"As global citizens, it is our responsibility to become active participants in our democracy, and to make sure that everyone's civil rights are protected."

Robert Alan Siverstein

A GUARDIAN is an individual or organization named by court order to exercise some or all powers over the person and/or the estate of an individual.

A GUARDIAN OF THE PERSON is a guardian who possesses some or all powers with regard to the personal affairs of the individual.

A GUARDIAN OF THE ESTATE is a guardian who possesses some or all powers with regard to the real and personal property of the individual.

Overall, the ongoing responsibilities of the guardian include:

Carrying out the duties and responsibilities granted to her/him by the court.

Abiding by any restrictions, either by statute or court order, placed on her powers. For example, a guardian is not allowed to consent to sterilization, psychosurgery, electroshock, experimental procedures, or any other medical procedure which violates known conscientious, religious or moral beliefs of the protected person without prior order from the court.

Consulting with the protected person regarding decisions to be made on her behalf, to the greatest extent possible, considering her level of impairment.

Maintaining a current understanding of the needs of the protected person. This includes having current knowledge of the protected person’s diagnosis, prognosis, actual and recommended treatments, care plan and needs through regular visits with the protected person as well as frequent contacts with service providers.

Monitoring the care being provided to the protected person, arranging for appropriate care, and intervening on behalf of the protected person if neglect or abuse is occurring.

Seeking out services and benefits/ entitlements which the protected person may need or is eligible for, and ensuring that the protected person receives all services and benefits to which she is entitled.

Advocating for the rights of the protected person and speaking for her in situations where she cannot speak up for herself.

Respecting the freedom of choice of the protected person and encouraging her independence and autonomy, to the greatest extent possible.

Regularly reassessing the protected person’s need for a guardian and the appropriate level of guardianship.  It is the guardian’s duty to return to court to legally reduce or remove the guardianship if her condition improves.

Initiating or responding to a request to conduct a review of the guardianship.

Keep information regarding the protected person or conservatee  confidential and release it on a “need to know” basis only. That means that sharing the information would be beneficial for the protected person, not just for family members or others.

While maintaining as much confidentiality as possible, the guardian who is not a family member should keep family members informed of protected person’s current condition, especially if her condition is critical.

Support the protected person or conservatee in preserving her dignity, exercising personal preferences and fostering self-reliance and self-esteem.

Protect the rights of the protected person or conservatee and exercise rights on her behalf that she is unable to exercise on her own.

Assist the protected person or conservatee in acquiring new skills and continuing to grow as an individual.

Recognize that, in order to have a full and satisfying life, everyone takes some risks, balanced with the need to remain safe.

Ensure the protected person is placed in the least restrictive environment possible.

Consider the protected person’s or conservatee’s ability to understand and overall level of confusion or anxiety when deciding the kind of information or documentation to share with her.

"At the foundation of our civil liberties lies the principle that denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the citizen."

Justice Louis D. Brandeis

Source: Burdeau v. McDowell, 1921

Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another (the ward or incapacitated person). A judge appoints a guardian upon finding that an adult individual lacks capacity to make decisions for him or herself. Guardianship is a powerful legal tool that can bring good or ill for an increasing number of vulnerable people with cognitive impairments, affording needed protections yet drastically reducing fundamental rights.  Because guardians have authority to make surrogate personal and financial decisions for at-risk individuals, and these “wards” frequently are unable to speak on their own behalf, high fiduciary standards and strict accountability are critical. Court monitoring of guardians is required to ensure the welfare of incapacitated persons, identify abuses, and sanction guardians who demonstrate malfeasance.

