Reports of fraud and abuse by court-appointed guardians inspired more than 30 bills that were introduced in Congress over the past 37 years. Most never made it out of committee.
In most states, when a judge declares someone incapacitated and appoints a guardian over that person, he or she loses almost all rights.
The ward can no longer handle finances, choose where he or she lives, or sometimes even choose what to eat.
Medical, work, and even intimate relationship decisions are off-limits to the ward.
Critics of guardianship say convicted criminals have more rights than a ward.
One guardianship expert said reform isn’t happening despite all the legislation because adult guardianship is not a priority.
“State court systems have been getting money to improve their child welfare systems. But on the adult side, there’s no federal funding at all,” Erica Wood, a retired assistant director of the American Bar Association’s Commission on Law and Aging, told The Epoch Times.
Wood describes herself as an “elder law advocate” dedicated to guardianship reform.
The issues in U.S. guardianship began decades ago.
The 87-year-old politician expressed alarm over an Associated Press investigative series that year that described startling cases of fraud and abuse.
In addition to the AP reporters and editors, the subcommittee heard from former wards about being forced into guardianship without their knowledge and against their will.
Minnie Monoff, 81, of Greeley, Kansas, was declared incapacitated after a brief hospitalization for a stroke. She said county officials forced her into a nursing home.
“I had just finished mowing my lawn and feeding my chickens,” Monoff testified. “I told the sheriff: ‘What do you all mean? I’m doing my work. I am enjoying my life here. Why do I have to go?'”
Tod Porterfield, 83, of Albion, Indiana, was placed under guardianship by an attorney who had promised to help him sell his farm.
He fought for months to regain his rights after he was diagnosed with Alzheimer’s disease by a social worker who was not a doctor.
“I was very shocked and couldn’t believe that anybody could do and would do that to me,” Porterfield said.
“Mr. Chairman, how can a man step in and take over another man’s life, and no one even questions it? It is just not right.”
Pepper wondered aloud whether he was in any danger.
“I am 87. I will have to be on the alert that somebody doesn’t go in, in my absence and without my knowledge, and without my having an attorney, and ask to have a guardian appointed for me,” Pepper said.
Pepper was able to get language added to the 1965 Older Americans Act. The law was part of Lyndon Johnson’s Great Society plan to meet the needs of elderly Americans.
The law requires states to establish their Area Agencies on Aging to receive funding under the act. The activists say that although the act provided some relief, it didn’t address all guardianship cases, especially those involving younger wards whom the law would not cover.
The main issue stopping reform is that there is no single “guardianship system.”
“Each state has its guardianship code. So it’s a little bit different in every state and every court,” Wood said.
After the AP series, the National Guardianship Association, the Uniform Law Commission, and the National College of Probate Judges started working on reforms.
These included standards for professional guardians, model legislation for states to use to regulate their guardianship programs, and pushing for funding for data collection to determine the scope of the problems.
The center designed and administers a certification process for guardians that the association promotes to the states.
According to Butler, most states require at least a background check for a person to be appointed a guardian. Four states—Washington, Florida, California, and Texas—require certification.
Wood said the American Bar Association has been promoting reform for years.
The association backs such policies as finding alternatives to guardianship, less restrictive guardianships, and “supported decision-making.”
Supported decision-making is a program in which the person in the role of guardian has less authority. He or she would merely provide advice to the person needing help with making decisions.
The less restrictive process limits the guardian’s authority. It emphasizes the ward’s right to manage his or her own life as much as possible, including maintaining relationships with family and friends.
Wood and Butler both said states should consider adopting the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act.
This model legislation was drafted by the Uniform Law Commission, a nonprofit made up of lawyers appointed by state governments who provide model laws for state and local governments.
The act calls for less restrictive guardianship with a heavy focus on respecting the ward’s rights.
“A guardian for an adult must make decisions the guardian reasonably believes the adult would make if able unless doing so would cause harm to the adult,” the act reads.
The National Guardianship Association initiated the Working Interdisciplinary Networks of Guardianship Stakeholders, which brings together the various professional disciplines involved in the guardianship process to collect data, provide training, and develop ways to implement less restrictive guardianship policies.
