“An unknown number of adults languish under guardianship beyond the period of need," the commission said. "Others may never have needed the guardianship in the first place, as a less restrictive option could have sufficed.”
The study called guardianship both a “gulag and a godsend” and buttressed its case by claiming guardians must perceive their role as enhancing self-determination and working toward termination of guardianship with sufficient support.
“Education and training for lawyers targeted specifically at restoration proceedings could help change practices and attitudes,” the commission said.
While noting the stripping of money management and other abilities from an adult as the result of a guardianship proceeding is generally viewed as permanent, the report noted rights can be restored when a judge finds the adult is deemed fit to do so or additional evidence has surfaced showing the person does not meet the legal standard of being incapacitated.
Nearly 70 percent of the time, all financial privileges were restored by courts in Minnesota, Washington State, Illinois and Kentucky from August 2012 to August 2015 as a result of hearings on whether an individual under guardianship should regain rights, according to the study.
The ABA commission urged the enactment of state laws enbling people under guardianship to have their rights restored when warranted. The laws should also give guardians attorneys to push for their rights and include requirements that courts regularly review the need for guardianship.
The commission cited as an example the Florida Developmental Disabilities Council Manual for Legal Professionals, which shows how the individual, the guardian, the attorney and a supportive living coach can work together to set out and follow concrete steps to gradually transfer management of money from the guardian to the individual.
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Adults Under Guardianship Should Have Chance To Regain Rights, ABA Says
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