Ask a state court system how many older adults are under guardianship, and often no one knows. When the Government Accountability Office examined elder abuse by guardians, court officials in six states could not provide exact numbers. That matters because guardianship falls under state law, run by state probate and family courts. It decides whether an older resident keeps control of where she lives, how she spends her money and what treatment she accepts.
Guardianship, in which a judge assigns someone (usually family, sometimes a professional) to make decisions for another adult, has long been the default for cases of aging-related cognitive decline. A guardian controls finances, medical care and living arrangements. It is permanent, sweeping and often imposed without consent. In an era of a rapidly growing older population, its limitations demand attention.
There is an alternative. In what are known as “supported decision-making” agreements, the person continues to make her own decisions but chooses trusted supporters to help her understand options and communicate choices. Unlike guardianship, the person remains legally responsible and in control. In 2013, a Virginia court treated a young woman's use of supported decision-making as a reason to limit her parents' guardianship petition.
The case opened a door that states have been walking through ever since. Two years later, Texas became the first state to enact a statute recognizing such agreements. As of this September, at least 40 states and the District of Columbia had laws referring to supported decision-making, and those in at least 18 states required courts to consider less restrictive options before guardianship.
The laws vary widely in their approach. Florida, for example, requires guardianship petitions to describe efforts to use supported decision-making. Nevada requires a physician's assessment of alternatives. Model state legislation drafted by the Uniform Law Commission and supported by the American Bar Association offers a template for alternatives to be considered before guardianship is imposed.
Much momentum on the issue has centered on people of all ages with intellectual and developmental disabilities. Supported decision-making remains underused among older adults with cognitive decline — the population states will face most in the coming years. However state lawmakers approach the issue, there are some key provisions they and their states’ agencies and courts should keep in mind:
• Legislatures should give agreements teeth. A statute should require banks, hospitals and nursing homes to accept a supporter's presence and help, and it should require a statutory form, as Texas adopted, that gives all involved parties something standard to recognize.
• Legislatures should require written findings that less restrictive alternatives were tried or considered and found insufficient. Florida and Nevada put the burden on petitioners. States should demand this paper trail before any guardianship order is issued.
• Legislatures should guarantee counsel who argues for the person's wishes. When a respondent had an attorney, according to a Disability Rights Maine analysis, full guardianship orders fell from 76 percent to 56 percent and 33 percent of cases ended with no guardianship, compared with 21 percent of cases without representation.
• Legislatures should write safeguards into law. A supporter can exert undue influence as easily as a guardian can abuse authority. Texas's fiduciary duties and alternate-supporter provisions are a start.
• Medicaid and aging agencies should provide supporters where families are unavailable. States can fund trained community supporters, as Texas did with its 2019 pilot, reaching isolated older adults whom the model otherwise fails.
• Courts should make rights easy to get back. Guardianship should not be one-way. Periodic mandatory review means someone other than the person under the order must justify keeping it in place.
• And court administrators should count what happens. Report, by age, how many adults are under guardianship, how many orders were limited rather than absolute, how many were ended, and which alternatives were tried. Without that baseline, no state knows if anything works.
A state can test itself with three questions: How many older adults are under guardianship? What was tried first? Who argued for the person's wishes? Each is a reporting requirement a legislature can write. Together they ask the real question — not whether an older person is safe, but whose decision it is.
James A. Lomastro is a surveyor for the international Commission on Accreditation of Rehabilitation Facilities, an advocacy associate with Dignity Alliance Massachusetts and a member of the Massachusetts Board of Registration of Nursing Home Administrators.
Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.