What is a Guardian Supposed to Do, Anyway?
By Erica Wood, JD, Assistant Director, American Bar Association Commission on Law and Aging
August 01, 2016
We’ve all heard of good, bad and mediocre guardians. We’ve seen the press stories raging about exploitive guardians. There are no statistics, yet we know that guardian practice ranges from the heroic to the sufficient to the deficient to the abusive – it’s the proportions that are not clear. But encountering a guardian up close and personal – or being one, or having one – makes you want to reach for a yardstick to see how well the guardian measures up. Or at least to have a framework for thinking about it.
Of course, there’s usually some guidance in your state’s guardianship statute. But that’s often pretty general – provide care and custody, make personal and financial decisions, turn in annual reports. Sometimes courts require or provide initial training, or maybe a handbook or video, and a few states have certification for professional guardians.
That’s not enough, and often there’s nothing at all. Guardians perform one of society’s most difficult roles. Stepping into someone else’s shoes is an arduous task. Guardians constantly have to negotiate the tension between safety and self-determination. They are “fiduciaries” with a high duty of care and accountability. They have duties both to the person and the court. They may be caught in the crosshairs of high conflict family situations. They have to know – or know where to find out – about health care, affordable housing, accessibility, long-term supports and services, mental health, public benefits, investments, tax, community services, assistive technology, accounting, supported decision-making, ethics and conflict of interest and more. And the players and rules are constantly changing. In short, being a guardian is a job for a super hero, yet most family or lay guardians come to it unprepared, and even professional guardians need more guidance.
What ultimately is needed is a source of ongoing support and technical assistance, so as questions come up, guardians have somewhere to turn for timely and practical guidance at the local level.
But short of that, there is at least a set of standards that offers a sound framework. It is the National Guardianship Association’s 2013 Standards of Practice, at http://www.guardianship.org/documents/Standards_of_Practice.pdf . Some states have similar standards or have adopted or adapted the NGA Standards. The NGA standards originally were high quality professional standards – but they became quite remarkable with the incorporation of the 2011 Third National Guardianship Summit standards. This means the thinking of some of the nation’s key judicial, legal, aging and disability, and elder justice experts and advocates is threaded throughout.
Suppose you are a care manager or APS staff, and you find out the guardian is restricting the visits of the person’s sister because “they always fight and it upsets her.” You look in the Standards and it says “The guardian shall encourage and support the person in maintaining contact with family and friends, as defined by the person, unless it will substantially harm the person” and “The guardian may not interfere with established relationships unless necessary to protect the person from substantial harm.” So you first ask the person subject to guardianship, if she can communicate, whether she wants to see her sister, and you try to find out the pattern of their relationship. Maybe you suggest the guardian start with a short or supervised visit if there is risk. When you talk with the guardian, you have something substantial to back you up.
Suppose you are a guardian who is thinking of selling the person’s home because she is in assisted living, and needs the money to pay for the care. We’ve all heard stories of someone returning from an institution or residential setting to the shock of finding their home and belongings are gone. Your jurisdiction may require court approval, and the Standards call for “judicial, administrative, or other independent review.” But the Standards also say that “the guardian shall have a strong priority for home or other community-based settings, when not inconsistent with the person’s goals and preferences,” and they offer a list of 11 specific practical factors to consider in selling a person’s property of any kind — including of course the person’s previously expressed or current desires, but also including the benefits, tax consequences, effect on entitlements, maintenance and more. This kind of due diligence, “person-centered” checklist is what guardians need to shape their thinking and to help them document their decision.
Each of these specific standards is backed up throughout the overall document with more general standards on decision-making that promote self-determination to the extent possible, as well as continued evaluation of options.
Unless so designated by your state’s law or your court’s rules, the NGA Standards are not legally enforceable, but they offer a solid measure as to what “good guardianship” – short of a less restrictive option including supported decision-making – should mean. The NGA Standards are a too little known gem.