Guardianship: Key Concepts and Resources

What is the role of state law in guardianship cases?

Guardianship is governed by state law. Each state has its own set of guardianship laws, and they vary.

States use different terminology. The What rights are at stake in a guardianship case?

Guardianship may remove a broad spectrum of rights from an individual. While there is some variation from state to state, when a court appoints a guardian, that court may remove the individual’s right to:

• Determine residence
• Consent to medical treatment
• Make end-of-life decisions
• Possess a driver’s license
• Manage, buy, or sell property
• Own or possess a firearm or weapon
• Contract or file lawsuits
• Marry
• Vote

Recent trends in law and practice reflect the idea that courts should remove only those rights that the adult is incapable of handling (i.e., limited guardianship). The court order appointing a guardian should specify the scope of the guardian’s authority.

How are guardians appointed?

• Petition – someone files a petition with the court seeking appointment of a guardian for a person alleged to be incapacitated. In most states “any person” may file such a petition. Petitioners are frequently family members, friends, community members, health care providers, organizations and government agencies.
• States must provide due process protections for an individual who is the subject of the petition (see below).
• Before a hearing, the court may appoint an attorney for the individual if they do not have one to advocate on their behalf.
• The court may direct a court visitor, investigator, examining committee or guardian ad litem to assist the court.
• The court receives evidence (e.g., testimony, written capacity assessment) at a hearing on whether the individual is incapacitated and in need of a guardian—a legal, not medical, finding.
• The court may grant the petition, modify it, grant fewer powers than requested and may decide who to appoint. The court also may dismiss the petition.

What are the due process protections for an individual who is the subject of a guardianship petition?

Because individuals are at risk of losing independence and decision-making authority, state laws lay out protections for the person named in the court petition, such as the right to:

• Receive notice of the petition
• Be represented by an attorney
• Have a hearing on the need for a guardianship
• Be present at all court proceedings
• Compel, confront and cross-examine all witnesses
• Present evidence
• Typically have the need for guardianship proven by “clear and convincing evidence”
• Receive notice of all court orders
• Appeal the determination

Once appointed, are there standards for guardians to follow in making decisions?

Guardians must follow the court order appointing them as well as state laws in making decisions for a person subject to guardianship. But most guardianship laws and court orders typically provide only general help for guardians on how to make decisions, and guardians often need further guidance from standards of practice.

The National Guardianship Association has Ethical Principles and Standards of Practice that provide such guidance. The standards explain that guardians stand in the individual’s shoes when making decisions. The guardian should involve the person in decision-making to the greatest extent possible.

• First, the guardian should ask the individual to make a choice and help the individual to express it
• If not possible, the guardian should determine what the person would have wanted when the person had capacity to make the decision
• Only if the person’s goals and preferences cannot be determined, the guardian may make a decision based on what the guardian determines to be the person’s best interest.

What is person-centered planning?

The person subject to guardianship should be at the center of all decisions and plans for the future. “Person-centered planning” refers to approaches designed to guide change and continuity in a person’s life. The guardian should aim to understand the unique characteristics of the person and ensure that the person has positive control of his or her life and is supported within their community. The guardian must actively engage the person in the planning process and enable the person to drive the planning process to the maximum extent possible. Where it would help the guardian to identify and follow the goals and preferences of the person, the guardian should involve appropriate family members and friends.

Guardians should develop and implement written plans setting forth short-term and long-term objectives. A number of states’ laws require that guardians submit plans of care to the court. The National Guardianship Association’s Standards of Practice (Standard 13) require the development and implementation of a plan using a “person-centered philosophy.”

The What role does the court play in monitoring a guardian after appointment?

States require that guardians of the person file with the court periodically (usually annually) a report on the person’s well-being. Similarly, guardians of the property must file annual or periodic accountings after filing an initial inventory of the person’s money and property. State law varies as to whether the court has specific procedures it must follow to monitor guardianships. UGCOPAA requires that the court have procedures for monitoring guardians’ reports and determining whether the reports sufficiently indicate that the guardian has complied with his or her duties. The extent of court oversight in practice varies tremendously. For guidance on court monitoring, see Guardianship Review Protocol: Accounting Protocol or Well-Being Protocol.

The UGCOPAA also requires the court to identify persons interested in the individual’s welfare, who are to be given notice of certain key changes or suspect actions and can serve as additional “eyes and ears” for the court.

Courts may take complaints against guardians, and a few states have a specific complaint process spelled out in their laws. Upon receiving a complaint, the court may investigate the guardian’s performance. Courts may hold hearings on complaints and order guardians to take specific actions, such as allowing family member visits.

Is there a way to end a guardianship?

The guardianship typically ends when the individual dies. However, courts may terminate the guardianship while the person is still alive in order to restore the person’s rights.

Restoration generally occurs in one of the following situations:

• The person’s condition improves, and they no longer require the help of a guardian.
• The person’s support systems improve and a less restrictive alternative can be used to meet the individuals’ needs
• There is evidence to show that the person does not need a guardian.

The individual, or anyone concerned about the individual’s rights, can petition the court to request that the guardianship be terminated – or at least modified to regain some of the rights.