February 1st is Conservatorship & Guardianship Abuse Awareness Day
Britney Spears and the Netflix movie “I Care a Lot” brought awareness of both abuse of the process of guardianship or conservatorship[1] and abuse by guardians and conservators to the public eye. February 1st is National Conservatorship and Guardianship Abuse Awareness Day, an effort to maintain awareness of the abuse even as Brittney puts her life back together, and memory of the movie fades. Abuse is not just something that happens to celebrities or in the movies.
My first encounter with abuse by a guardian was when I was clerking in a legal aid program while in law school. I helped a Pro-Bono attorney on a case where the guardian had moved the person out of the only home she had known, held a garage sale, and sold all her possessions, even toys that she had treasured for over 60 years. The client simply wanted her dolls back and we struggled to get the money back.
The movie “I Care a Lot” is loosely based on abuse that happened in Clark County, Nevada when criminals[2] looked for isolated adults experiencing neurocognitive decline and railroaded them into guardianship. The guardian then neglected the people and stole every penny they had. While the Nevada case is one of the largest reported scandals, it is far from the only one. Abuse by guardians runs the gamut from physical abuse, forced labor, neglect, abandonment, sexual abuse, psychological abuse, and financial exploitation.
Fundamental due process is often absent from the process of obtaining guardianship of an adult. In many cases, the defendant or respondent is unrepresented and the hearing to restrict or remove their legal and constitutional rights often lasts less than 15 minutes. I observed one jury trial where the “defense attorney” later bragged that he said nine-words in the entire trial.
Guardianship reform is currently dominating the work of the ABA Commission on Law and Aging. We are in the process of writing a Lawyers Handbook on Defending an Adult in a Guardianship Case. We are writing it because it is needed, there is little on the topic, and an increasing pool of lawyers have been inspired to defend adults against guardianship and are taking cases to modify or terminate guardianships. We obtained outside funding from two private foundations to cover the cost of the staff time needed to publish this book.
The mission of the Commission on Law and Aging is to educate and advocate to protect the rights and dignity of adults as they age. Raising awareness and advocacy for due process rights of adults in guardianship cases, and awareness of the rights and dignity of adults who are experiencing abuse, neglect, or exploitation is fundamental to our work. The structure of the ABA Center for Public Interest Law, and outside grant and consulting funding makes it possible for us to do this important work. We share this expertise with ABA members through publications, training, and providing technical assistance to ABA members and other professionals who are interested in pushing back against abuse. The ABA Commission on Law and Aging has had a core role in four national summits on guardianship reform and the recommendations of all four summits are reflected in ABA policy.
There are guardianship reform efforts in many states. The Commission on Law and Aging continues to host calls for the Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) groups in about 25 states, with the goal of helping states determine what needs to change and how to bring about change. As we recognize National Guardianship and Conservatorship Abuse and Awareness Day, we encourage you to examine your own state’s guardianship practices and identify ways in which you can work to ensure that our vulnerable neighbors are not harmed by a system that is supposed to protect them.
[1] Traditionally, a Guardian is appointed to protect a person, and a Conservator is appointed to protect assets. The Uniform Guardianship Conservatorship and Other Protective Arrangements Act uses the terms in this way. However, the use of the terms varies from state to state with some states calling both a guardian, California calling both a conservator, and a handful of states using entirely different terms for a court appointment to protect the interests of an adult the court has determines needs protection. For simplicity, I will use guardianship for all of these.
[2] There have been criminal convictions.