When individuals are incapable of managing personal decisions or property, there are several alternatives for authorizing other people or corporate entities to act on their behalf. While still capable of decisionmaking, a person may grant such authority voluntarily, using powers of attorney, health care proxies, trusts, and other devices. These advance planning tools allow individuals to specify how personal and financial decisions will be made and by whom, potentially avoiding court intervention. When an individual loses capacity and has not delegated decisionmaking authority, a court may appoint a guardian or conservator with specified decisionmaking powers. All of these arrangements carry risks and therefore require scrutiny and monitoring. Powers of attorney, trusts, and guardianship arrangements should be monitored and authority ended for those who abuse or neglect the people in their charge.
Powers of attorney—a power of attorney is a signed document in which a principal appoints another person to act as his or her agent. The grant of authority can be limited, for a particular purpose or period of time, or it can be general, allowing the agent to act indefinitely with regard to all matters. Increasingly, such powers are made “durable” by an express statement that the principal intends the authority to remain effective even if he or she subsequently becomes disabled or incapacitated.
In 2006 the Uniform Law CommissionThe ULC, also known as the National Conference of Commissioners on Uniform State Laws), established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. approved a revised Uniform Power of Attorney Act, which includes a presumption that the document is “durable.” It has safeguards against abuse by agents and remedies for that abuse. Its provisions encourage acceptance of an agent’s authority by banks and other institutions and address many concerns raised by existing state laws. By 2016, 21 states had adopted the act and others were considering adoption.
Sometimes the Social Security Administration (SSA) appoints a family member or friend of a person who needs help managing money to be a representative payee. A representative payee has authority to oversee and manage the individual’s Social Security benefits. As a matter of policy, the SSA declines to recognize powers of attorney and makes its own appointment of representative payees, determining their responsibilities. The Department of Veterans Affairs also declines to recognize powers of attorney and appoints its own fiduciaries.
Trusts—trusts are sometimes seen as alternatives to powers of attorney and guardianship. A person forms a trust when he or she transfers property to another person “in trust” for his or her own benefit or for the benefit of others, the “beneficiaries.” A trust may be established while the grantor is living; this is known as a living trusts and is effective during the person’s lifetime. It may also be a last will and testament; this is known as a “testamentary” trust and is for the administration of property after the individual dies. Trusts are commonly used to provide for property management in the event of incapacity; to avoid probate, as part of an individual’s estate plan; and in some instances to obtain favorable tax consequences.
Living trusts may provide a way to manage property during a person’s lifetime. However, too often such trusts are aggressively promoted to individuals who neither need them nor understand the costs and procedures involved. They are often not properly drafted or funded. State laws governing trusts vary considerably, and this inconsistency may present problems for people who move to another state upon retirement.
In 2000 the Uniform Law Commission adopted a Uniform Trust Code to help improve the certainty and predictability of trust interpretation by the courts and to reduce trust preparation costs for consumers. As of 2016, 31 states and the District of Columbia have adopted this uniform code.
Guardianship—in guardianship proceedings (known as conservatorship in some states), a court oversees the transfer of authority for property or personal decisionmaking or both when an individual is found to be incapable of managing his or her own affairs. Adults placed under guardianship may lose their basic civil liberties, such as the right to vote, marry, make decisions about where to live, decide how to spend their money, and determine the type of medical treatment they should have. Protections for these rights vary by state. As the need for guardians has grown, courts have found it more difficult to find family members or friends able and willing to accept the responsibilities of guardianship. As a result states have significant unmet needs for public guardianship and other surrogate decisionmaking services. However, these programs are frequently understaffed and underfunded, and oversight and accountability of public guardianship is uneven.
After a guardian has been appointed, courts are responsible for monitoring the guardian’s performance and ensuring that those under guardianship are protected and cared for appropriately. Although all states have laws requiring periodic reporting and accounting by guardians, a 2006 AARP Public Policy Institute study found that oversight practices vary dramatically. To improve the quality of guardianship and prevent abuses, some states have adopted standards of practice and certification requirements for professional guardians.
An added problem is that guardianship laws are unclear on which state has jurisdiction when the person under guardianship has ties to more than one state. The Uniform Law Commission has adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) to address the issue of jurisdiction with regard to guardianships. This act aims to provide uniformity among the states and reduce litigation costs. The UAGPPJA will also save time for those who are serving as guardians and conservators, allowing them to make important decisions for their loved ones as quickly as possible. To maximize the act’s effect, all states need to adopt the measure. By 2016, 45 states, Puerto Rico, and the District of Columbia had adopted the UAGPPJA.
Jurisdictional issues become even more complex internationally. No established procedures exist to resolve international disputes over the authority of guardians and agents with financial or health care powers of attorney. However, the US Department of State has negotiated an international convention that establishes policies and protocols for recognizing other countries’ orders and laws.
