Least Restrictive Alternatives to Guardianship – Justice in Aging

Introduction

One of the more prevalent (and comparatively successful) areas of guardianship reform has been the promotion of less restrictive alternatives to guardianship. If some alternative mechanism exists to provide support and address the issues prompting the call for guardianship, then no guardianship should be necessary. The implementation of the alternative might avoid the court action altogether, might serve as a basis for denying the initial petition, or, if the guardianship is already in place, might justify narrowing the guardianship’s scope or terminating it entirely.

For some marginalized communities—communities that have been excluded from, or faced barriers to, involvement in prevailing political, social, and economic structures, such as communities of color and the LGBTQ+ community—alternatives in the form of advance planning may be complicated by the community’s history, culture, and attitudes with respect to those mechanisms. Ensuring that all communities benefit equally from ongoing reform efforts to promote less restrictive alternatives may require new community-focused and community-driven strategies.

Calls for Reform Surrounding Less Restrictive Alternatives

The effort to curtail guardianship in favor of alternatives that permit a greater retention of rights, autonomy, and decisional authority caught hold in the 1980s. Negative media attention prompted inquiry at the federal level, which laid the groundwork for the First National Guardianship Symposium in 1988 and its recommendation that alternatives be a topic of education for judges and guardianship agencies.^[1] Over the following decades, numerous states amended their guardianship statutes to include some consideration of less restrictive alternatives, often through the adoption of language from the uniform law on guardianship,^[2] including its most recent iteration, the 2017 Uniform Guardianship Conservatorship and Other Protective Arrangements Act (Uniform Guardianship Act).^[3]

In 2022, the Fourth National Guardianship Summit resulted in twenty-two recommendations, including a call for increased use of supported decision-making,^[4] adoption of the Uniform Guardianship Act and its provisions regarding less restrictive alternatives and protective and single transaction orders,^[5] and training on alternatives for judges, lawyers, and other interested parties known to be “pipelines to plenary guardianship.”^[6]

Current Reform Efforts Surrounding Less Restrictive Alternatives

Today, “[t]he vast majority of states require the court to consider whether guardianship is necessary, whether the respondent’s needs or interests could be protected by less restrictive means, or both.”^[7] The movement toward less restrictive alternatives acknowledges that in many situations mechanism are already available to help the person allegedly in need, outside the guardianship system.^[8] Each mechanism offers slightly different solutions that can be modified to fit the circumstances of the individual needing support. And most are implemented with the involvement and consent of the individual and terminable at their direction, unlike guardianship. Thus, the implementation of those alternatives in lieu of guardianship aligns with the widely embraced goals of increased self-direction and person-centeredness.

Marginalized Older Adults and Less Restrictive Alternatives to Guardianship

Despite the laudable progress of reform efforts surrounding less restrictive alternatives to date, a gap exists with respect to their promotion and implementation in communities of color, resulting in an ongoing disparity in where and how reforms are implemented.

Two of the most widely available and easily utilized mechanisms to avoid guardianship are powers of attorney and advance health care directives. Those documents, tailored to each state’s laws, can usually be obtained by a simple internet search, or from a legal aid organization or library, and are generally straightforward and easy to execute. However, the forms that are readily available will likely be written in English. For non-English speakers, the process of executing powers of attorneys and advance health care directives can be more complicated and potentially expensive. If the person executing is unable to read and understand the document, issues might arise regarding their capacity to sign and, ultimately, the document’s validity. Therefore, a person who is unable to speak or read English may need either to locate and hire an attorney who speaks their language or work with an English-speaking attorney and a certified translator who can attest to the person’s understanding of the document.

