Basic data on guardianship is scarce. This scarcity makes reform more difficult. The U.S. Government Accountability Office found that the dearth of statistical data limits oversight and reform efforts. The demographic trends noted above highlight the need for uniform consistent guardianship data, as those trends will account for an increased number of guardianships in coming years.
Few studies are available about guardianship, specifically in reference to individuals with disabilities. Those studies that have been conducted examined a limited range of guardianship issues.
For example, some studies examined the characteristics of the individuals involved in the process as it affects the elderly (Bulcroft et al., 1991; Friedman & Senage, 1988; Lisi et al., 1994); use of alternatives to guardianship (Iris, 1986; Lisi et al.); and individual state guardianship practices (O'Sullivan & Hoffman, 1995; Spring, Dubler & Garginlo, 1990). In 1987, the Associated Press (AP) investigated 2,200 guardianship files from all 50 states and the District of Columbia to obtain information on elderly wards and the guardianship process (AP, 1987). During the early 1990s, the National Center for Social Gerontology explored guardianship practices of 10 states. This national study also focused its attention exclusively on the elderly (The Center for Social Gerontology, 1994; Lisi et al.).
The Center for Social Gerontology had reported to the U.S. Administration on Aging in 1992 its estimate of court imposed guardians to be between 500,000 and 1,250,000. Since then, it is widely believed that the number of adult guardianships has doubled, if not quadrupled. The numbers are impossible to quantify because individual states themselves do not know how many aging adults they have agreed to “protect.”
See also: Factors Affecting Guardianship Practices
Adult Guardianship:
The National Center on Elder Abuse charged the American Bar Association Commission on Law and Aging to conduct an exploratory survey of adult guardianship. They found the following:
1. Over one-third of responding state court administrative offices (34 percent) receive from trial courts reports on filings and dispositions for adult guardianship of the person and/or property as a distinct case type, but close to two-thirds (66 percent) do not.
2. Less than a fifth of responding state court administrative offices receive from trial courts reports of filings and dispositions for guardianship of the person only (19.1 percent); and just over a quarter of the offices receive reports for guardianship of the property (conservatorship) only (25.5 percent).
3. State court administrative offices do not receive from trial courts information on adult guardianship beyond the number of filings and dispositions.
4. Only five states reported that elder abuse is a distinct case type reported by trial courts to state court administrative offices, and a few additional states may receive such data in the future.
5. Over two-fifths (44.7 percent) of responding state court administrative offices indicated that they are interested in compiling data—or additional data—on adult guardianship, conservatorship, and elder abuse, but named substantial barriers.
6. A few local courts are planning for or demonstrating data collection practices that may assist other courts grappling with data collection issues.
They concluded the following:
* There is no state-level guardianship data for the majority of the reporting states. For states that do receive such data, comparison may be limited by differing definitions and coding.
* Data reported to state court administrative offices is limited to filings and dispositions.
* There is no data on a range of elements that would be critical for guardianship research and reform efforts. Whether, and to what extent, such data is maintained at the local court level is not known.
* Additional data beyond filings and dispositions may have two related purposes:
(1) enhancing case processing and strengthening oversight of guardians; and
(2) supporting broader guardianship research and reform efforts. Courts may be more apt to collect data for the former than the latter.
* There is almost no data on elder abuse as a distinct case type, reflecting a larger lack of elder abuse data nationally.
* While many states express interest in collecting additional information on guardianship and elder abuse, the burden to local courts, the need for standardized definitions, and the cost of technology are significant barriers.
* Isolated promising practices in some areas offer potential.
*Major investment in court technology, training, and standardized definitions is required to secure data for effective guardianship case management, as well as enabling courts, policymakers, and practitioners to move toward strengthening the guardianship system and preventing elder abuse.
See also: NCEA Guardianship Data
Conclusion:
Those who find themselves in the hands of unwanted guardians or conservators are not criminal, they are not mentally ill, they are not incompetent. They are asset-rich and old.
George Alexander and Travis Lewin, authors of The Aged and the Need for Surrogate Management put it this way:
The fault lies with the system created by the law. We define the condition of incompetency in a way in which psychiatrists can give no meaningful assistance and then abrogate the decision-making power to medicine. We devise a system which operates only at the initiation of those who stand to gain by imposition of the procedure and then ignore competing interests which causally follow. We draft a procedure that insures a speedy institution of incompetency but fails to provide an equally expeditious method for restoration. We design a system of surrogate management in the belief that mischief will befall the un-managed assets of the so-called mentally ill. Then we leave the determination of inauguration of incompetency in the hands of those benefiting from its continuation, magically believing that the basic beneficence of man will overcome his self interest and greed.
See also: Syracuse Law: Travis H. D. Lewin