Incapacitated elders and younger disabled persons   are at risk of abuse, neglect, and exploitation by guardians with the authority to make surrogate personal and financial decisions.  Although guardianship is a powerful legal tool that can bring good or ill for the increasing number of vulnerable people incapable of making their own decisions.  Because guardianship can be used as a way to remove fundamental rights, guardianship monitoring by courts is critical to identify abuses and remove guardians who abuse or neglect the incapacitated people in their care through action or inaction.  It is important to ensure the welfare of these vulnerable individuals. Adult guardianship is a two-edged sword – a mechanism that protects some of the most vulnerable in our society from abuse, and an instrument that removes fundamental rights and thereby may increase opportunities for abuse of those we strive to protect. Court appointed guardians step into the shoes of at-risk elders and disabled persons making judgments about medical care, property, living arrangements, lifestyle and potentially all personal and financial decisions. Guardianship can both prevent and promote elder abuse. On one hand, a guardian can protect an incapacitated person from abuse, neglect and exploitation. Conversely, without sufficient court monitoring, guardian education and standards, guardians may commit elder abuse, neglect or exploitation or fail to protect an incapacitated person from abuse or exploitation by others.   Judicial monitoring practices still remain inadequate and further strengthening of guardianship statutory safeguards are necessary.

Recent news accounts and research indicate that serious problems persist.

Leonard, Jack, Fields, Robin, & Larrubia, Evelyn. (2005, November 14). Judges’ inaction, inattention leave many seniors at risk. Los Angeles Times.  http://www.latimes.com

Glaberson, William. (2004, March 3). Report calls for overhaul of system that protects the unfit. New York Times. http://www.nytimes.com

Hassett, Kelly. (2005, August 18). Money on hold for 100 clients of ex-guardian, Lansing State Journal. http://www.lsj.com

Attorneys play multiple roles in the guardianship process. They may represent petitioners, guardians, alleged incapacitated persons, or individuals for whom a guardian has been appointed; they also may serve as guardian ad litem as well as taking on the duties of guardian after appointment. Both the court and the attorney must recognize the attorney’s ethical responsibilities throughout the process.

There are a growing number of not-for-profit and for-profit agencies—as well as public guardianship programs— that serve persons who have no family or friends available or qualified to serve as guardian.  With little knowledge of the ward’s life or past religious and moral values, agency guardians frequently make critical care decisions about multiple wards.  Thus with high case loads and insufficient staffing and also poor court supervision or training, individuals with diminished capacity are often at their mercy. 

 In addition there is little general oversight of guardianship reporting and very little on the ground – eyes and ears – of the court to insure that these vulnerable wards are properly cared for and not abused.  A majority of jurisdictions do not require personal visits to the incapacitated individual.  Financial resources are transferred to the guardians thus leaving the individuals with diminished capacity in complete dependency on the guardians’ decisions. All of these trends combine to underscore the dire need for oversight when fundamental rights.

 Proper and accurate financial management of the incapacitated person’s assets is critical, so courts also often require systems to verify and investigate the financial information in accountings. Special auditors, commissioners of accounts, trust clerks and attorneys, or certified public accountants can conduct such investigations. A key question in an investigation of financial information is whether it triggers an inquiry of the incapacitated person’s well-being if a possible problem is uncovered, thus calling for closer judicial scrutiny.

 When guardians violate their duty of care and fiduciary responsibilities toward incapacitated persons, the court must take action. According to the National Probate Court Standards, “the probate court should enforce its orders by appropriate means, including the imposition of sanctions,” and that “where the court learns of a missing, neglected, or abused respondent, it should take immediate action to ensure the safety and welfare of that respondent.”  There are a variety of possible court sanctions including: fines, contempt (declaring that a guardian has disobeyed court orders and will be punished), denial of compensation, suspension, removal, and others.

See state statutory guardianship monitoring chart on the website of the ABA Commission on Law and Aging, http://www.abanet.org/aging/guardian5.pdf.

Third National Guardianship Summit: Standards of Excellence

Guardian Standards

October 2011

#1. Core Standards

Standard #1.1

The guardian shall develop and implement a plan setting forth short-term and long-term goals for meeting

the needs of the person.

• Plans shall emphasize a "person-centered philosophy".

Standard #1.2

The guardian shall treat the person with dignity.

Standard #1.3

The guardian shall make a good faith effort to cooperate with other surrogate decision-makers for the person.

• These include where applicable, any other guardian, conservator, agent under a power of attorney, health care proxy, trustee, VA fiduciary and representative payee.

Standard #1.4

The guardian shall promptly inform the court of any change in the capacity of the person that warrants an

expansion or restriction of the guardian's authority.

Standard #1.5

The guardian shall promptly report to the appropriate authorities abuse, neglect, and/or exploitation, as

defined by state statute.

