Today’s post is written by Sally Balch Hurme, J.D. and originally appeared February 1, 2023 on the National Center on Elder Abuse website.
No nationally recognized statement of rights for adults with a guardian exists in the U.S. A new model Bill of Rights has been created to fill that void.
A model Bill of Rights is needed to move to consistent recognition that adults with a guardian have fundamental rights that should be honored and respected. Adults with a guardian should not have their rights abused by the guardianship process that is intended to protect them.
Early focus on due process rights
Reform efforts since the 1980’s have focused on due process rights at the start of a guardianship. These rights, among others, include getting notice of the petition and the hearing, being represented by legal counsel, having a pre-hearing independent review of the need for the guardianship and the appropriateness of the proposed guardian, and participating in the hearing. It took decades of advocacy to establish these basic rights. Most states have laws addressing all or most of them, although in practice some of those rights still are not fully honored.
While these pre-appointment rights to a fair hearing are critical, state laws are largely silent on the rights that a person has after the guardian has been appointed.
How this Bill of Rights was developed
The National Guardianship Network, a collaboration of thirteen national organizations that advocate for quality guardianship, convened a national summit in 2021 to recommend guardianship reforms for the next decade. The first recommendation was to draft a national Bill of Rights for adults with a guardian.
Ten advocates from the disability and aging communities, a person whose rights had been restored, as well as family and professional guardians, met virtually for ten two-hour sessions to develop the draft. The members considered existing rights statements and court opinions, as well as the United Nations Convention on the Rights of Persons with Disabilities and the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act.
How the Bill of Rights is organized
The Summit directed the task force to categorize rights into three tiers: those rights which are always retained after a guardian is appointed, those personal rights that the court may restrict but not delegate to a guardian, and the rights the guardian may exercise on behalf of the adult.
Access to justice rights are the cornerstone to enforcement of all the other rights. A finding of incapacity in no way diminishes the right to due process. The adult has the right to be present and participate in all subsequent hearings just the same as the right to be present and participate in the initial hearing.
The task force members were well-aware of the difficulties concerning the appointment and role of lawyers in guardianship proceedings. The key barrier historically to legal representation has been the cost, both to the state and to the adult’s estate. Nevertheless, the Bill of Rights clearly states that the adult has the right to a lawyer who advocates for the outcome the adult wants. The ethical responsibility to represent client wishes, rather than some formulation of what could be in the client’s best interest, must be honored in all stages of a guardianship case.
Because a guardianship may continue for years, or even decades, adults with a guardian have a right to on-going access to the court. The Bill of Rights specifies that the adult has the right to let the court know of concerns and the right to ask for review of the need to change or end the guardianship.
All adults have basic human rights. Those rights do not disappear following a court’s finding of some level of decisional incapacity. The bill of rights enumerates those rights all people have and value: to be treated with dignity and respect, to be free from abuse, to be as independent as possible, and to have religious freedom, privacy, safe environments, and sexual expression. The right to decide what matters to keep confidential is the same as it is for those without a guardian.
An adult with a guardian does not lose the right to participate in decisions that are being made about them. They have a right to a guardian who respects and advocates for what they want when making decisions. Because a court has determined that a guardian is needed to protect the adult’s person and property, they have the right to a guardian whose primary responsibility is to ensure that they receive the necessary services that enhance their well-being and provide for their safety. Prudent management of the adult’s resources is an essential right to ensure their financial security.
Depending on the adult’s special circumstances, it may be appropriate for the court to restrict some personal rights. It should do so only when the court has made a specific finding of the need to restrict that specific right. Each of the rights that may be restricted, but cannot be delegated to the guardian, entails a different capacity determination. The need to restrict driving privileges is significantly different than any need to restrict the civil right to vote. The criteria to restrict the right to vote should be no different than for all other citizens; the inability to express a desire to vote. The court needs to give specific approval for any restrictions on the rights to communicate and interact with others, change marital status, be educated or employed, travel, or to maintain reproductive health and procreation.
Those rights which the court may authorize a guardian to exercise on behalf of the adult may be delegated only after the court’s specific determination that each is necessary for the adult’s safety and well-being. Whether the guardian is making decisions about obtaining needed services, consenting to medical treatment, or determining a place of residence, the adult has the right to participate in those decisions to the greatest extent possible. Delegated decisions concerning the legal rights to sue, contract, and manage money are to be made consistent with the adult’s preferences and with their participation.
Everyone who is invested in the well-being of vulnerable adults should advocate for the protection of the basic human and civil rights of those who have a guardian. Talk with legislators, judges, lawyers, and guardians about the importance of recognizing and protecting these rights. Legislative and judicial actions that incorporate these rights into practice are essential to ensuring those with a guardian have the rights they are entitled to have.