In July of 1988, the American Bar Association Commission on Legal Problems of the Elderly and Commission on the Mentally Disabled convened a National Guardianship Symposium that became known as Wingspread, after the conference center of that name in Racine, Wisconsin. The 1988 Wingspread Symposium produced a set of landmark recommendations for reform of the nation’s guardianship system. Wingspan—The Second National Guardianship Conference, was convened November 30 through December 2, 2001, more than a decade after the original 1988 Wingspread Symposium, to examine the progress made in the interim, and the steps that should be recommended for the future with respect to guardianship law, policy, and practice.
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The American judicial system has seen much change in the years following the 1988 National Guardianship Symposium, known as Wingspread. Two components of this change—the burgeoning use of “alternative dispute resolution” (ADR) and the proliferation of adult guardianship cases—have proceeded virtually independently of each other. The purpose of this Article is to explore the potential for integration of a specific form of ADR—mediation — into the adult guardianship system.
There has been considerable debate about the role of the appointed attorney for the alleged incapacitated person in a guardianship case. On one side are those who believe that the attorney should be an advocate for the alleged incapacitated person, argue zealously against the guardianship, and try to limit the extent of the powers of the guardian. According to the ABA Model Rules of Professional Conduct, the attorney must treat the subject of the guardianship as any other client. The attorney must follow the dictates of the client, regardless of whether there is evidence enough to support those ideas, or whether the attorney agrees with what the client wants.
On the opposing side of this argument are those who believe the attorney should substitute his or her judgment for that of the incapacitated person and act as a guardian ad litem. In this role, the attorney determines what is in the best interest of the person who is the subject of the guardianship. The attorney uses his or her own judgment to decide whether the person is competent, investigates the situation, and typically files a report with the court advocating what the attorney decides is in the best interest of the client.
Guardianship comes within the special province of judges. In the great majority of guardianship hearings, there is no jury. The presiding judge is the sole arbiter of whether the alleged incapacitated person meets the legal standard of mental incapacity and whether that person would benefit from the appointment of a guardian. If a guardian is appointed, the judge determines the type and extent of the powers granted to the guardian. Of course, the judge is not simply free to follow his or her own instincts or desires, for the judge is bound to determine the facts carefully and apply the law faithfully. Still, as the saying has it, “reasonable persons can disagree,” and the judge has some latitude in how he or she responds to the facts and circumstances that arise during the guardianship hearing. Within that zone of discretion, the judge may have a range or set of choices, any of which is defensible on legal and ethical grounds. No matter which course of action the judge takes, his or her decision is unlikely to be overturned on appeal. How, then, does a judge decide what to do? Put another way, what motivates a judge who presides at a guardianship hearing and how do those motivations translate into judicial action?
The purpose of this Article is twofold: First, to examine one state’s (California’s) legal framework governing adult protective proceedings (“conservatorships”) and aspects thereof specific to the litigation process1 and, second, to review the state of the law nationally regarding the liability exposure of lawyers for guardians and conservators to malpractice claims by wards or conservatees injured by a misguided, fraudulent, or negligent conservator or guardian.
The first part of this Article discusses California’s procedural and substantive rules governing conservatorship proceedings with an emphasis on issues arising in litigation. The second part, taking a national approach, discusses the competing theories used in determining whether the attorney for a guardian or conservator may be held liable in a malpractice or other tort action brought directly by the ward or conservatee.
Plenary guardianship is an extreme measure; the appointment of a guardian can result in the serious deprivation of a person’s rights. In the best of circumstances, a person of severely diminished capacity may be well served by a trustworthy and conscientious guardian who acts as a protector and advocate. In the worst of circumstances, the guardian might deprive the ward of any meaningful participation in the decisions that affect the ward’s life and might even exploit and abuse the ward.
Adult guardianship can be viewed as having a “front end” (the determination of incapacity and appointment of a guardian) and a “back end” (accountability of the guardian and court monitoring). The Associated Press, in its landmark 1987 report Guardians of the Elderly: An Ailing System disparaged both. It charged that guardianship in the United States “regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect.” The guardianship system cannot function effectively unless both “ends” are in working order. This paper is about the “back end.” The Authors review the Associated Press’s charge, the 1988 American Bar Association (ABA) Wingspread conference recommendations on guardianship monitoring, and what has occurred since then. It asks where we stand now, what barriers block effective monitoring, and what imaginative, yet practical steps we can take to bolster guardian accountability.
An estimated one-fourth of guardians for aged and disabled adults are corporate employees, or other professionals or practitioners, rather than family members. Many are lawyers, who may practice individually, in limited-liability corporations, or in partnerships. Non-lawyers also may establish guardianship practices. Some are social workers or accountants by profession, but most states require no such professional affiliation. In addition, states now provide public-guardian services for those who have no voluntary assistance and cannot pay. Any guardianship organization may utilize volunteers to provide services to individual wards, and then the volunteers become the agents of the organization.
In his 1881 treatise, The Common Law, Justice Oliver Wendell Holmes, Jr. said, “The life of the law has not been logic: it has been experience.” What is the experience of guardianship?
“Guardianship” is the authority of a guardian, and the relationship between guardian and ward. A “guardian” manages
the person and property of another, the “ward,” who is considered to be incapable of self-administration. Although the purpose of guardianship is management for another, we must [r]ecognize guardianship for what it really is: the most intrusive, non-interest serving, impersonal legal device known and available to us and as such, one which minimizes personal autonomy and respect for the individual, has a high potential for doing harm and raises at best a questionable benefit/burden ratio. As such, it is a device to be studiously avoided.
At the age of thirteen, a Jewish male ordinarily celebrates a Bar Mitzvah ceremony, and a Jewish female celebrates a Bat Mitzvah ceremony. This event symbolically signifies the individual’s entry into the adult community. The modern era of guardianship reform in the United States recently celebrated the functional equivalent of a Bar or Bat Mitzvah, as a broad array of legal academicians, practitioners, and judicial experts in the field gathered for two days at the end of 2001 at Stetson University College of Law for Wingspan—The Second National Guardianship Conference. We met for the assigned purpose of reviewing and revising the recommendations made exactly thirteen years prior at the National Guardianship Symposium, convened in 1988 and known as Wingspread. The 1988 Wingspread Symposium was organized in reaction to revelations of the Pulitzer-Prize winning Associated Press initiative on guardianship in the mid-1980s. By undertaking this event at Stetson, the current guardianship-reform movement attempted to continue its evolution from an adolescent to an adult endeavor, understanding and accepting both the satisfactions and the responsibilities that the latter entails. Like the dreaded great uncle who later grades the performance of the Bar-or-Bat-Mizvah-celebrant in reading from the Torah during the ceremony, I accept this opportunity to offer a few brief reflections on the discussions that I heard during the 2001 Wingspan Conference, during which participants struggled with the challenge of a contemporary movement’s entry into the adult community of law and social policy.