#2. Guardian's Relationship to the Court

Standard #2.1

The guardian shall seek ongoing education concerning:

• Person-centered planning

• Surrogate decision-making

• Responsibilities and duties of guardians

• Legal processes of guardianship

• State certification of guardians.

Standard #2.2

The guardian and conservator shall keep the court informed about the well-being of the person and the status of the estate through personal care and financial plans, inventory and appraisals, and annual reports and accountings.

Standard #2.3

The guardian shall seek assistance as needed to fulfill responsibilities to the person.

Standard #2.4

The guardian shall use available technology to:

• File the general plan, inventory and appraisal, and annual reports and accountings

• Access responsible education and information about guardianships

• Assist in the administration of the estate.

#3. Fees

Standard #3.1

The conservator, as a fiduciary, shall:

• Disclose in writing the basis for fees (e.g., rate schedule) at the time of the guardian's first

appearance in the action

• Disclose a projection of annual fiduciary fees within 90 days of appointment

• Disclose fee changes

• Seek authorization for fee-generating actions not contained in the fiduciary's appointment

• Disclose a detailed explanation for any claim for fiduciary fees.

Standard #3.2

A guardian shall report to the court any likelihood that funds will be exhausted and advise the court whether

the guardian intends to seek removal when there are no longer funds to pay fees. A guardian may not abandon the person when funds are exhausted in cases in which the spend-down occurred over several

reporting periods and the guardian failed to address the probability of exhaustion with the court and failed to

make appropriate succession plans.

Standard #3.3

A guardian may seek payment of fiduciary fees from the income of a person receiving Medicaid services only after the deduction of the personal needs allowance, spousal allowance and health care insurance premiums.

#4. Financial Decision-Making

Standard # 4.1

The conservator, as a fiduciary, shall manage the financial affairs in a way that maximizes the dignity,

autonomy, and self-determination of the person.

Standard # 4.2

The conservator shall consider current wishes, past practices, reliable evidence of likely choices, and best

interests of the person.

Standard # 4.3

A conservator shall, consistent with court order and state statutes, promote the self-determination of the person and exercise authority only as necessitated by the limitations of the person.

Standard # 4.4

The conservator shall encourage and assist the person to act on his or her own behalf and to participate in

decisions.

Standard # 4.5

When possible, the conservator shall assist the person to develop or regain the capacity to manage the person's financial affairs. The conservator's goal shall be to manage but not necessarily eliminate risk.

Standard # 4.6

The conservator shall value the well-being of the person over the preservation of the estate.

Standard # 4.7

The conservator shall avoid all conflicts of interest and self-dealing, and all appearances of conflicts of

interests and self-dealing.

• The conservator shall become fully educated as to what constitutes a conflict of interest and self dealing,

and why they should be avoided.

• The conservator may enter into a transaction that may be a conflict of interest or self-dealing only

when necessary, or when there is a significant benefit to the person under the conservatorship, and

shall disclose such transactions to interested parties and obtain prior court approval.

Standard # 4.8

The conservator shall, when making decisions regarding investing, spending, and management of the income

and assets, including asset recovery:

• Give priority to the needs and preferences of the person

• Weigh the costs and benefits to the estate

• Apply state law regarding prudent investment practices.

Standard # 4.9

The conservator shall take all steps necessary to obtain a bond to protect the estate, including obtaining a

court order.

Standard #4.10

The conservator shall use reasonable efforts to:

• Ascertain the income, assets, liabilities of the person

• Ascertain the needs and preferences of the person

• Coordinate with the guardian and consult with others close to the person

• Prepare a plan for the management of income and assets

• Provide oversight to any income and assets under the control of the person.

Standard # 4.11

The conservator shall obtain and maintain a current understanding of what is required and expected of the

conservator, statutory and local court rule requirements, and necessary filings and reports.

Standard # 4.12

The conservator shall, as appropriate for the estate, implement best practices of a prudent conservator,

including responsible consultation with and delegation to people with appropriate expertise.

Standard # 4.13

The conservator shall become educated about the nature of any incapacity, condition and functional capabilities of the person.

Standard # 4.14

The conservator shall consider mentoring new conservators.

