Guardianship

There has been a strong movement since the late 1980s toward greatly strengthening the procedural protections available to prospective wards. In response to widespread public advocacy of greater autonomy and dignity for older persons and sharp criticism of the guardianship system as overly intrusive and paternalistic, most U.S. jurisdictions have adopted extensive revisions to their guardianship statutes. These statutory reforms create or enhance requirements concerning court-appointed legal counsel with adversarial duties, notice to the proposed ward, a hearing, personal attendance of the proposed ward at the hearing, clearly defined standard of proof (varying among states from a preponderance of the evidence test to a higher standard of clear and convincing evidence to the strictest test of beyond a reasonable doubt), explicitly delineated contents of the guardianship petition, and more specificity in the court order finding the ward incompetent and appointing the guardian. In a majority of states, statutes allow for the relaxation of normal procedural requirements to permit the appointment of a temporary or emergency guardian when there is an immediate life-threatening situation or when a permanent guardian can no longer serve.

The guardian who is appointed ordinarily is a private person (relative, friend, or attorney) or institution (bank or trust company); the majority of guardians are relatives of the ward. Many state statutes establish procedures through which competent adults are empowered to nominate in advance the person they wish to serve as guardian for them in the event that guardianship is ordered at some future time, and the courts are required to give strong deference to these preferences.

In a growing number of cases, older individuals are left without any friends or family members who are willing and able to act as a surrogate decision-maker. In response to this significant social phenomenon, some states have devised "public guardianship" systems under which a government agency, acting either directly or through contract with a private not-for-profit or for-profit organization, functions in the guardian role for a ward who has no one else. Elsewhere, some private corporations and organizations offer their services as guardians directly to the courts, either for a fee or on a voluntary, pro bono basis.