Adult Guardianship

Background

Guardianship allows someone to make legal decisions for another person. It is known as conservatorship in some states. A court appoints a guardian when it finds 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. It may also affect the right to vote or marry. Thus, guardianship should be an option of last resort.

More often than not, state courts appoint family members as guardians. Courts have sometimes found it difficult to find family members or friends able and willing to serve as guardians. As a result, states have a significant need for public guardianship and other surrogate decision-making services. Public guardianship is usually available to adults with limited resources. However, 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.

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. All states must adopt the measure to maximize its impact. As of 2019, 46 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands had done so.

State courts are exploring less restrictive alternatives to guardianship. This may be appropriate for individuals who may need assistance short of full guardianship. Alternatives include limited guardianship, powers of attorney, and supported decision-making, among others.

ADULT GUARDIANSHIP: Policy

ADULT GUARDIANSHIP: Policy

Adult guardianship protections

Federal policymakers should expand programs to improve guardianship. This should include monitoring programs. They can ensure that guardians are fulfilling their responsibilities appropriately.

Policymakers should encourage less restrictive alternatives to guardianship when appropriate. These alternatives can include limited guardianship, powers of attorney, supported decision-making, the Social Security Administration’s representative payee program, powers of attorney, advance directives, trusts, or a combination of these.

State policymakers should also create clear guardianship procedures. This includes providing all guardians with educational support and training. Other procedures include:

  • safeguarding the privacy of people under guardianship;
  • requiring guardians who serve multiple unrelated individuals to be certified through programs that include training, testing, and accountability requirements;
  • creating clear guidelines for how guardians should make decisions; and
  • adopting 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.

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 Voting).

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.

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.

Congress and states should allocate adequate funds for:

  • training on the powers, duties, and ethical standards of guardians;
  • training for agents under powers of attorney, the Social Security Administration’s representative payee program, and fiduciaries for the Department of Veterans Affairs, including judges and court personnel;
  • conducting background checks on prospective guardians;
  • improving monitoring through electronic filing systems and other technology;
  • 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.