#5. Health Care Decision-Making

Standard #5.1

The guardian, in making health care decisions or seeking court approval for a decision, shall maximize the

participation of the person.

Standard #5.2

The guardian, in making health care decisions or seeking court approval for a decision, shall:

(a) Acquire a clear understanding of the medical facts

(b) Acquire a clear understanding of the health care options and risks and benefits of each

(c) Encourage and support the individual in understanding the facts and directing a decision.

Standard #5.3

To the extent the person cannot currently direct the decision, the guardian shall act in accordance with the

person's prior directions, expressed desires, and opinions about health care to the extent actually known or ascertainable by the guardian; or, if unknown and unascertainable,

(a) Act in accordance with the person's prior general statements, actions, values and preferences to the extent actually known or ascertainable by the guardian; or, if unknown and unascertainable,

(b) Act in accordance with reasonable information received from professionals and persons who demonstrate sufficient interest in the person's welfare, determine the person's best interests, which determination shall include consideration of consequences for others that an individual in the person's circumstances would consider.

In the event of an emergency, the guardian shall grant or deny authorization of emergency health care to treatment based on a reasonable assessment of the criteria listed in Standard 5.2.

Standard #5.4

The guardian shall monitor, promote, and maintain the person's health and well-being and shall seek to

ensure that the person receives appropriate health care consistent with person-centered health care decisionmaking.

Standard #5.5

The guardian shall seek to ensure that appropriate palliative care is incorporated into all health care.

Standard #5.6

The guardian shall keep persons who are important to the individual reasonably informed of important health

care decisions.

#6. Residential Decision-Making

Standard #6.1

The guardian shall identify and advocate for the person's goals, needs, and preferences. Goals are what are

important to the person about where he or she lives, whereas preferences are specific expressions of choice.

• First, the guardian shall ask the person what he or she wants.

• Second, if the person has difficulty expressing what he or she wants, the guardian shall do

everything possible to help the person express his or her goals, needs, and preferences.

• Third, only when the person, even with assistance, cannot express his or her goals and preferences, the guardian shall seek input from others familiar with the person to determine what

the individual would have wanted.

• Finally, only when the person's goals and preferences cannot be ascertained, the guardian shall make a decision in the person's best interest.

Standard #6.2

The guardian shall fully identify, examine, and continue to seek information regarding options that will fulfill

the person's goals, needs, and preferences.

• Guardians shall take full advantage of professional assistance in identifying all available options.

• These include but are not limited to area agencies on aging, centers for independent living, protection and advocacy agencies, long-term care ombudsmen, and developmental disabilities

councils, aging and disability resource centers, and community mental health agencies.

Standard #6.3

The guardian shall have a strong priority for home or other community-based settings, when not inconsistent

with the person's goals and preferences.

Standard #6.4

The guardian shall make and implement a person-centered plan that seeks to fulfill the person's goals, needs,

and preferences. The plan shall emphasize the person's strengths, skills, and abilities to the fullest extent in

order to favor the least restrictive setting.

Standard #6.5

The guardian shall wherever possible, seek to ensure that the person leads the residential planning process;

and at a minimum to ensure that the person participates in the process.

Standard #6.6

The guardian shall attempt to maximize the self-reliance and independence of the person.

Standard #6.7

The guardian shall seek review by a court or other court-designated third party with no conflict of interest

before a move to a more restrictive setting.

Standard #6.8

The guardian shall monitor the residential setting on an ongoing basis and take any necessary action when

the setting does not meet the individual's current goals, preferences, and needs including but not limited to:

• Evaluating the plan; enforcing residents' rights, legal and civil rights; ensuring quality of care

and appropriateness of the setting in light of the feelings and attitudes of the person; and

• Exploring alternative opportunities for long-term services and supports where necessary to better

fulfill the person's goals and preferences.

Standard #6.9

The guardian shall promote social interactions and meaningful relationships consistent with the preferences

of the person.

• 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.

• The guardian shall not interfere with established relationships unless necessary to protect the

person from substantial harm.

Standard #6.10

The guardian shall consider the proximity of the setting to those people and activities that are important to the person when choosing a residential setting.

