion?
Absolute bar or consideration
What crimes?
How far back?
Who to check?
What to check?
How to check?
Standards for Accountability
• Statutory guidance insufficient
• Need for widely recognized standards
• National Guardianship Association
Standards of Practice
• 2011 Third National Guardianship
Summit
• Standards same for all guardians?
• Standards mandatory or aspirational best
practice?
Highlights of Recommended Standards
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Person-centered planning
Conservator management
Fees
Bonding
Health care decision-making steps
Priority on community based care/ preferences
Maintenance of meaningful relationships
except substantial harm.
Certifying Accountability
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Should guardians be certified?
By what process? State? National?
Which guardians certified?
Complaint and disciplinary procedure?
Center for Guardianship Certification
Existing state certification programs
US Certification
Public Guardianship
Public Guardianship Definition
Public Guardianship – The appointment
and responsibility of a public official or
publicly funded organization to serve as
legal guardian in the absence of willing
and responsible family members or
friends to serve as, or in the absence of
resources to employ, a private guardian.
(Schmidt, Miller, Bell & New, 1981)
• 2004-2008 National Public Guardianship
Study
• 28 “Explicit” and 18 “implicit” public
guardianship statutory provisions
• Four basic models
– Court Model
– Independent State Office
– Within Social Service Agency – majority of
states (“conflict of interest model”)
– County Model
Selected Findings from
National Public Guardianship Study
• Under broad definition, all states but one
have “something” but largely insufficient.
• Clear majority of states use social services
model.
• Significant, unquantified unmet needs.
• Compelling underfunding and
understaffing.
• Patchwork of funding sources.
State WINGS
• Working Interdisciplinary Networks of
Guardianship Stakeholders (WINGS)
• Steering committee; high-level court
backing
• Assess strength, weaknesses, priorities
• Sustainability – remain as consistent
forum for collaboration & problem-solving
• Legislation is the beginning, not the end