Even some of the relatively simple banking alternatives might not be readily available to all marginalized communities due to unequal access to banking services. An estimated 4.5% of all U.S. households (approximately 5.9 million) were “unbanked” in 2021, meaning no one in the household had a checking or savings account at a bank or credit union.^[9] Unbanked rates tend to be higher among older adults and Black and Hispanic households.^[10]

Another challenge with many alternatives is that they need to be prepared in advance of the push for guardianship because they generally require some level of legal capacity to execute.^[11] This limitation highlights the importance of advance estate planning as a guardianship avoidance tool. However, significant disparity exists in the rates of estate planning for some marginalized communities. For example, according to one recent nationwide survey, some 82% of Hispanic adults and 77% of Black adults in the U.S. have done no estate planning, compared to 61% of white adults.^[12] Black adults are also four times less likely than white adults to have engaged in advance health care planning, including completing an advance directive or durable power of attorney for health care.^[13]

As others have noted, the reasons for these disparities are varied and complex.^[14] Marginalized communities face not only the usual barriers to estate planning—procrastination, not knowing how to create a plan, belief that it is too expensive or only for the wealthy, and a reluctance to think about death, among others—but they also experience barriers resulting from historical exclusion from inheritance laws and systemic disenfranchisement.^[15] As one author aptly queries, “With such a rich and widespread institutional history of property being used by Whites to maintain power and control, and being so persistently taken away from Black people through law, custom, and terror, is it any wonder that my parents, and perhaps other Black parents, have not focused on attempting to acquire, retain, and transfer material wealth across generations?”^[16]

With respect to utilizing estate planning as a means of guardianship avoidance, the current disparity highlights that (1) past efforts to increase rates of estate planning in marginalized communities have, at least to some extent, been ineffective, and (2) new, creative approaches might be needed to promote less restrictive alternatives to guardianship in order for marginalized communities to share equally in the benefits of that reform. Fortunately, there are strategies that courts, legal aid organizations, and other advocates can use to produce meaningful community engagement and partnership.

Recent scholarship on outreach and education programs in marginalized communities has illuminated how a culturally aware, community-centric approach can increase the likelihood of building successful and sustainable programs.

One study, for example, examined five different faith-based education initiatives intended to promote advance care planning in local Black American faith communities.^[17] From those five initiatives, the researchers were able to identify important key themes related to successful programmatic implementation, including utilizing existing ministries, involving faith leadership, exhibiting cultural competency, and building trust, among others. Ultimately, the researchers concluded that partnership and serious engagement with the Black church and its clergy was one way to build effective and stable educational programs that would forge a link between advance care planning and “lived experience” to “bring the goals and values of Black Americans into alignment with the treatment they receive at the end of life.”^[18]

Another study similarly sought to increase rates of advance care planning in a Black community, this time in Flint, Michigan, by promoting an interactive online program that leads participants through the advance care planning process.^[19] The researchers utilized a community-based strategy that entailed recruiting and training “peer facilitators” from the community who would then educate and assist other community members. The researchers found that the facilitators, who shared similar social backgrounds with those whom they were assisting (race, class, culture, and life experience), functioned as a “bridge” between community members and the medical providers and prompted “greater trust compared to traditional approaches.”^[20] Additionally, they noted that since the facilitators were members of the community, their involvement would increase community capacity and program sustainability.

Finally, another study describes a legal clinic’s efforts to increase outreach to and utilization of services by local Black and Hispanic communities.^[21] The author details how the clinic’s efforts succeeded with respect to the Black community (and failed with respect to the Hispanic) because of the clinic’s efforts to build a culture of trust within the Black community by, among other things, establishing and fortifying a cultural connection “through strategic engagement and endorsement of highly trusted persons (local icons),” specifically a respected community activist and pastor who agreed to lead the collaborative outreach.^[22]

These new and promising efforts to reach and partner with marginalized communities are effective because they involve community members in the planning, execution, and sustainability of the programs; work to build trust by partnering with existing community institutions and trust points (the church, local icons, neighbors); and “bake in” cultural competency and a community-centered and community-grounded focus and commitment. The strategies utilized in those efforts, and others like them, can and should be funded, adopted, and integrated into outreach initiatives to promote guardianship alternatives in marginalized communities in order to ensure that reform efforts benefit all.

Recommendations

Advancing equity in guardianship and reform efforts requires looking at various parts of our systems and structures. Additional Justice in Aging publications will examine this topic by exploring inclusive, culturally sensitive statutory bills of rights to address the unique concerns of marginalized older adults.

