Monthly Archives: August 2016

Guardianship/Conservatorship Section Guardianship Reform Efforts by Critics of the System

August 26, 2016

By Catherine Anne Seal, CELA, CAP

There are two different interest groups both working toward guardianship reform, guardianship professionals and family advocates.

Guardianship reform is not a new issue in the United States. In the later half of the 20th century, a series of articles published by the Associated Press led to a call for reform of the adult guardianship system.1 This was one of the impetuses for the first guardianship reform conference, the Wingspread Conference held in 1988, and delegates representing the National Academy of Elder Law Attorneys participated in that conference. The conference was a meeting of 38 guardianship professionals who adopted a number of recommendations for improvement of the guardianship process. The conference was followed by the Wingspan Conference in 2001 and the Third National Guardianship Summit in 2011. NAELA participated in each of the conferences. Each conference produced a series of recommendations.

Since the National Guardianship Summit in Salt Lake City, Utah, in October 2011, many of the recommendations have been incorporated into revisions to the National Guardianship Association’s professional standards and the National College of Probate Judges Probate Court Standards. The Uniform Law Commission is currently working on a revision of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act,2 which will also incorporate the recommendations into the Act.

Seeking Change
These reform efforts have been led by guardianship professionals seeking to improve the system they know and understand. But these are not the only reform efforts. Various groups of individuals who are not guardianship professionals also seek to change the system. Among the most notable of these efforts is legislation proposed by Catherine Falk3 for the rights of family and friends for visitation with persons under guardianship. Ms. Falk and various interest groups have advocated for legislation that was introduced in many state legislatures in the 2016 legislative cycle. The legislation4 seeks to limit the ability of court-appointed guardians to restrict access by family and friends to persons under guardianship. To date, the act has passed in Utah and Tennessee.

A criticism of the proposed legislation is that the language of the various bills focuses on the rights of family and friends as opposed to rights of the person under guardianship. However, proponents of the act have many supporters who claim that they were denied access to the person under guardianship by a court-appointed guardian.

In Florida, the state legislature enacted legislation5 permitting the state to exert regulatory authority over professional guardians. The impetus for this legislation was a series of articles by the Palm Beach Post entitled “Guardianship: A Broken Trust,”6 which highlighted concerns about professional guardians, including the conduct of the wife of a Palm Beach County Circuit Court judge who was serving as a professional guardian and was obtaining payment as a guardian without court approval of her fees. The legislation creates an Office of Public and Professional Guardians and calls for creation of standard practices and rules for professional guardians. The statute also gives the office the ability to revoke a guardian’s registration for cause.

In Texas, legislation passed in 20157 requires the exploration of alternatives to guardianship that would avoid the need for appointment of a guardian and provides for a review of a ward’s capacity in order to determine the ability of the ward to make certain decisions and the need to continue guardianship. The law also enacted the Supported Decision Making Agreement Act8 to authorize an adult with disabilities to enter into a supported decision-making agreement with a supporter as a less restrictive alternative for adults who are not considered incapacitated persons, but who may need some assistance. Another statute passed in 20159 authorizes an adult ward’s spouse, parent, sibling, or child to file an application with the probate court requesting access to the ward.

Supported Decision-Making and Due Process Protection
There are two different interest groups both working toward guardianship reform, the guardianship professionals and the family advocates. While the groups appear to have different interests, they have much in common as well. Both groups believe that guardianship is a deprivation of an individual’s civil rights. The professionals believe that guardianship is unavoidable in certain cases, but may be avoidable in others, including the recent interest in supported decision-making as an alternative to guardianship. Supported decision-making may be particularly useful as an alternative to guardianship for intellectually disabled young adults as they reach the age of majority. Efforts should be made by the professional community to reach out to family advocates to assist in efforts to legislate supported decision-making as Texas has, and to educate the disability community on this alternative.

In addition to supported decision-making, guardianship professionals have long been advocates of adopting greater due process protections for persons who are the subject of guardianship proceedings and persons under guardianship. However, there has long been a gap between well-drafted statutes and the actual practice of  guardianship.

These gaps in due process protections have led to the appointment of guardians for individuals for whom guardianship might have been avoided had alternatives to guardianship been thoroughly explored prior to the appointment of a guardian. Family advocates and guardianship professionals should be able to find common ground in insisting that states enact appropriate legislation and procedures to safeguard due process rights of individuals involved in guardianship proceedings.

Family advocates would benefit from working with guardianship professionals in learning how the legal system can benefit their goals of ensuring access to loved ones, and ensuring that persons under guardianship don’t get lost in “the system.” Guardianship professionals would benefit from working with, and listening to the concerns of, family advocates to enhance the quality of assistance provided to persons necessarily under guardianship, and to advocate in the legal arena for persons for whom guardianship is not a necessary action.

A healthy discussion between guardianship professionals and family advocates is a worthwhile endeavor. We should encourage open discussion at the local, state, and national level. We all become stronger advocates for persons in need of protection when we work together.

Citations
1 Fred Bayles and Scott McCartney, Guardians
of the Elderly: An Ailing System, Associated Press, 1987.

2 Unif. Adult Guardianship and Protective Proceedings Jurisdiction Act, http://www.uniformlaws.org/Act.aspx?title=Adult%20Guardianship%20and%20Protective%20Proceedings%20Jurisdiction%20Act.

3 Catherine Falk Organization, http://catherinefalkorganization.org.

4 The Peter Falk Bill, http://catherinefalkorganization.org/the-catherine-falk-story/#tab-id-3.

5 S.B. 232 (Fla. 2016), https://www.flsenate.gov/Session/Bill/2016/0232.

6 John Pacenti, Palm Beach Post, Guardianship: A Broken Trust, http://www.mypalmbeachpost.com/guardianships-colin-savitt/, 2016.

7 H.B. 39 (Tex. 2015), http://www.legis.state.tx.us/tlodocs/84R/billtext/html/HB00039F.HTM.

8 H.B. 39, Sec. 23, Supported Decision Making Agreement Act, (Tex. 2015).

9 H.B. 2665 (Tex. 2015), http://www.legis.state.tx.us/tlodocs/84R/billtext/pdf/HB02665I.pdf#navpanes=0.

About the Author
Catherine Anne Seal, CELA, CAP, is NAELA President and a NAELA Fellow. She is a partner at Kirtland and Seal, LLC, Denver, Colo.