Standard #6.11

The guardian shall make reasonable efforts to maintain the person's established social and support networks during the person's brief absences from the primary residence.

State          Statutory Authority

AL       Ala. Code §§26-2A-78(b)(5); 26-2A-147; 26-2A-108; 26-2A-110
AK       Alaska Stat. §§; 13.26.117; 13.26.118; 13.26.235; 13.26.255;
AZ       Ariz. Rev. Stat. §§14-5307; 14-5308; 14-5315; 14-5419(A)
AR       Ark. Code Ann. §§28-65-320, 322, 108(b)
CA       Cal. [Probate] Code §§1850; 1851(a); 2620(a); 2620.1; 2620.2( c )
CO       Colo. Rev. Stat. §§15-14-112(2); 15-14-317
CT       Conn. Gen. Stat. §§45a-655(a)( c ); 45a-656(a)(6); 45a-660(6)
DE       Del. Code Ann. §§12-3908(a); 3941(b), 12-3943; 12-3944
DC      D.C. Code Ann. §§21-2047(a)(5); 21-2049; 21-2061; 21-2065(d)
FL      Fla. Stat. Ann. §§744.362 through.369; 744.372; 744. 3675(1); 744.3678; 744.3685
GA     Ga. Code Ann. §§29-4-22; 29-5-22; 29-5-30; 29-5-52 & 53; 29-5-60; 53-7-180(2)
HI      Haw. Rev. Stat. §§560:5-317(a); 560:5-420
ID      Idaho Code §§15-5-307(a); 15-5-419
IL       755 ILCS 5/11a-15;5/11a-17(b); 5/11a-20(b); 5/13-5(g)
IN       Ind. Code Ann. §§29-3-8-1(b); 29-3-9-5, 6 & 8; 29-3-9-11; 29-3-12-4(a)
IA       Iowa Code §§633.669; 633.670 (a) & (b); 633.674
KS       Kan. Stat. Ann. §§59-3034(a); 59-3035; 59-3036(b)
KY      Ky. Rev. Stat. Ann. §§387.080 & 090; 387.670; 387.710
LA      La. Rev. Stat. Ann. §§9:1025; 13-3443(A); Code of Civ. Pro. §§393; 4551; 4565; 4569(A)
ME     Me. Rev. Stat. Ann. §§18-A 5-307; 18-A 5-312 (a)(5); 18-A 5-415; 18-A 5-419(a) & ( c )
MD      Md. Code Ann. [Estates and Trusts] §§13-221; 13-708(b); 14-404(a)
MA      Mass. Gen. Laws Ann. Sec. §201 48; §205 1(6)
MI      Mich. Comp. Laws Ann. §§700.5309; 700.5310; 700.5314(e); 700.5418
MN     Minn. Stat. Ann. §§524.5-112(b); 524.5-316; 524.5-420
MS      Miss. Code Ann. §§93-13-23; 93-13-67; 93-13-121
MO      Mo. Ann. Stat. §§475.082; 475.190(4)
MT       Mont. Code Ann. §§72-5-321(2)(e); 72-5-414; 72-5-438(1)
NE       Neb. Rev. Stat. §§30-2623; 30-2628(a)(5); 30-2648(a)(5)
NV      Nev. Rev. Stat. §§159.081; 159.176; 159.177(1); 159.185
NH      N.H. Rev. Stat. Ann. §§464-A:35 through 464-A:37
NJ       N.J. Stat. Ann. §§3B:12-42
NM       N.M. Stat. Ann. §§45-5-314; 45-5-409
NY       N.Y. Mental Hyg. Law §§81.30 through 81.32
NC       N.C. Gen. Stat. §§35A-1242 through 35A-1244
ND       N.D. Cent. Code §§30.1-28-7(3); 30.1-28-12(8) & (9)
OH       Ohio Rev. Code Ann. §§2111.14(A); 2111.36; 2111.49
OK       Okla. Stat. Ann. §§30-4-303(A) & (D); 30-4-305 through 307; 30-4-801
OR      Or. Rev. Stat. §§125.160; 125;225; 125.325
PA      Pa. Stat. Ann. §§20-3182; 20-5512.2; 20-5521( c ) (1); 20-5531
RI       R. I. Gen. Laws §33-15-26
SC      S.C. Code §§62-5-307; 62-5-312(a)(5); 62-5-419
SD      S.D. Codified Laws §§29A-5-403; 29A-5-408; 29A-5-504
TN      Tenn. Code Ann. §§34-1-111; 34-1-115; 34-1-123; 34-1-131
TX      Tex. Prob. Code Ann. §§648(b); 651; 672(a) & (b); 725; 741 through 744; 761
UT      Utah Code Ann. §§75-5-307; 75-5-312(2)(e); 75-5-419; 75-5-429
VT      Vt. Stat. Ann. §§14-3076 through 3078
VA      Va. Code Ann. §§37.2-1021; 37.2-1022; 26-17.4
WA       Wash. Rev. Code Ann. §§11.92.040(2); 11.92.043(2); 11.92.160; 11.92.180
WV       W. Va. Code §§44A-3-2; 44A-3-11; 44A-4-4
WI      Wis. Stat. §§880.19(1); 880.16(2) & (4); 880.25; 880.34(4); 880.38(3); 880.251 through 253; 880.331(5)(d)
WY      Wyo. Stat. §§3-2-109; 3-3-901(a)(i)

