WHY STATES SHOULD PASS UGCOPAA

by Marcia Southwick

Encourage your state to adopt the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act. The Senate Committee on Aging supports this bill, which was created after two years of research into the practices of all 50 states.

Many advocates want the guardianship system to be abolished altogether. If anything this drastic can happen, alternatives that don’t remove fundamental rights would need to be available for those who need aid. UGCOPAA works towards this goal, loosening the grip of the guardianship system. The goal is to create a fairer playing field. The fairer the playing field, the fewer guardianships there will be.

1) UGCOPAA requires Due Process. Emergency petitions must be followed by a hearing within 5 days. If you are subjected to a proceeding, you can hire a defense attorney of choice, or an attorney who must defend your rights will be appointed by the court. (This is a shift away from the “best interest” standard and towards equal rights defense.) If a petition for a permanent guardianship occurs, a hearing is held within 14 days. You and your attorney can cross examine evaluators, the petitioner, and others on the case. Witnesses can be called as well in your defense. If you can’t attend the hearing for reasons beyond your control, the hearing comes to you.

2) UGCOPAA requires the court to consider all possible alternatives to guardianship (such as supported decision-making) before placing a guardianship on someone. UGCOPPA provides guidance as to what the alternatives are in Article 5. With a an attorney to defend you (as was the case for Britney Spears) alternatives can be created that replace the need for guardianship and removal of rights. In most cases, guardianship is unnecessary. (Or conservatorship in California’s case). Alternatives are what allowed the conservatorship to end.

3) A list of people, along with contact info– including family, step-family, close associates, close friends (or anyone who has assisted the person during the past six months), must be provided along with the petition. All of the people on this list are then informed of hearings, the AIP’s rights, and instructions as to how the person under protection can terminate the guardianship. Guardianship is explained in detail to all parties before the hearing.

4) The standard of argument for a petition eliminates hearsay in favor of clear and convincing evidence. This change favors a rights approach over a punitive approach.

5) If a guardianship is absolutely necessary and no other option is available, the guardian must provide a detailed plan for care, along with proposed fees, and this plan is provided to everyone on the list for review and objection. If the guardian strays from the plan, this can serve as a red flag to those who are close to the person under protection. Close associates and family provide more ears and eyes for the court reducing the cost of monitoring, The attorney and person under protection receive all financial accountings and can contest inappropriate charges. Until now, financial accountings have fallen into a black hole, creating secrecy and encouraging fraud.

6) The Guardian cannot restrict visitation for more than 7 days without presenting evidence to the court that the restriction is needed. Presently guardians isolate without reason and they do so of their own accord and for their own convenience.

7) Anyone interested in the welfare of a person under guardianship can petition to terminate the guardianship, or petition for less restrictive alternatives

8)  A system for complaints is set in place, and complaints must be addressed and placed in the guardian’s permanent file to keep track of the guardian’s actions.

9) If a guardian contests a petition for termination, and their effort to keep the guardianship fails, they are responsible for their own legal fees. This disincentivizes guardians from continuing to fight since they are restricted in the use of the protected person’s funds.

10) The court is instructed to issue single orders to solve specific problems. An example might be ordering someone into a care facility, rather than putting a guardianship in place. If a nursing home bill isn’t paid, the court would order that it be paid rather than approve a guardianship simply for that purpose.

The end goal is to use plenary guardianship only when absolutely necessary, to encourage tailored limited guardianships if needed, to use single court orders to solve problems, and to encourage support systems that replace or avoid guardianship and loss of rights. The idea is to respect each person’s fundamental rights to autonomy. UGCOPAA is a living document into which further reforms may be added.