• States and the federal government should fund or increase funding to demonstration and pilot projects testing programmatic models that promote advance estate planning and less restrictive alternatives to guardianship specifically for older adults in marginalized communities. Community-based organizations currently providing services to older adults in marginalized communities should be prioritized for funding.
• States, legal aid organizations, community advocates, and other interested parties should promote alternatives to guardianship in marginalized communities utilizing innovative, culturally competent, community-centered, and community grounded strategies tailored to the target community and designed to build trust and partnership.
  • Successful projects should be scaled up and replicated in other marginalized communities where alternatives to guardianship are underutilized.
  • Best practices and successful strategies should be shared widely with other interested parties.
• Courts, legal aid organizations, community advocates, and other interested parties should develop educational and outreach materials and legal forms on alternatives to guardianship for older adults in identified marginalized communities. Forms and materials, both existing and newly created, should be available in multiple languages and should adhere to best practices with respect to, among other things, plain language, cultural competency, and person-centeredness.
• States should study the barriers to utilization of alternatives to guardianship in marginalized communities and implement (and fund) solutions to overcome those barriers, including:
  • The availability of programs and services such as day programs and care centers, in-home service programs, meal and transportation programs, etc.;
  • The availability and affordability of banking services to the “unbanked” and the creation of state-level representative payee and bill pay programs; and
  • Advance directives for older adults with reduced decisional capability, surrogate decision-making statutes, powers of attorney for adults with dementia, and the like.

Advancing equity in guardianship and reform efforts requires looking at various parts of our systems and structures. Additional Justice in Aging publications will examine this topic by exploring inclusive, culturally sensitive statutory bills of rights to address the unique concerns of marginalized older adults.

Endnotes

1. See National Counsel on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination 54-55 (2018), available at https://beta.ncd.gov/report/beyond-guardianship-toward-alternatives-that-promote-greater-self-determination-for-people-with-disabilities/; see also American Bar Association, House of Delegates, Recommendation (1989) (Recommendations I-A, IV-B(2)-(3), VI-D-(2)-(3)), available at https://www.americanbar.org/content/dam/aba/directories/policy/prior-to-1989/1989_my_104.pdf. ↑

2. See Nina A. Kohn & Catherine Koss, Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship, 91 Wash. L. Rev. 581, 606-07 (2016). ↑

3. Among other things, the Uniform Guardianship Act prohibits guardianship where less restrictive alternatives would meet the adult’s functional needs, requires the petitioner to state whether less restrictive alternatives have been tried and to justify any failure to do so, and enables protective orders (or single transaction orders) instead of guardianship, expanding available alternatives to guardianship. See Uniform Law Commission, Guardianship, Conservatorship, and Other Protective Arrangements Act §§ 301(a)(1)(B), 301(b), 310(a), 302(b)(4), 501-12 (2017) [hereinafter “Uniform Guardianship Act”], available at https://www.uniformlaws.org/committees/community-home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c. ↑

4. See Fourth National Guardianship Summit: Maximizing Autonomy and Ensuring Accountability, Recommendations Adopted by Summit Delegates [hereinafter Summit Recommendations] (2021) (Recommendations 2.1, 2.2, 2.3, 2.4), available at https://www.americanbar.org/content/dam/aba/administrative/law_aging/2021-grd-smmt-recmndtns.pdf. ↑

5. See Summit Recommendations, supra note 5 (Recommendation 3.1); see also American Bar Association, Commission on Law and Aging, et al., Report to the House of Delegates (2022), available at https://www.americanbar.org/content/dam/aba/administrative/law_aging/602-midyear-2022-amended.pdf. ↑

6. See Summit Recommendations, supra note 5 (Recommendations 3.4, 5.3). ↑

7. Kohn, supra note 3, at 607; see also ABA Commission on Law and Aging, Supported Decision-Making and Less-Restrictive Alternatives: A Statutory Chart (2022), available at https://www.americanbar.org/content/dam/aba/administrative/law_aging/2022-sdm-lst-rstctd-altntvs.pdf; ABA Commission on Law and Aging, Least Restrictive Alternative References in State Guardianship Statutes (2018). ↑

