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.
The right to be free from racial discrimination is such an important right that the Supreme Court will go to almost any length to protect it, even if it means manipulating the law to obtain a desired result. The Court’s recent decision in Brentwood Academy v. Tennessee Secondary School Athletic Association suggests that the Court has added the First Amendment to the limited class of rights that it will preserve regardless of the means necessary to do so.
The rights guaranteed by the United States Constitution are protected from actions taken by only the local, state, and federal governments, and not from the actions of private individuals. As a result of the Constitution’s limited reach, for a private party to be held accountable to constitutional standards, the private party’s conduct must amount to government action. A private party will be considered a government actor when the private party’s alleged infringement of constitutional rights is “fairly attributable to the State.” The Supreme Court has identified several tests that it purports to use to determine whether a private party’s actions constitute government action, but always with the proviso that “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” The effect of this caveat is that, in reality, the government-action issue is decided after examining the plaintiff’s underlying complaint, irrespective of any particular government-action test. The government-action doctrine gives the Court a mechanism for prohibiting private discrimination when the private party has at least some connection to the government. The Court rarely finds government action by a private party unless the underlying complaint is racial discrimination, which demonstrates that racial equality is at the forefront of the rights the Court most wants to protect.
How colleges and universities confront campus crime changed forever with the April 5, 1986 murder of Jeanne Ann Clery in her Lehigh University residence hall room. Jeanne’s parents, Howard and Connie, soon discovered a history of campus violence and security problems that students and parents had not been told, not only at Lehigh, but at schools across the United States.
The Clery family joined other families who had experienced campus violence to spearhead a successful effort, first in Pennsylvania, then in nine other states, to enact laws that require public and private institutions of higher education to report campus crime statistics. In 1987, the Clerys also founded a nonprofit victim-assistance-and-advocacy organization, Security on Campus, Inc., using money from a settlement with Lehigh University.
April 5, 1986 was one of those days that changes everything, or at least, that is how many in higher education have come to feel. This was the day that Jeanne Clery was “tortured, raped, sodomized and murdered2 at Lehigh University in Pennsylvania. This event, and Jeanne Clery’s parents’ response to it, has made lasting impressions on campus safety. The Clerys’ response to this tragedy resulted in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act or Act). Whether one agrees with the necessity or effectiveness of this legislation, or whether it has positively impacted campus safety or not, everyone can agree that the Clery Act has increased awareness of crime on American college campuses. The mere fact that a special edition of this law review is being devoted to campus safety illustrates the impact that the Clery Act has had on higher education. The Act certainly has raised the awareness about campus crime and campus-safety issues, and the commentary about it in the higher-education, legal, and popular press has been extensive.
Elected officials at all levels of government pass laws in response to issues that rise to the top of their policy agenda. Laws serve two functions: (1) symbolic and (2) substantive. The symbolic function of law includes such goals as reaffirming cherished values and showing that “something is being done” about a perceived social problem. The Clery Act1 is one such law. It appeases the interests of those who advocated for, or perhaps were interested in, its passage, regardless of its substantive impact. The substantive function of law, on the other hand, involves introducing changes that have demonstrable utility — changes that essentially help to alleviate or solve the problem the law addresses.