Courts appoint guardians to protect people who are at risk of harm and who they find are not able to make decisions about their health, where they live, or managing their money and property.
The population is changing – more people are growing older and the number of people with dementia is increasing. Also, more people with mental disabilities are living longer.
Advocates, including members of the National Guardianship Network, have worked on improvements in guardianship law to meet the growing needs for help with decision-making, but that doesn’t always mean that guardianship practice changes as well.
Here are some key areas of guardianship reform:
Decision-Making Support Without a Guardianship
When a court appoints a guardian for someone, that person loses the right to make their own decisions and manage their affairs. That is why reforms have encouraged courts, attorneys, family members and others, before considering guardianship, to explore other options that may support decision-making and still protect the person from harm. For example:
• Durable Financial Power of Attorney
– A person can give another person the authority to pay their bills, including rent and mortgage, manage their money, and handle other matters related to finances. The power of attorney can start immediately, or only if the time comes when the person is not able to communicate their preferences. It is important to only give power of attorney to someone trustworthy.
• Representative Payee
– If the Social Security Administration finds someone cannot manage their own benefits, it will appoint a representative payee to receive that person’s benefits and pay the person’s bills. The payee has no authority over any other part of the person’s life.
• Health Care Advance Directive
– Someone can write down what healthcare decisions they would make if the time comes when they cannot communicate their wishes. The healthcare advance directive can include preferences for end of life decisions. It can also name someone else to make decisions on behalf of the person who can no longer make their own decisions.
• Supported Decision-Making
– Before appointing a guardian, ask what would it take to keep someone at the center of the decision-making process. Is it possible to avoid harm while supporting this person in making decisions? Friends, family, and professionals can be a part of a network of support that works with the individual to make decisions. Supported decision-making has many different forms such as: informal conversations, professional/client relationships, and written supported decision-making agreements.
Changing State Laws
Over the past 30 years, all states have made important improvements in their states guardianship laws. Each year, states pass about 25 to 45 guardianship bills. For summaries of the changes each year, see the ABA Commission on Law and Aging legislative updates
. These bills include changes in:
• Requirements for screening for less restrictive ways of decision-making (see the section above on decision-making without a guardian).
• Safeguards in the process of appointing a guardian. For example, laws might improve the notice given to the person, strengthen requirements for legal representation, and ensure the person’s presence at the guardianship hearing if possible.
• Better ways for the court to evaluate a person’s abilities and limitations. With a good evaluation, the court might find the person does not need a guardian, or needs a guardian for only some decisions, or for only a limited period.
• Clarifying the duties and powers of a guardian, and providing for guardian training and standards -- and encouraging orders to be limited to specific areas of decision-making if possible.
• Monitoring the guardian after appointment through reports, accountings and investigations.
• Providing for public programs to serve as guardian when no one else is available and willing, and to provide support with decision-making in other ways.
Uniform State Laws
For over a hundred years, a national organization called the Uniform Law Commission has produced model and uniform laws that can be passed by state legislatures.
The Commission has had some form of a uniform guardianship act since 1969. The act changed several times, and most recently was updated in 2017. The new act is called the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act
. The new act makes many important changes such as:
• A notice of rights for anyone who is said to need a guardian, or who already has a guardian.
• A new form for requesting the court to appoint a guardian, with more information for the judge.
• Requirements for courts to look at other ways of helping someone with decisions before appointing a guardian – and to consider only removing rights in specific areas of need (called a “limited guardianship”).
• Ways to help the court better monitor guardians.
• Providing for certain family members or others to get notices if the person who has a guardian moves, goes into the hospital, or dies.
• Helping to end the guardianship if it is no longer needed, and restore the person’s rights.
In addition to the new Uniform Act, the Commission has approved another Act that helps to sort out jurisdictional guardianship problems when more than one state is involved. This act is called the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
. A total of 47 states have passed this act.
The Uniform Law Commission has appointed Commissioners in each state to help get uniform acts passed. If you are interested in passing Uniform Acts, find out from the Uniform Law Commission who the Commissioners are in your state.
Both of these Uniform Acts are supported by many of the National Guardianship Network member organizations.
Court Monitoring of Guardians
Once a guardian is appointed, the court is responsible for monitoring the guardian’s actions caring for the person and/or managing the person’s money and property. Guardians are “fiduciaries” – which means they have very high duties of care, trust and honesty. They must make decisions and act carefully, according to the person’s values and best interest, and they must keep good records.
Guardians must file reports with the court about the person’s condition and living arrangements, any changes and services provided. If the guardian manages money or property, the guardian must file an accounting with the court either annually or when the court requires.
If the reports or accounting shows a possible problem, the court may send out an investigator or call the guardian in for a hearing.
Key ways to strengthening court monitoring have included, for example:
• Clear guardian standards and training.
o See the NGA Standards of Practice
o See NGA Fundamentals of Guardianship.
• Help for guardians in filing reports and accountings
• Improvements in how the court reviews the reports and accountings
• Clear guidance to courts in how they can respond when they find a problem
• Requirements for bonds for guardians managing money or property
• Complaint procedures
• Better databases on guardianship cases
See more information on guardianship monitoring at the Center for Elders and Courts
Court-Community Partnerships for Reform
To improve guardianship practices, courts in a growing number of states work actively with partners – like adult protective services, the state office on aging, disability law centers, bar associations, mental health agencies, and other advocates.
In some states these partnerships are called WINGS – Working Interdisciplinary Networks of Guardianship Stakeholders. WINGS are court-led partnerships that drive guardianship reform, support good guardianship practices, promote use of other ways of decision-making, and reduce instances in which guardians abuse their responsibilities. See ABA Commission WINGS site
Coordinating Guardianship and the Social Security Representative Payee Program
The Social Security Administration and state guardianship courts should have a process for sharing information about misuse of funds.
If the Social Security Administration finds someone cannot manage their own benefits, it will appoint a representative payee to receive that person’s benefits and pay the person’s bills (see section above on Decision-Making Without a Guardian).
Confusing the appointment of a payee with the appointment of a guardian is a common mistake. They are two completely different processes without any connection or influence on each other. The Social Security Administration can appoint a guardian to serve as a payee, but it is not required to do so. This lack of coordination between the two systems can lead to increased misuse of funds.
For example, the Social Security Administration does not have a process for informing a court if it removes a payee for misuse of funds, even if the payee is also the beneficiary’s court-appointed guardian. Nor is there a procedure for courts to inform Social Security that they have sanctioned or removed a guardian for exploiting a person’s finances. So, a fraudulent payee could continue in the role of guardian or a fraudulent guardian could continue as payee.
In 2010, the U.S. Government Accountability Office released Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors
. The report reviewed instances of both guardians and representative payees misusing funds. The report concluded that without a systematic means for sharing information between state guardianship courts and the representative payee program, many people who have a guardian and receive their benefits via a payee are at risk of financial exploitation. Discussions are underway to try to address this problem.
The lack of good quality data on open guardianship cases is a continuing problem in many states. Accurate and timely data is needed to:
• effectively manage individual cases and monitor the activities of guardians appointed by the courts,
• gauge the extent of abuse by guardians and the extent to which guardians protect individuals from abuse,
• identify needed system improvements,
• determine current and future resource needs, and
• inform guardianship policy, practice, training and education,
The collection and availability of good quality data can assist in the planning for and implementing of reforms.
Related: Texas Guardianship Compliance Project (GCP)
from the Office of Court Administration and Texas Judicial Branch Certification Commission