Guardianship Reform: The Debate between Safety and Autonomy

By Kapp, Marshall B. | Aging Today, September/October 2004 | Go to article overview

Guardianship Reform: The Debate between Safety and Autonomy


Kapp, Marshall B., Aging Today


Throughout the world, modern legislative, regulatory and judicial entities have spawned an impressive body of law intended to protect and improve the rights and well-being of older people and the quality of their lives. This legal corpus takes the form of statutes, regulations and judicial precedents, which often authorize governmental or private interventions into the life of an older person-with or without the elder's permission and sometimes over the person's active objections-for the purpose of "helping" him or her.

However, a concept that has emerged in recent years, called therapeutic jurisprudence, provides an analytic model for testing the efficacy of measures in elderlaw. According to this new concept, proponents of particular legal interventions must justify intrusions into otherwise private territory by showing sufficient, real benefits for those the law is supposedly intended to help. Law professor David Wexler, one of the developers of the concept, has written, "The therapeutic-jurisprudence perspective suggests that the law itself can be seen to function as a kind of therapist or therapeutic agent. Legal rules, legal procedures and the roles of legal actors . . . constitute social forces that, like it or not, often produce therapeutic or antitherapeutic consequences. Therapeutic jurisprudence proposes that we be sensitive to those consequences, rather than ignore them, and that we ask whether the law's antitherapeutic consequences can be reduced and its therapeutic consequences enhanced."

A thorough gerontological analysis of therapeutic jurisprudence can be especially illuminating in an area such as guardianship law. Every state has enacted statutes that empower the courts to appoint a surrogate decision-maker, most commonly called a guardian but sometimes designated as a conservator, with authority to make choices on behalf of a ward with mental impairments. One of the most vexing problems confronting the families of many older people, professional service providers, financial institutions, lawmakers and others is what to do about individuals-many but not all of whom are older-who have cognitive or emotional deficits that impair their ability to manage and make decisions about their financial or personal affairs.

In the United States, one of the primary responses to this challenge has been to create an extensive system of legal guardianship programs for people with disabilities. A 1987 Associated Press series titled "Guardians of the Elderly: An Ailing System," which won a Pulitzer Prize, inspired a strong national movement to reform state guardianship laws. In 1988, the commissions of the American Bar Association that focus on the legal problems of elders and of people with disabilities held a major conference on guardianship issues at the Wingspread Conference Center, Racine, Wis., and developed a consensus report, a comprehensive "Agenda for Reform." Guardianship reform efforts continue unabated. In 2001, for example, 16 states enacted 26 statutes related to guardianships.

In December 2001, however, a broad array of guardianship experts gathered for two days at Stetson University School of Law in Florida for what was labeled the Wingspan Conference, the second national conference on these issues. Much of the debate at Wingspan centered on the perceived consequences, positive and negative, attributable to post-Wingspread changes in state guardianship laws and practices.

The most striking aspect of Wingspan was the extent of vigorous disagreement among conference participants regarding the fundamental nature, goals and methods of the contemporary U.S. guardianship system.

The Wingspan assembly appeared to be quite uncertain about the basic purpose of the legal structure encasing guardianship. Some believed guardianships ought to protect the autonomy rights of heroically independent individuals seen to struggle valiantly against the unwelcome, paternalistic intrusions of either self-interested or well-meaning but frequently misguided family members, healthcare providers, financial institutions or other third parties. …

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