Commission on Law and Aging
American Bar Association
In 2007, at least 14 states passed a total of 27 adult guardianship bills -- as compared with 16 bills in eight states passed in 2006. Connecticut * passed a major revision targeting procedures for appointment, limited orders and procedures for appealing probate court decisions. Washington, Arkansas and Nevada passed legislation creating or strengthening an office of public guardianship. Texas ** enacted a wide range of provisions. If you know of additional state adult guardianship legislation enacted in 2007, please contact Erica Wood, ABA Commission on Law and Aging, firstname.lastname@example.org, 202/662-8693.
A. Connecticut: Bolstering Procedures for Appointment and Appeal.
The following summary of the new Connecticut guardianship (termed “conservatorship”) law is by Kate McEvoy, JD, Deputy Director, Agency on Aging of South Central Connecticut and Chair, Elder Law Section, Connecticut Bar Association.
Enactment of Public Act 07/116, which became effective on October 1, 2007, reflects sweeping changes in Connecticut's guardianship law that update and modernize the state's law consistent with model standards. These amendments reflect a “person-centered” approach that requires courts to evaluate each instant situation on an individually-tailored basis. The most fundamental aspect of the amendments is that they build on prior Connecticut law to require a presumption of limited, rather than plenary, conservatorship.
Conservatorship law in Connecticut has been slow to evolve. Prior to 1998, in all cases in which a court found that a respondent was incapable, it was obligatory that the court appoint a plenary conservator. While amendments in Connecticut law first provided that appointment of a conservator was no longer mandatory where there were alternate existing supports, and later permitted appointment of a conservator on a limited basis, plenary appointments continued to be the norm. This has changed due to the comprehensive amendments that were enacted in the 2007 legislative session. The amendments were initially inspired by the national guardianship Wingspan recommendations and drafted by advocates from Greater Hartford Legal Assistance and the Connecticut Legal Rights Project. With comment from diverse partners, the amendments were finalized and ultimately championed by a workgroup led by Hartford Probate Court Judge Robert Killian, Jr. The amendments provide enhanced guidance on every aspect of the process, from inception through periodic review.
Definition of Incapacity. A key premise of the amendments is that Connecticut's definitions of incapacity have been revised as follows:
the “disabling condition” clause, which describes the individual's mental, emotional or physical condition, has been revised to remove references to such terms as “mental deficiency”, “chronic use of drugs and alcohol” and “confinement”;
a “cognitive functioning” clause, which refers to an individual's ability to make and communicate informed decisions, has been added; and
*the “essential needs” clause, which describes the individual's inability to care for him or herself or to manage his or her affairs, now includes reference to “appropriate assistance” that might help an individual to do so.
Procedural Due Process Protections. The amended law includes enhanced procedural protections that:
Least Restrictive Alternative; Limited Orders. At every stage of a proceeding, courts are required to evaluate whether a respondent's needs are currently being or could be met by a means that is less restrictive than appointment of a conservator. The amended law requires courts to consider numerous factors in determining whether a conservator should be appointed, including the abilities and preferences of the respondent, evidence of his/her life style and cultural background, and whether there exist alternate legal tools or supports that obviate the need for a conservator.
The new standard for appointment requires that the court find:
Courts are now prohibited from appointing a conservator of the estate if the respondent's affairs are being adequately managed by other means including, but not limited to, a power of attorney or advance health care directive.
Even where a court concludes, based on clear and convincing evidence of needs, that appointment of a conservator is necessary, it is required to make a limited appointment and to review the conservatorship ongoing with an emphasis on authorizing only those duties that clear and convincing evidence has shown to be necessary. The basis for such assignment must be that each such duty and authority restricts the decision-making authority of the ward only to the extent necessary to provide for his or her personal or property management needs. Important examples of this include provisions that state that conservators of the person may not, without court authorization:
revoke the conserved person's advance health care directives unless authorized to do so by a court of competent jurisdiction;
terminate a tenancy or lease, sell or dispose of real property or furnishings or change the conserved person's residency; or
place the conserved person in an institution, which is defined as a skilled nursing facility, an intermediate care facility, a residential care home, an extended care facility, a rest home or a rehabilitation hospital.
The amended law also provides that a conserved person retains all rights that are not expressly assigned to the conservator. Throughout, the amended law emphasizes use of the “least restrictive means of invention” and the obligation of the conservator of the person to take into consideration the wishes and preferences of the conserved person.
Finally, the amendments contain major changes concerning appeals. In contrast to historical de novo review, the Connecticut Superior Court must now limit its review to the record created at the probate court level  , and must affirm the decision of that court unless it finds specific circumstances, such as legal error, to have occurred, or that the decision is contrary to the evidence presented. The amended law also provides that an individual may apply for and is entitled to the benefit of a writ of habeas corpus even if s/he has not exhausted other remedies.
