The Need for Improved ADULT GUARDIANSHIP Data

Article excerpt

"We are all aging, but unfortunately, I cannot say with confidence that if any one of us becomes incapacitated that a robust system is in place to protect our persoli and our financial assets." ''

Senator Gordon H. Smith

The U.S. Senate's Special Committee on Aging has noted that the current guardianship system is not fulfilling its promise, and called for the development of new models of guardianship for the elderly.'-' The starting point of any major reform is an accurate picture of the policy in need of reform; in this case, that means at a minimum that states are able to count the number of incoming and outgoing adult guardianships in the state courts. Unfortunately, the current caseload data on these cases is woefully deficient.

Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another (the ward). Guardianships were designed to protect the interest of incapacitated adults, and elders in particular. Guardianship is defined by state laws diat vary from one state to die next In general, a Guardian of die Person is a guardian who possesses some or all power with regard to the persona! affairs (heaJUi and welfare) of die individual, while a Guardian of the Estate is a guardian who possesses some or all powers with regard to die real and personal property of the individual (often referred to as conservators or fiduciaries). In many cases, this is the same person. In most states, die probate division handles guardianship cases. In other states, general jurisdiction courts or divisions other dian probate have oversight of guardianships.

Due to the seriousness of being incapacitated and the loss of individual rights that it implies, guardianships are considered to be an opdon of "last resort." The court can order either a full or limited guardianship for incapacitated persons. Under full guardianship, wards relinquish all rights to self-determination, and guardians have full authority over their wards' personal and financial affairs: Wards lose all fundamental rights, including the right to manage their own finances, buy or sell property, make medical decisions for themselves, get married, vote in elections, and enter into contracts. For this reason, limited guardianships - in which the guardian's powers and duties are limited so that wards retain some rights depending on their level of capacity - tend to be preferred. Once a guardianship has been appointed, the court is responsible for holding the guardian accountable through monitoring and reporting procedures for the duradon of the guardianship. The court has the authority to expand or reduce guardianship orders, remove guardians for failing to fulfill their responsibilities, and terminate guardianships and restore the rights of wards who have regained their capacity.

Court assignment and oversight of guardians and conservators have been the focus of media attention both statewide and nationally. For instance, in June 2003, the Washington Post published several articles detailing massive neglect and exploitation by court-appointed attorney guardians in the District of Columbia.3 In 2004 and 2005, a series of articles in the Dallas Morning News spodighted problems with guardianships in Texas, also detailing neglect.4 In November 2005, the Los Angeles Times, in a report following the examination of more than 2,400 conservatorship cases, found that "judges frequently overlooked incompetence, neglect and outright theft."5 According to the authors, "Probate judges say that they do their best, but that the courts are swamped with cases and short of staff." Most recendy, The Denver Post, in a February 2010 article, criticized probate court practices and noted that the state court system could not provide data on guardianships because reporting methods varied from court to court.6

Two factors weigh heavily in the future of the court's ability to properly respond to the problems associated with the guardianship process. …