Advance Planning and Guardianship: Policy
Durable powers of attorney
States should expand their laws on durable powers of attorney to deter wrongdoing by agents, to provide legal remedies for such wrongdoing, and to provide third parties with incentives to rely on the powers without fear of liability, except for their own wrongdoing. These protections and remedies should be at least as stringent as those in the updated Uniform Power of Attorney Act.
Uniform trust code
States should codify, simplify, and clarify trust laws by modeling them on the Uniform Trust Code promulgated by the Uniform Law CommissionThe ULC, also known as the National Conference of Commissioners on Uniform State Laws), established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. .
The federal government should encourage the expansion of:
- programs that provide alternative protective arrangements less restrictive than guardianship (such as representative payee);
- educational and support programs to assist guardians, particularly family members, in carrying out their responsibilities; and
- effective programs to monitor guardians and other fiduciaries to ensure that they utilize their authority and fulfill their responsibilities appropriately.
States also should enact laws or court rules that:
- require all guardians to receive adequate training and information about their duties and responsibilities;
- mandate certification of guardians who serve multiple, unrelated incapacitated people (certification programs should include training, testing, and accountability requirements);
- protect the privacy of people under guardianship by prohibiting electronic posting of sensitive information in guardianship case records;
- create clear guidelines for how guardians should make decisions; and
- provide clear procedures when people under guardianship (or their property or their care) have ties to more than one jurisdiction or state by adopting the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
Protecting due process rights
States should enact guardianship and conservatorship laws that protect the due process rights of people under guardianship. These safeguards should include, at a minimum:
- a mandated right to legal counsel (including a right to have counsel appointed by the court and present at all proceedings);
- timely notification of proceedings in understandable language;
- consideration by the court of less-restrictive alternatives to guardianship (such as money management, powers of attorney, advance directives, and trusts) in determining whether the appointment of a guardian is necessary;
- a process for emergency proceedings that includes actual notice to the respondent, mandatory appointment of counsel, proof of investigation of the background and qualifications of respondent’s emergency, appropriate limitations on emergency powers, and termination upon showing that the emergency no longer exists;
- review of prospective guardians and conservators, including criminal background checks;
- proof that the individual lacks decisionmaking capacity and requires a guardian by clear and convincing evidence;
- protections against conflicts of interest in the selection of guardians and conservators;
- periodic accounting and reporting on personal status by guardians and thorough oversight of guardianship by the court, with appropriate civil or criminal penalties for guardian malfeasance;
- retention by the person under guardianship of all rights and authority except those expressly delegated to the guardian due to the individual’s functional limitations; and
- assessment by the court of the individual’s capacity to vote, and retention of the right to vote unless the court makes a specific finding of incapacity to vote (see Chapter 1, Government Integrity and Civic Engagement, for policy on voting and mental incapacity).
States should establish and adequately fund public guardianship programs to provide free or nominal-cost services for adults with limited resources who lack qualified relatives or others to serve as a guardian or conservator. States should require that these programs meet minimum standards, including limits on the number of individuals served, by:
- using specific staffing ratios,
- maintaining of adequate liability insurance for the protection of clients and their property,
- adopting mandatory conflict-of-interest standards, and
- permitting oversight by the guardianship court tailored to the particular needs of those served by public guardianship programs.
Coordination on guardianship issues
Federal-state coordination of federal representative payment programs and guardianship should be strengthened and streamlined through such means as increased communication between and among courts and federal agencies (such as the Social Security Administration and the Department of Veterans Affairs) to ensure appointment of appropriate guardians and representative payees, to monitor the activities of those fiduciaries, and to maximize services to individuals with diminished capacity.
The federal government should convene an interagency-interstate court study group to develop options for improved information sharing and coordination.
States should convene statewide multidisciplinary networks of guardianship stakeholders to assess the state’s guardianship systems, address issues of policy and practice, and serve as an ongoing problem-solving network.
International Convention on the Protection of Incapacitated Adults
Funding for guardianship and alternatives
Congress should allocate funds to:
- train guardians, agents under durable powers of attorney, representative payees, judges, and court personnel regarding their powers, duties, and ethical standards;
- provide funds for states to conduct background checks on prospective guardians and improve monitoring through electronic filing systems;
- enable state courts to assess the effectiveness of current guardianship procedures and to implement changes;
- create demonstration projects on model guardianship monitoring practices;
- provide for authorized fiduciaries, including public guardians;
- study state fiduciary laws, including guardianship and power of attorney laws, and the roles and responsibilities of government entities regarding fiduciaries; and
- support a uniform system of data collection on key aspects of the guardianship process.