Guardianship Around the World

1. Guardianship Around the World Robert D. Fleischner ASAGA Conference November 2018

2. The ancient law of guardianship • Traced back to the Ancient Roman Law of the Twelve Tables (450 B.C.E.), which authorized the appointment of guardians to manage the property of people considered incompetent • English law, guardianship first appeared in the statute De Praerogativa Regis, (1324) which recognized guardianship as a duty of the sovereign to protect and care for the person and property of ‘idiots’ and ‘lunatics’ • An exercise of parens patriae authority

3. Early purposes Prevent people with disabilities from becoming a public burden Ensure against the dissipation of assets to the detriment of heirs

4. Before the 18th century • Emphasis was on guardianship of property, as distinct from guardianship of the person • Feudal law was not concerned with the problem of the insane man who did not have an estate. • With the growth of a proletariat, the problem had to be faced.

5. 18th & 19th centuries • Those non compos mentis -- not of sound mind included: • 1) those who were idiots from birth; • 2) those who were rendered as idiots, through accident, sickness, or act of God; • 3) “lunatics,” who were, periodically, as totally without sense as the former two groups, but who experienced some lucid intervals; and • 4) those, such as habitual drunkards, who voluntarily deprived themselves of their understanding. • Persons non compos mentis were popularly called “lunatics” or “insane” regardless of which of the four categories applied. • In the traditional view, lunacy, insanity, or madness was impelled by supernatural, rather than natural, causes.

6. The invention of the asylum • The development of the “sciences” of mental deficiencies and of mental illness led to the inventions of institutions and asylums in the mid-1800s. • Medical (disease) model of disability influenced development of guardianship (and civil commitment) laws – both statutes and common law • Concepts of insanity, competency to stand trail and criminal responsibility entered criminal law.

7. Putting the physician in charge • Competency issues perplexed and troubled courts and legislatures. • The new medical professionals, specially trained and supposedly knowledgeable, were now available to make such decisions, seen to be more “medical” than judicial. 

8. Eugenics • 1890s to 1920s • Designed to segregate and to prevent procreation by people with disabilities • To prevent the passing of “bad genes” • Buck v. Bell (1927) • A discriminatory movement founded in a belief that people with disabilities are not able to make decisions for themselves

9. Stasis Guardianship law remained fundamentally unchanged in the U.S. for more than 100 years, But then…

10. Modern purposes • Protection of a person who cannot care for herself • Protection of the person’s assets BUT WHATEVER THE REASON Guardianship is a massive intervention into the liberty of the individual.

11. The first round of reforms – the 1960s • The civil rights movement & the growing sense of disability rights • “Right to treatment” • Right to live in the community • The due process revolution • First in criminal law • Then in civil commitment • Then in guardianship • Some court decisions on substantive rights

12. Due process • Notice • Right to be present • Right to counsel in some states • Supporting evidence • Independent evaluations, GAL investigations • Standard of proof

13. The first U.S. model laws – the 1st round of U.S. reforms • 1978 ABA model • 1982 ULC UGPAA • New concepts, some adopted from court decisions • Most important concepts: • Emphasis on autonomy • Limited guardianship

14. Guardianship scandals • The AP series “Guardians of the Elderly: An Ailing System (1987) • “Dangerously overburdened” • Senior stripped of their rights at “the stroke of a judge’s pen.” • Lack of monitoring and no way to hold guardians accountable.

15. Responses to the AP 1987 series • Congressional hearings • National Guardianship Association founded • Adopts standards of practice & code of ethics • Wingspread Conference (1988) • State based reforms began • Leading to the 2nd round of reform

16. 2nd round of reforms – 1987-2000 • Due process • Capacity determined by functional assessments, not just diagnosis • Greater accountability • Limited guardianship emphasized (UGPPA 1997)

17. Court oversight • Bonds • Inventories • Guardianship plans • Annual accounting • Periodic review • Usually not court initiated

18. Common limits to a guardian’s authority w/o court authority • Admission to MH and MR facilities • Admission to nursing home • Medical care and treatment • Sterilization, ECT, amputation, abortion etc. • Mental health care and treatment • Sale of real estate • Establishment of a estate plan

19. 3d round of reforms – early 2000s • Clear that many statutory reforms were not changing practice • Wingspan conference 2001 • UAG&PPJA – since adopted in all but 5 states • Other reforms were small and slow in developing

20. Changing concepts of incapacity • Functional definition A person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age…or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person. UGPPA(1997)

21. Decision making methods • Best interest of the ward • Substituted judgment, considering • Express preference • Prognosis with treatment • Prognosis without treatment • Side effects • Family wishes

22. Alternatives to guardianship • Power of attorney • Representative payee • Health care advance directive • Trusts • Later -- SDM

23. Round 4 – the present • Significant impact of an aging population • Third national summit – 1993 • WINGS groups convened in many states • ADA • Article 12 of the UNCRPD • International impact • Supported decision-making • Increased emphasis on limitations and discharge

24. Convention on the Rights of People with Disabilities

25. Article 12 • Recognizes that all people have legal capacity • All state parties are committed to ensuring that people with disabilities can exercise legal capacity • “Legal capacity” and “mental capacity” are not the same thing • Rather “will and preferences” are the core of decision making abilities • Focuses on supports and accommodations to enable will and preferences to guide decision making

26. Ireland Ireland replaced its guardianship law in 2015.The Act: embraces human rights principles of proportionality and due process; recognizes the right of all people with disabilities to make decisions, even bad ones; replaces best interest standard with the requirement that decisions be based on will and preferences. But, retains some forms of guardianship.

27. Reforms elsewhere in the world • Israel (2016) has reformed guardianship and recognized SDM • Hungary (2009) and abolished its guardianship mechanism to give authority instead to those appointed as “decision-making supporters.” • Czech Republic (2012) abolished full guardianship, set time limits on limited guardianships, and recognized supported decision-making as the preferred alternative to guardianship.

28. Reforms elsewhere in the world • Croatia, in 2015 abolished plenary guardianship. The law provides that within the next five years, courts should review all guardianships for restoring partial or full legal capacity. • British Columbia and other Canadian provinces have SDM laws.

29. Sweden Sweden (1989) replaced guardianship with two alternatives: a Godman, like a trustee, who manages the individual’s affairs according to his wishes, and Forvaltare, which, like guardians, limit the capacity of the individual but whose authority is limited to financial matters, leaving the person’s legal capacity otherwise intact.

30. Reforms elsewhere in the world • Courts in Georgia have limited use of guardianship. • Argentina, Columbia, Peru, Costa Rica all have some form of supported decision-making in statutes, though reforms are incomplete.

31. Round 5? Uniform Guardianship, Conservatorship and Other Protective Arrangements Act UGCOPAA

32. The UGCOPPA reforms • Ends use of “incapacitated person” and “ward” • Stronger notice requirements • Strengthens right of individual to attend • Capacity based on functional not medical model • Increases use of visitors & evaluators • Order must state whether rights to marry & vote are retained • Strengthens preference for limited guardianship

33. UGCOPPA (2) • Required receipt of statement of rights • Requires guardian to visit • Establishes procedures for change of living situation • Hearings after communication from other than interested party • Sets standards for termination • Recognizes SDM as an alternative • Establishes time-limited protective arrangements (e.g., for medical procedure or sale of property)

34. The future… • Enhanced protection for the person • Increased scrutiny of guardians • More emphasis on alternatives, especially SDM