Category: Issue 1

In 1997, the National Conference of Commissioners on Uniform State Laws (NCCUSL)1 adopted the revised Uniform
Guardianship and Protective Proceedings Act (UGPPA). The 1997 version contains significant revisions to the UGPPA, especially to Articles 1 and 3. After a two-year process of debate, drafting, and revisions, the Commissioners adopted the final version of the Act.

It is now ten years after the adoption of the UGPPA6 and issues in guardianship law have evolved since its adoption. In the past ten years, more emphasis is being placed on court monitoring, mediation has been used to resolve some disputes in guardianships, significant issues regarding interstate and cross-border guardianships have developed, a new Uniform Power of Attorney Act has been adopted, a uniform act for resolving guardianship-jurisdiction questions was adopted, and the Uniform Trust Code was adopted.

The durable power of attorney, widely used in every jurisdiction, is a statutorily sanctioned vehicle for creating an agency relationship that survives the principal’s incapacity. The Uniform Probate Code first included durable power provisions in 1969 to offer an inexpensive method of surrogate decisionmaking. Although originally promoted as beneficial for those whose modest assets did not justify pre-incapacity planning with a trust or post-incapacity property management with a guardianship, the durable power of attorney is now used by both the wealthy and non-wealthy for incapacity planning as well as convenience. After more than three decades of using durable powers of attorney, we have the benefit of common experiences, best practices, and legislative trends to inform our assessment of durable powers as an alternative to guardianship. This Article examines that aggregate experience to distill important lessons not only for the use of durable powers, but also for legislative reform to improve their efficacy as a means of surrogate property management.

I want to ask a simple question. Just what is the relation of a guardian to the ward? Certainly, it is a fiduciary relationship, with the guardian having a duty of care and loyalty to the ward, but that does not quite capture it. A guardian is a particular type of fiduciary; one different in authority and accountability from, say, a trustee acting under a trust instrument or a corporate director whose authority derives from the shareholders and who is accountable to them. The fiduciary duties of both a trustee and corporate director are created by private arrangements. Courts become involved, if at all, only when the private arrangement breaks down—when those to whom the fiduciary owes a relationship, the shareholder or the beneficiary of the trust, do not receive satisfaction from the fiduciary.

Elder law attorneys, guardians, conservators, and judges are frequently faced with sorting out complex jurisdictional issues caused by our society’s increasing mobility. For example, a person with declining capacity may need the assistance of a guardian, but if she has spent time in more than one jurisdiction, or needs to be moved to another area to receive care, where should the guardianship petition be filed? If two or more probate courts have jurisdiction, which is the more appropriate forum to hear the matter? After a guardian has been appointed, can that guardian place the ward in a nursing home in another jurisdiction? Will the conservator be able to transact the ward’s business in another state? If the court in another state appointed the guardian, will its order be given full faith and credit by another jurisdiction? Which court will oversee the guardianship if the ward, guardian, or both move to a different state? What criteria should the court employ to determine if it has jurisdiction to appoint a guardian for an incapacitated person who is temporarily located in the state or for a resident who is now living in a long-term care facility in another state?

In 1991, the American Bar Association (ABA) Commission on the Mentally Disabled and Commission on Legal Problems of the Elderly conducted a national study on guardianship monitoring and recommended steps courts could take to strengthen guardian accountability (1991 ABA study). The intervening fifteen years have seen vast changes in demographics, court technology, and adult guardianship law. These developments provide a compelling need to review guardianship-monitoring practices and assess changes since the ABA study. Therefore, in 2005 the AARP Public Policy Institute, in conjunction with the ABA Commission on Law and Aging, conducted an updated survey to examine current court practices for guardian oversight (2005 AARP survey). This Article presents the 2005 survey findings.

When Winsor C. Schmidt and colleagues conducted their landmark national study in the late 1970s, public guardianship was a fairly new phenomenon and public guardianship practices were highly irregular. No further study on a national level was conducted and published until that of Pamela B. Teaster and colleagues in 2005. In the twenty-five intervening years, the following converging trends escalated the need for guardianship: the “graying” of the population (with a sudden upward spike anticipated around 2010 when the Boomers begin to come of age); the aging of individuals with disabilities and the aging of their caregivers; the advancements in medical technologies affording new
choices for chronic conditions and end-of-life care; the rising incidence of elder abuse; and the growing mobility that has pulled families apart. In response, most states reformed their adult guardianship laws, and many enacted public guardianship programs. Private non-profit and for-profit guardianship services emerged alongside public guardianship, with little known about how they function. Against this backdrop, and because of the length of time elapsed, it was imperative to conduct a second national study of public guardianship. The purpose of the 2005 study was to make findings and recommendations to improve care for public guardianship wards⎯persons unable to care for them selves and typically poor, alone, or “different,” with no other recourse than to become wards of the state.

There are many sides of guardianship adjudications. Attorneys may find themselves on any one of those sides at any given time. This Article reviews the many sides of the guardianship adjudication process and addresses the core ethical considerations that attorneys have regardless of which side is represented. The analysis then turns to specific client-attorney situations framed in guardianship-adjudication case studies, offering ethical analysis in the context of the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules). The Article also references the ethics analysis and commentary found in several other professional legal publications, including the newly published Aspirational Standards and Commentaries of the National Academy of Elder Law Attorneys (NAELA) and the newly published fourth edition of the Commentaries of the American College of Trust and Estates Counsel (ACTEC).

After entering the United States, two Mexicans in their early twenties met with two men at the Georgia-Florida border. The men offered them a paying job at their Chinese restaurants throughout Florida. Soon after accepting the job offers, the Mexicans learned that they would not receive payment even though they were working up to twenty hours a day, preparing food, handling hot pans of burning oil without protection for their hands, and traveling at night to other locations where the men forced them to work. The men gave the Mexicans three options: continue working without trying to escape and without reporting the abuses, be killed, or go to jail for being an illegal immigrant. After the Mexicans demanded payment, the men drove them near Plant City and abandoned them on the side of a road. Despite not speaking English and not knowing the area, the Mexicans ultimately found refuge at a Baptist church.

In the early 1930s, Alfred Sawyer was charged with using an illegal net to catch fish in Florida waters and was arrested and thrown in jail. Mr. Sawyer did not deny that he was using the net described in the charging document. However, Mr. Sawyer believed that his use of the net occurred outside of Florida waters in the Gulf Stream. If true, then he could not have been guilty of the crime charged. Mr. Sawyer sought relief by filing a petition for a writ of habeas corpus. At the hearing, Mr. Sawyer testified that he was not in Florida waters when he used the net and, in support of his contention, introduced as evidence a marine chartused by the United States Navy. The State did not introduce any
evidence to contradict Mr. Sawyer’s contention, and the trial judge granted Mr. Sawyer’s petition.

On appeal, the Florida Supreme Court reversed. The Court held that defendants may not use a petition for a writ of habeas corpus to test the sufficiency of the evidence against them. So long as the State filed a charging document that was facially valid, which it did, the sheriff was empowered to detain Mr. Sawyer until his trial. It did not matter that, based on the undisputed facts, Mr. Sawyer could not be found guilty of the crime charged. Mr. Sawyer’s only recourse was to wait until trial and then, upon the State’s failure to prove that Mr. Sawyer used the net in Florida waters, to motion for a directed verdict. Until then, Mr. Sawyer was stuck in jail.