State Adult Guardianship Legislation at a Glance: 2007
|Arizona||SB 1100||Includes registered nurse practitioners in list of professionals for evaluation of respondents.|
|Arkansas||SB 820||Creates an Office of Public Guardian for Adults within the Division of Aging and Adult Services|
|Arkansas||HB 1305||Concerns definition of incapacity|
|California||AB 1727||Makes substantive and clarifying amendments to the 2006 Omnibus Act.|
|California||SB 340||Permits criminal background checks on conservators.|
|Connecticut||SB 1439||Makes substantial revisions in procedures for appointment of guardians (called “conservators”), for appeal; and in their powers.|
|District of Columbia||Act 17-161||Temporary emergency act that creates temporary limited health care guardian; clarifies definitions of temporary and limited guardians, emphasizes substituted judgment standard of decision-making and more.|
|Idaho||SB 1058 & 1060||Conforms statute to practice concerning service of notice by mail; makes technical changes in definitions.|
|Kentucky||HB 374||Concerns right of individuals under guardianship to vote.|
|Minnesota||HF 1396||Creates a study group to make legislative recommendations.|
|Nevada||SB 157||Requires boards of county commissioners to establish office of public guardian.|
|Nevada||SB 129||Makes changes in temporary guardianship; powers of guardians.|
|North Dakota||SB 2012(Sec. 21)||Excludes development of a volunteer guardianship program enacted in 2005, due to lack of funding.|
|Rhode Island||S 0481||Concerns criteria, appointment, duties and fees of guardians ad litem; makes additional changes.|
|Texas||HB 1295||Adds filing fee supplement for court-initiated guardianship.|
|Texas||HB 2691||Addresses provision of money management services in local guardianship programs.|
|Texas||SB 506||Authorizes Guardianship Certification Board to issue provisional certification.|
|Texas||SB 291||Changes procedure for listing and criminal background checks of guardians.|
|Texas||SB 505||Allows Guardianship Certification Board to look at criminal history information of applicants for certification.|
|Texas||SB 507||Entitles Guardianship Certification Board members to reimbursement for travel expenses.|
|Texas||HB 342||Addresses multi-state guardianship proceedings.|
|Texas||HB 585||Addresses probate court jurisdiction in guardianship proceedings involving a disabled adult for whom another court has jurisdiction in certain cases; and addresses appointment of conservator of disabled young adult as guardian.|
|Texas||HB 417||Concerns termination of appointment of guardian ad litem & attorney ad litem; right to vote and drive; criminal background checks of guardians; investment plans by guardians of the estate; more.|
|Texas||HB 1709||Concerns order for new bond.|
|Texas||HB 617||Concerns removal of ineligible guardians. /\|
|Virginia||HB 3177||Concerns sale of real estate by a conservator.|
|Washington||SB 5320||Creates an Office of Public Guardianship within the Administrative Office of the Courts.|
1 2007 Conn. Acts 116 (Reg. Sess.)
2 P.A. 97-90 (Reg. Sess.)
3 P.A. 98-219 (Reg. Sess.)
4 Conn. Gen. Stat. §45a-644(c), Conn. Gen. Stat. §45a-644(d)
5 Conn. Gen. Stat. §45a-650(a)
6 Conn. Gen. Stat. §45a-649(a)(2)
7 Conn. Gen. Stat. §45a-649(e)
8 P.A. 07/116 (Reg. Sess.) Section 15(a)
9 Conn. Gen. Stat. §45a-649(e)
10 Conn. Gen. Stat. §45a-650(b)
11 P.A. 07/116 (Reg. Sess.) Section 11
12 Conn. Gen. Stat. §45a-660(c), Conn. Gen. Stat. §45a-660(d)
13 Conn. Gen. Stat. §45a-650(g)
14 Conn. Gen. Stat. §45a-650(f)(1), Conn. Gen. Stat. §45a-650(f)(2)
15 Conn. Gen. Stat. §45a-650(f)(3)
16 Conn. Gen. Stat. §45a-650(l)
17 Conn. Gen. Stat. §19a-580e
18 P.A. 07/116 (Reg. Sess.) Section 21(a)
19 P.A. 07/116 (Reg. Sess.) Section 21(b)
20 Conn. Gen. Stat. §45a-650(k)
21 P.A. 07/116 (Reg. Sess.) Section 3(c)
22 P.A. 07/116 (Reg. Sess.) Section 4
23 P.A. 07/116 (Reg. Sess.) Section 24(a)
24 Teaster, P., Wood, E., Karp, N, Lawrence, S., Schmidt, W. & Mendiondo, M., Wards of the State: A National Study of Public Guardianship, University of Kentucky & American Bar Association Commission on Law and Aging * (2005); Teaster, P., Wood, E., Schmidt, W. & Lawrence, S., Public Guardianship After 25 Years: In the Best Interest of Incapacitated People?* University of Kentucky and American Bar Association Commission on Law and Aging (2008).
25 See Public Guardianship After 25 Years, at pp. 101, 109 & 116.
26 Ark. Code Ann. §8-65-701, effective if contingency in Acts 2007, No. 862, §5 is met. The contingency is that “(1)The Director of the Division of Aging and Adult Services of the department of Health and Human Services determines that adequate appropriation, funding, and positions are available to carry out a public guardianship program for adults; and (2) The director appoints an employee of the Division of Aging and Adult Services to serve as Public Guardian for Adults.”
27 Symposium Facilitating Voting As People Age: Implications of Cognitive Impairment, 38(4) McGeorge Law Review, University of the Pacific (2007).
28 Hurme, S. & Appelbaum, P., “Defining and Assessing Capcity to Vote: The Effect of Mental Impairment on the Rights of Voters,” 38(4) McGeorge Law Review 931, at 956 (2007).
29 Richardson, Sarah, “Health Care Decision-Making: A Guardian's Authority,” 24(4) Bifocal 1(Summer 2003), ABA Commission on Law and Aging.
30 Quinn, M., Guardianships of Adults: Achieving Justice, Autonomy, and Safety, Springer Publishing Company (2005) at 142.