American Bar Association Commission on the Mentally Disabled & Commission on Legal Problems of the Elderly. (1989).  Guardianship: An agenda for reform—Recommendations of the National Guardianship Symposium and policy of the American Bar Association. Washington, DC: American Bar Association.

Bayles, Fred, & McCartney, Scott. (1987, September). Guardians of the elderly: An ailing system. Associated Press Special Report.

Bonnie, Richard J., & Wallace, Robert B., Panel to Review Risk and Prevalence of Elder Abuse and Neglect, National Research Council of the National Academies (Eds.). (2003). Elder mistreatment: Abuse, neglect, and exploitation in an aging America.  Washington, DC: The National Academies Press, p. 1.

Commission on National Probate Court Standards. (1993, 1999). National Probate Court Standards, Williamsburg, VA: National Center for State Courts.

Hurme, Sally Balch. (1991). Steps to enhance guardianship monitoring. Washington, DC: American Bar Association

Commission on the Mentally Disabled and Commission on Legal Problems of the Elderly.

Leonnig, Carol D., Sun, Lena H., & Cohen, Sarah. (2003, June 15). Under court, vulnerable became victims. The Washington Post, A-01; Cohen, Sarah, Leonnig, Carol D., & Witt, April. (2003, June 16). Rights and funds can evaporate quickly. The Washington Post, p. A-01.

 Miller, Susan, & Hurme, Sally Balch. (1991). Guardianship monitoring: An advocate’s role. Clearinghouse Review, 25, 654.

National Conference of Commissioners on Uniform State Laws. (1997). Uniform Guardianship and Protective Proceedings Act. Chicago, IL: American Bar Association.

U.S. Senate Special Committee on Aging. (2003). Serial No. 108-3. Washington DC.

U.S. Government Accountability Office. (2004, July). Guardianships: Collaboration needed to protect incapacitated elderly people. GAO-04-655. Washington, DC: GAO.

Wendland-Bowyer, Wendy. (2000, May 24). Who’s watching the guardians? Detroit Free Press; Wendland-

Bowyer, Wendy. (2003, Oct. 25). Guardian system overrun by abuse. Detroit Free Press; Kilzer, Lou, & Lindsay, Sue. (2001, April 7). The probate pit: Busted system, broken lives. Rocky Mountain News; Rubin, Paul. (2000, June 15). Checks &imbalances: How the state’s leading fiduciary helped herself to the funds of the helpless. Phoenix New Times; Glaberson, William. (2004, March 3). Report calls for overhaul of system that protects the unfit. New York Times.

Wingspan—The Second National Guardianship Conference, Recommendations. Stetson Law Review, 31(3).

2004 National Wingspan Implementation Session: Action Steps on Adult Guardianship Reform. Retrieved Dec. 8, 2005 from http://www.guardianship.org/associations/2543/files/WingspanReport.pdf

Zimney, George, et al. (1991). A national model for judicial review of guardians’ performance: Final report. St. Louis, MO:  School of Law & School of Medicine, St. Louis University.