ABA Adopts Policy on Guardianship Bill of Rights and Due Process Protections

By, Erica Costello, Senior Attorney, American Bar Association Commission on Law and Aging

At the ABA Annual Meeting in August of 2023, the House of Delegates unanimously passed Resolution 506, urging national, state, local, territorial, and tribal law and policy-making bodies to adopt the provisions of the “Guardianship Bill of Rights,” promulgated by the National Guardianship Network (NGN) in 2022, and to protect the right to Due Process in guardianship proceedings. The adoption of this Resolution furthers the ABA’s on-going guardianship reform efforts and recognizes the importance of having meaningful due process protections in guardianship and conservatorship proceedings.

Resolution 506 was co-authored by the ABA Commission on Law and Aging (COLA) and the ABA Section on Civil Rights and Social Justice and is based upon recent recommendations from a taskforce established by the NGN.  The NGN is comprised of representatives from various member organizations that advocate for quality guardianship practices and procedures, including ABA COLA and the ABA Section of Real Property, Trust, and Estate Law.  

In May of 2021, the NGN convened the Fourth National Guardianship Summit, virtually hosted by the Syracuse University College of Law. The purpose of the Summit was to review current guardianship policies and practices and make recommendations for reform over the next decade. At the Summit, 125 delegates adopted twenty-two (22) recommendations for guardianship reform—including Recommendation 1.1, which called upon the NGN to convene a task force to draft a model national Bill of Rights for adults subject to a guardianship.[1]

Following the Summit, the NGN established a task force in 2022 to create the first model national “Guardianship Bill Rights.”  The task force, including members from national disability and aging organizations, individuals at risk or subject to guardianship, and family and professional guardians, created a model document affirming the rights of adults who have a guardian, including the right to an attorney to advocate for the outcome they want, the right to be present and participate in all court hearings, and the right to keep all rights not granted to their guardian.[2] The document also affirmed other access to justice rights, core human rights, and decision-making rights that should be afforded to adults at all times when they have a guardian.

Resolution 506 was drafted and passed following the NGN taskforce’s recommendations, urging law and policy-making bodies to enact the NGN’s “Guardianship Bill of Rights,” as well as take necessary steps to ensure meaningful due process in guardianship and conservatorship cases. All too often stories in the news media report that individuals are placed under unnecessary guardianships because of a lack of fundamental due process protections, including the failure to have counsel appointed to represent the individual, the failure to receive notice of the hearing or be heard by the court, and the failure to confront or cross examine witnesses to the case. It is imperative that individuals subject to guardianship or conservatorship proceedings have the right to present a guardianship defense and be provided with meaningful due protections, even if such protections are not explicitly provided in state statutes.

There are currently only eleven states that have statutory provisions providing a “Bill of Rights” for individuals subject to guardianships or conservatorships, or have language specifying rights retained by persons in guardianship or conservatorship cases.[3]  While these statutes typically recognize basic due process protections afforded to all adults subject to guardianship or conservatorship proceedings, they may not encompass all of the protections recognized by the NGN’s “Guardianship Bill of Rights.” As such, the NGN’s “Guardianship Bill of Rights” provides law and policy-making bodies with an excellent model to consider adopting or take into consideration when amending existing statutes.

The passage of Resolution 506 is a huge step towards improving current guardianship policies and practices across the country.  It encourages the adoption of the NGN’s model “Guardianship Bill of Rights” and provides a template for protecting the rights of individuals subject to guardianship or conservatorship proceedings. It also seeks to ensure meaningful due process protections for anyone whose rights are at risk in such proceedings. The provisions in Resolution 506 are especially important for protecting individuals who have a conservator or guardian appointed by the courts.

[1] Fourth National Guardianship Summit: Maximizing Autonomy and Ensuring Accountability. Recommendation 1.1.  Fourth-National-Guardianship-Summit-Adopted-Recommendations-May-2021-1.pdf

[2] For a complete list of the rights adopted by the NGN: NGA-Bill-of-Rights-rev-11-4-22.pdf (guardianship.org)

[3] Arkansas (Ark. Code Ann. § 28-65-106), California (Cal. Prob. Code § 1835.5), Florida (Fla. Stat. Ann. § 744.3215), Iowa (Iowa Code Ann. § 633.637A), Michigan (Mich. Comp. Laws Ann. § 700.5306a), Minnesota (Minn. Stat. Ann. § 524.5-120), Missouri (Mo. Rev. Code § 475.361), Nevada (Nev. Rev. Stat. Ann. § 159.327-8), South Carolina (S.C. Code Ann. § 62-5-304A), Texas (Tex. Est. Code Ann. §1151.351), and Utah (Utah Code Ann. § 75-5-301.5).

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ABA Adopts Policy on Guardianship Bill of Rights and Due Process Protections

Lori Stiegel, Early Champion of Elder Justice

by Edwin L. Walker, Deputy Assistant Secretary for Aging

Lori Stiegel

A week ago, a bright light went out.  I was shocked and profoundly saddened to learn of the death of our dear colleague and friend, Lori Stiegel.  I knew Lori for decades, so long that I cannot recall exactly when we met.  She was such a presence in my life – and in the lives of so many others.  Lori was gentle, humble, a consummate advocate for justice, and a great friend. 

Lori was a valued member of the American Bar Association Commission on Law and Aging for over 30 years.  She started her career as a legal aid lawyer, working with older Americans. She then worked supporting legal assistance through legal assistance development and as the Georgia Legal Assistance Developer prior to joining the ABA Commission on Law and Aging.  Her dedication and passion for her work was always informed by what she learned from having “boots on the ground” experience.