The rights that are protected include those of the ward’s family and friends.
Sandi Cobianchi, of Orange, California, said she was not allowed to visit her dying mother because the guardian decided that the conflict between Cobianchi and her brother was too disturbing for her mother.
Cobianchi said she initially agreed to guardianship because she was told it would protect her mother’s assets.
In the end, her mother was isolated, and her estate was depleted, Cobianchi said. She said she would not have agreed to the guardianship if she had known what would happen.
The American Bar Association helped find and provide grants for programs currently operating in 27 states and the District of Columbia.
According to the association, these groups are making progress but are still facing serious challenges.
Wood said uneven implementation of the recommended policies and laws is hindering data collection, which is vital for genuine reform.
“Most states still can’t determine the number of adults under guardianship, so if you can’t determine basic things like that, it’s very difficult to put in place reform,” she said.
The report states that guardianship programs are a state responsibility. This includes how to gather data, what data to gather, and how to store the information.
In some jurisdictions, no data are kept; in others, only certain types of data are kept; and in others, the data that are tracked are challenging to access because of antiquated systems, a lack of personnel to do the work, or lax reporting.
In Texas, the law requires guardianship data to be collected, but those rules are not enforced uniformly, according to the report.
Texas requires every county to report active guardianship numbers to the Office of Court Administration each month.
Lack of Funding Is an Issue
Florida does not track the number or type of guardians for older adults and the number of elder abuse hearings conducted, according to an unnamed state official who responded to the Government Accountability Office.“This official cited lack of funding as a barrier for collecting this type of information,” the report reads.
Anthony Palmieri, the deputy inspector general for the Clerk of the Court in Palm Beach County, Florida, has been involved with high-profile guardianship cases in the state and has firsthand experience with those funding issues.
Palmieri told The Epoch Times that the excuse was getting old.
“It seems like there’s definitely reforms that are needed and necessary and like it’s kind of old talking about the same issues for, you know, 10, 20, 30, 40 years,” Palmieri said.
Several bills introduced over the years called for funding the kind of research the experts say is necessary.
In 2021, Sen. Susan Collins (R-Maine) introduced the Guardianship Accountability Act of 2021. The bill’s companion legislation in the House of Representatives was sponsored by Rep. Darren Soto (D-Fla.).
According to the bill introduced by Collins, the legislation was meant to improve oversight of guardians by collecting data so less restrictive guardianship and alternatives to guardianship could be developed.
Both the House and Senate versions died in committee.
In 1988, not long after Pepper’s subcommittee met, he sponsored the National Guardianship Rights Act. This legislation called for wards to be informed of their rights before being placed under guardianship.
It prohibited placing a person under guardianship in an ex parte hearing, during which some of the concerned parties are not in attendance.
It preserved the ward’s right to request a guardianship hearing before a jury and would have established a ward’s right to appeal his or her guardianship.
The bill died in committee as well.
A review of the congressional record shows that bill filings appear to have followed a pattern.
From the late 1980s, about the time of the AP series and the subcommittee hearing, through the late 1990s, there was a steady stream of bills introduced in Congress.
From 1999 through about 2010, there were a few bills related to guardianship, but The Epoch Times could not find legislation explicitly focused on guardianship.
That changed in about 2011, when more bills started being introduced.
Wood said the reason can be found in the entertainment news of the day.
In 2008, pop star Britney Spears was placed under an involuntary conservatorship.
In 2009, actor Peter Falk’s family was embroiled in a public fight over the former “Columbo” star’s conservatorship.
In 2014, the family of radio personality Casey Kasem was in a similar legal battle.
Wood said the general public is not aware of the guardianship issue because the majority of people don’t deal with it on a day-to-day basis.
When a high-profile case is featured in the news and social media, it holds their attention until the next story comes along.
Spears’s fanbase was particularly active, using social media to call for the court to end her conservatorship, which it did in 2021, 13 years after it began.
“The public still has a very low awareness of this issue, and when something like Britney Spears happens, everybody gets all excited and looks at it, and then that dies down, and you have to sort of start all over,” Wood said.
