AARP Hearing Center
Background
Guardianship allows someone to make legal decisions for another person. It is known as conservatorship in some states. A court appoints a guardian upon finding that an individual cannot manage their own affairs. Adults placed under guardianship may lose their basic civil liberties. These can include making decisions about where to live, how to spend money, and what medical treatment to receive. Guardianships may also affect a person’s right to vote or marry. Thus, guardianship should be an option of last resort.
Usually state courts appoint family members as guardians. However, courts sometimes have difficulty finding family members or friends able and willing to serve as guardians. As a result, states have a significant need for public guardians and other surrogate decision-making services. Public guardianship is usually available to adults with limited resources. But these programs are frequently understaffed and underfunded. Some public guardians have multiple people in their custody.
After a guardian has been appointed, state courts monitor the guardian’s performance. They must ensure that individuals under guardianship are cared for appropriately. Most guardians perform their duties properly. However, there have been some instances of abuse, mismanagement of funds, conflicts of interest, or a combination of these. States are working to improve the quality of guardianship and prevent abuses. This includes better court oversight, data collection, training for all guardians, and accountability. Some states also have adopted standards of practice, certification requirements, and background checks for all guardians.
Clear guidelines for how guardians make decisions are crucial to help safeguard against the abuse and financial exploitation of individuals under guardianship. Unfortunately, most guardianship laws and court orders typically provide only general help for guardians on how to make decisions, and guardians often need further guidance from standards of practice. Compounding the problem is the wide variation among state guardianship laws. With clear guidelines for guardian decision-making, the legal system can better protect the rights and welfare of individuals under guardianship and mitigate the risk of abuse and financial exploitation.
The Uniform Law Commission developed the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA) in 2017. The act encourages courts to impose the least-restrictive orders possible to adequately protect vulnerable minors and adults and to monitor and adapt to an individual’s changing capabilities and needs. It also imposes clear duties upon guardians and conservators charged with protecting others and requires regular monitoring to ensure compliance.
In addition, in 2022, the National Guardianship Association released its revised Standards of Practice that provide guidelines for guardians. These include standards for the guardian’s relationships with the person and others, decision-making, and self-determination.
When an individual under guardianship has ties to more than one state, it is often unclear which state has jurisdiction. The Uniform Law Commission has adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act to address this issue. Nearly all states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have adopted this act. Only Kansas, Texas, Florida, and Michigan have not.
In 2023, the American Bar Association passed a resolution urging all policymakers to adopt the National Guardianship Network’s (NGN) “Guardianship Bill of Rights.” The Bill of Rights provides, among other things, that individuals subject to guardianship retain their fundamental rights, including access to counsel and courts. People subjected to guardianship also retain core human rights, including the right to be treated with dignity and respect and to be free from abuse and neglect.
The NGN created the Bill of Rights because most state laws focus only on pre-adjudication and due process rights to a fair hearing. Only a handful of states have enacted laws that protect a person’s rights post-adjudication.
A serious impediment to the adoption of guardianship reforms nationwide is the dearth of detailed data on guardianship. According to a Justice in Aging 2024 Issue Brief, information regarding the number of people under guardianship, demographic information, and grounds for guardianship, among other important information, is largely unknown. The reasons behind this lack of information include insufficient funding, non-unified court systems that use different technologies to track cases, and the absence of standardized methods to collect data. Without data, it is impossible to analyze the impact of guardianships on individuals and communities, as well as the factors that may increase the likelihood of guardianships, such as health issues, cognitive impairment, finances, housing, and living conditions.
ADULT GUARDIANSHIP: Policy
ADULT GUARDIANSHIP: Policy
Use of guardianship
Guardianship must only be used when an older adult’s needs cannot be met by any less restrictive method.
Policymakers should adopt the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act.
Guardian decision-making
State policymakers should establish clear guidelines for how guardians make decisions. Guardians should strive to maximize the older adults' independence, involve them in decision-making to the extent they wish to be involved, and respect their values and preferences.
In alignment with the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, when guardians must make a choice for a person under their care, they should be required to base their decision on what the person would be expected to choose, unless such a choice would unreasonably harm the person under their care or they cannot determine the person’s preference. This is known as the substituted judgment standard.
If the substituted judgment standard cannot be used, then the guardian should objectively determine the best interest of the person under their care. This is known as the best interest standard.
Fundamental rights of people under guardianship
States must adopt and vigorously enforce protections consistent with the American Bar Association’s Model Guardianship Bill of Rights. This Bill of Rights ensures that people under guardianship have fundamental rights that must be honored and respected, including access to justice rights, core human rights, and decision-making rights. Mandated reporters, including medical professionals and long-term services and supports providers, should be required to report violations of these fundamental rights to the appropriate authorities.
Due process rights
States should protect the due process rights of people under guardianship. These safeguards should include each of the following minimum standards:
- the right to a court-appointed attorney who is present at all proceedings;
- timely notification of proceedings in understandable language;
- a process for emergency proceedings that includes notice to the respondent, mandatory appointment of counsel, proof of investigation, appropriate limitations on emergency powers, termination upon showing that the emergency no longer exists, and review of prospective guardians and conservators, including criminal background checks;
- clear and convincing evidence that guardianship is necessary;
- conflict-of-interest protections;
- court oversight of guardianship, with appropriate civil or criminal penalties for guardian malfeasance;
- preservation of all rights and authority not expressly delegated to the guardian; and
- retention of the right to vote unless the court makes a specific finding of incapacity to vote (see also Older voters and voters with disabilities).
Public guardianship programs
States should establish and adequately fund public guardianship programs. They should put in place standards to protect people under guardianship from abuse. These include limits on the number of individuals served by any single public guardian. States should also adopt conflict-of-interest standards for guardians. Other standards should consist of:
- adequate liability insurance for the protection of clients and their property, and
- oversight by the guardianship court tailored to the particular needs of those served by public guardianship programs.
Education, monitoring, and oversight
Policymakers should improve guardianship by:
- providing all guardians with educational support and training,
- expanding monitoring programs to ensure that guardians are fulfilling their responsibilities appropriately, and
- enhancing data collection and reporting on guardianship.
They should also:
- require guardians who serve multiple unrelated individuals to be certified through programs that include training, testing, and accountability requirements; and
- adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act to create procedures for when people under guardianship have ties to more than one jurisdiction or state.
Federal-state coordination of federal representative payment programs and guardianship should be strengthened and streamlined.
States should convene stakeholders to assess the state’s guardianship systems, address issues of policy and practice, and serve as an ongoing problem-solving network.
Funding
Guardianship programs should be fully funded. Congress and states should allocate adequate funds for:
- improving training programs;
- conducting background checks on prospective guardians;
- implementing technology to improve monitoring programs;
- assessing the effectiveness of current guardianship procedures and implementing changes;
- creating demonstration projects on model guardianship monitoring practices;
- studying state fiduciary laws, including laws on guardianship and powers of attorney, and the roles and responsibilities of government entities regarding fiduciaries; and
- creating a uniform system for data collection on key aspects of the guardianship process.