Lori was one of the earliest, and certainly the most consistently passionate, advocates for the agency and rights of all adults to make their own decisions.  She taught many of us how to fight against financial exploitation of seniors. She led the way in pushing for guardianship reform and was the national leader and force behind WINGS, Working Interdisciplinary Networks of Guardianship Stakeholders.  She believed deeply that collective action and bringing together diverse arrays of constituencies can move the needle on seemingly intractable barriers – and she was right. She educated, nurtured and encouraged generations of legal aid lawyers, policy makers, and thought leaders.

Many considered Lori a dear friend and I was among them.  I treasured our conversations, whether they were about deep pressing issues of the day or about light topics that would bring out a shared smile or laugh.

Our memories of Lori can comfort us and propel us forward, as advocates and as friends. I will miss her, and mourn our loss. As we share stories of what she accomplished and how she united disparate communities to advance the cause of autonomy and self-determination, we will continue her work, inspired by her spirit and positive approach, and her belief that we can come together on difficult issues.  We will succeed, led by her example, and because of that, Lori will live on.

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Lori Stiegel, Early Champion of Elder Justice

Hospices Adapt to Support Patients Without Family Caregivers

Cultural changes to family dynamics and demographics may require hospices to adjust their care and business models to care for patients who have no family support.

Since its inception, hospice has been centered on both the patient and family, not only through providing services to the family but also relying on them as an essential part of the patient care team.

Patients often lack caregivers due to outliving their relatives, being childless, divorce, having no siblings, or changes in geographic mobility. Few hospices can maintain round-the-clock care for patients in their homes, thus a lack of family caregivers can contribute to increased hospitalizations or nursing home admissions, as well as create ethical and legal challenges. Many of these patients have limited decision-making capacity and need assistance making health care choices, including decisions regarding hospice enrollment.

A 2014 study found that older adult patients without family support, often called “unbefriended,” often do not enroll in hospice due to inadequate state policies governing third-party medical decisions for these patients. With 1.4 million patients in hospice care and approximately 4% of older adults unbefriended, hospices can expect to see more of these patients as the population ages and hospice utilization continues to rise, according to the American Bar Association’s Commission on Law and Aging,

“Demographically we are going to have to keep thinking about this,” said Katherine Ornstein, M.D., of the Icahn School of Medicine at Mt. Sinai Medical Center in New York. “There is a lot that we don’t know because I think the role of other relationships, friendships, outside of the traditional family that support older adults in the community needs to be studied a bit more, but I think that it is such an important issue. We know how difficult it is for individuals who have devoted family members, what about those who don’t?”

Different states have different mechanisms for how to care for unbefriended patients; many have enacted public guardianship programs, in which a state social services agency appoints an attorney to become the patient’s legal guardian. The State of Indiana operates a Volunteer Advocacy Program in which the attorney appointed as guardian assigns a volunteer trained to make third-party health care decisions to the patient.

However, these types of guardianships introduce a significant potential for conflicts of interest that could lead to unnecessary or undesired use of services by the person under guardianship. It also could result in the denial of necessary services when cost cutting is mandated,  according to Alexia Torke, M.D., associate director, Indiana University Center for Aging Research, Regenstrief Institute in Indianapolis.

Encouraging referral partners and other health care providers in the community to discuss advance care plans with patients can help prevent later complications in medical decision making, allowing the patient’s wishes to be documented before their decision-making ability becomes impaired.

Early conversations are positively associated with decisions to limit or withdraw life-sustaining treatments, fewer in-hospital deaths, fewer unplanned hospital admissions, shorter hospital stays, satisfaction with end-of-life care, and increased odds of receiving strong opioid pain medications in the last 24 hours of life, according to a study in the March issue of the Journal of the American Medical Directors Association.
 
“All qualitative research exploring patients’ and family caregivers’ perspectives highlights that it’s up to health care professionals to start these conversations,” Silvia Gonella, R.N., co-author of the study, told Hospice News. “Unfortunately, this often does not happen, for different reasons —lack of time, difficult topic that staff prefers to avoid.”

Advance care planning ideally should begin as early as possible in the course of the patient’s illness, before they reach a crisis. Formal plans include documents such as advanced directives, living wills, and physician orders for life sustaining treatment (POLST forms) that can be entered into the patient’s electronic medical records. A key component of these conversations is to identify a third-party, a friend or relative or other representative, that the patient chooses to make decisions on their behalf should they become incapacitated.

“When you have someone in this category who still has decision-making capacity, it is important to get them to name someone who they would like to oversee their care. Many times, in conversation, they are able to name at least one close friend,” Torke told Hospice News.

In the absence of advanced planning, hospices may find themselves in difficult situations with unbefriended patients. Torke noted that patients with fewer social supports can often end up in acute care situations and may not receive the right care at the right time. And while hospice care can be given in long-term care facilities, patients must often navigate complicated insurance stipulations. This could all lead to higher medical costs and delayed enrollment in hospice.

“Hospices may be harmed a bit, but the person who really suffers is the individual who is walking their last chapters. It is our fiduciary responsibility to educate and provide resources. We need to understand what the patient needs and act on that,” Tim Ihrig, M.D., chief medical officer at Crossroads Hospice in Oklahoma City, said. “We have to understand why these patients are so expensive. It’s not because they’re old, unbefriended, and so on. [Their care] costs so much because of what the health care system does to them that neither enhances their quality of life or longevity.”

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Hospices Adapt to Support Patients Without Family Caregivers

Adults Under Guardianship Should Have Chance To Regain Rights, ABA Says

The time is ripe for people subject to court-ordered guardianship to have the ability to regain the right to manage their money, American Bar Association Commission on Law and Aging said in a study issued Monday.

“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