Guardianship is a complex system, dating back to the Roman Empire, in which a judge appoints someone as a guardian to make decisions about the welfare and, possibly, the finances of a person deemed unable to manage those affairs. Terms vary, but in most states a guardian is appointed to oversee a person’s daily needs and a conservator is appointed to manage the individual’s finances. Most often a judge selects a family member to serve as a guardian, but if no relative or friend is able to step in, the court may designate a professional or public guardian.
You can count on AARP
A 2018 estimate put the number of adult guardianships in the U.S. at 1.3 million, but legal experts say the exact figure is hard to pin down. Adults under guardianship may lose certain rights, including the rights to vote and marry. Further, they may lose the authority to make decisions about where to live, how to spend their money and what medical treatments to receive. Thus, guardianship should be a last resort, and where appropriate, the arrangement should include clear parameters and safeguards.
The majority of guardians (both family members and professionals) do their jobs well. Still, there have been instances of abuse, mismanagement of funds, alleged conflicts of interest and a lack of court oversight. Questions about whether an individual even needs a guardian also have arisen. Here’s one thing you can count on, though: AARP is playing a critical role in the fight to improve laws and enact reforms to protect vulnerable older Americans who rely on guardians and others to help them make vital decisions.
AARP’s nearly decade-long advocacy has led to reforms that include establishing standards and training for guardians, safeguarding the rights of those under guardianship, combating abuse and strengthening court oversight of guardians and conservators. Other reforms encourage judges to make guardianships a last resort and to explore, when appropriate, less restrictive alternatives. These can include limited guardianships, power of attorney agreements, advance directives or supported decision-making agreements.
AARP advocacy yields wins
AARP, through its state offices, has supported advances such as:
- Alabama’s Supreme Court issued an order creating a Commission on Adult Guardianships and Conservatorships.
- Colorado’s Office of Public Guardianship requires a background check for appointed guardians.
- District of Columbia’s COVID-19 response includes requiring a guardian to inform an individual’s family member of a major change in circumstances related to the pandemic.
- Montana’s judges now must consider less restrictive options before appointing a guardian.
- Texas’ distinction as the first state to recognize supported decision-making agreements as an alternative to guardianship. AARP worked with another nonprofit, Texas Appleseed, to create guides in English and Spanish to help family and friends serving as supporters to understand their roles under the law.
Importantly, AARP was a key voice in the drafting of a new uniform act on guardianship aimed at updating state laws to address critical issues, including requiring a judge to explore other options before appointing a guardian and making guardianship a last resort. The measure has been enacted in its entirety in Maine and Washington and partially in Iowa, Nevada, New Mexico, Minnesota, Mississippi and South Carolina.
More work ahead
“AARP’s advocacy was a crucial component to the enactment of many new reforms across the country to update and strengthen outdated guardianship laws and standards,” says Diana Noel, director of family and caregiving in government affairs at AARP. “While we have made great progress, there is still more to do, and we look forward to continuing our work on this important issue.”
Guardianship laws vary by state. In May 2021, AARP joined 125 advocates, family guardians, judges, lawyers, scholars and other stakeholders at the Fourth National Guardianship Summit, to discuss the country’s adult guardianship system, with dual goals: maximizing autonomy and ensuring accountability. Summit delegates approved 22 recommendations for reforms that can help states make improvements.
AARP recognizes that guardianship reform means more than updating state laws; it requires working with state courts and other stakeholders to improve the day-to-day practice of guardianship. That’s where Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) come in. More than half of states have these or similar working groups. AARP is proud to have a seat at the table with these organizations, including Oregon WINGS, which states: “By combining the efforts of all stakeholders, we can improve judicial processes, better protect individual rights, and promote fiduciary standards and guardian accountability.”
AARP shares those aims, which align perfectly with its bedrock principles: empowering people to choose how they live as they age and to lead their best lives possible.