8. Many of the available alternatives have long coexisted alongside guardianship. Guardianship law in the United States can be traced to British common law and the king’s authority to act on behalf of subjects who were incapable of taking care of themselves. The idea that an individual can enlist someone to act on their own behalf is just as old. The concept of granting “power of attorney” can be traced to British common law in the 1700s, and earlier Roman law incorporated the concept of mandatum, a consensual contract under which one person promised to do something, gratuitously, for another person. ↑

9. See FDIC, 2021 FDIC National Survey of Unbanked and Underbanked Households (2022), available at https://www.fdic.gov/analysis/household-survey/index.html; Joe Valenti, AARP Public Policy Institute, Financial Access Challenges for Older Adults (2020), available at https://www.aarp.org/pri/topics/work-finances-retirement/financial-security-retirement/financial-access-challenges-for-older-adults.html. ↑

10. See FDIC National Survey, supra note 10; Valenti, supra, note 10. ↑

11. Most courts have found that the legal capacity needed to execute a durable power of attorney is the same as that required to execute a contract (called “contractual capacity”), which means the ability to understand the nature and effect of the thing being signed. See Lawrence A. Frolik, “Sufficient” Capacity: The Contrasting Capacity Requirements for Different Documents, 2 NAELA J. 303, 313-15 (2006). The same is true for the execution of a trust document. The level of legal capacity required to execute a valid advance health care directive varies from state to state, but may be more akin to the capacity necessary to sign a will (called “testamentary capacity”), typically a lower bar than contractual capacity, requiring only that the testator has the ability to know (1) the nature and extent of their property, (2) the people who are natural beneficiaries, (3) the dispositions they are making, and (4) the ability to connect all of those elements together. See id. at 315. ↑

12. See Althea Chang-Cook, Consumer Reports, Why People of Color are Less Likely to Have a Will (2022), available at https://www.consumerreports.org/money/estate-planning/why-people-of-color-are-less-likely-to-have-a-will-a6742820557/; see also Daniel Cobb, 2022 Wills and Estate Planning Study (2022), available at https://www.caring.com/caregivers/estate-planning/wills-survey/2022-survey/. ↑

13. See Lesli E. Skolarus, et al., Extending Advance Care Planning to Black Americans in the Community: A Pilot Study of the PREPARE Program (2021), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8435356/; see also Jenny McDonnell & Ellen Idler, Promoting Advance Care Planning in African American Faith Communities: Literature Review and Assessment of Church-Based Programs (2020), available at https://journals.sagepub.com/doi/pdf/10.1177/2632352420975780. ↑

14. See generally M. Akram Faizer, Bridging the Divide: A Proposal to Bring Testamentary Freedom to Low-Income and Racial Minority Communities, 99 Tex. L. Rev. Online 20 (2020); Alyssa A. DiRusso, Testacy and Intestacy: The Dynamics of Wills and Demographic Status, 23 Quinnipiac Prob. L.J. 36 (2009). ↑

15. See generally Reetu Pepoff, The Intersection of Racial Inequities and Estate Planning, 47 ACTEC L.J. 87 (2021); Diane J. Klein, Knocking on Heaven’s Door: Closing the Racial Estate-Planning Gap by Ending the Ban on Live Person-to-Person Solicitation, 44 J. Legal Prof. 3 (2019). ↑

16. See Terrence M. Franklin, Black Deaths Should Matter, Too!: Estate Planning as a Tool for Antiracists (2022), available at https://www.trustlitigation.la/wp-content/uploads/sites/1302276/2022/03/Black-Deaths-Should-Matter-Too-Estate-Planning-as-a-Tool-for-Antiracists.pdf. ↑

17. See McDonnell & Idler, supra note 14. ↑

18. See id. ↑

19. See Skolarus, supra note 14. ↑

20. Id. ↑

21. See Patricia Mock, Effective Outreach to Underserved Communities of Color: An Arduous Sojourn to Cultivate and Attain Trust, 17 T.M Cooley J. Prac. & Clinical L. 51 (2015). ↑

22. See id. at 91. ↑