July 14, 2021
Most guardianships and conservatorships never make the news or trend in social media, but deserve our attention, nonetheless. Guardianships and conservatorships are granted by state or tribal courts for a person to make personal and/or property decisions for another person. These rights may include the right to manage one’s own finances and property, the right to make medical decisions, the right to marry, the right to enter into contracts, and even the right to vote. A guardianship is granted when a person is found by a court of law to be unable to make such financial and personal decisions for themselves. Individuals who receive guardians may have dementia, severe mental illness, traumatic brain injuries, or may be developmentally disabled.
In 2020, the National Center for State Court conducted a survey of guardians, judges, court staff, attorneys, Adult Protective Services (APS) staff, and others. Over 500 people from 46 states and Washington, DC responded to the survey. This survey modeled previous surveys conducted in 2006 and in 1991.
While the survey results demonstrate that improvements in monitoring practices are evident, especially in the use of technology, critical needs remain in the areas of staffing and improved data collection. Areas, where improvement is needed, include routinely requiring future care plans, vigorously reviewing annual accounting and well-being reports, making regular visits to individuals under guardianship, and holding periodic hearings to assess the continuing need for the guardianship. These steps are necessary to prevent and detect negligence or malfeasance. They are also necessary to ensure the use of the least restrictive alternative available to protect the person given that an individual’s needs change over time.
According to a third of survey respondents, funding for monitoring is unavailable or clearly insufficient – a lack that was especially strongly expressed by judges and court administrators. Nearly half the guardians stated that they can file reports online and compared to earlier findings, the courts’ overall use of technology seemed to have progressed significantly. Still, basic data elements like the guardianship powers sought and granted are not routinely captured; complaints are only tracked in approximately a quarter of courts represented.
The complete survey, along with NCSC’s newest resources to help judges to consider the actions they can take to prevent and respond to financial abuse, can be found on the website for the Center for Elders and the Courts.
The survey report was developed under grant number SJI-17-N-201 from the State Justice Institute. The points of view expressed are those of the authors and do not necessarily represent the official position or policies of the State Justice Institute.
How is your court addressing the needs associated with guardianships and conservatorships?