Family Law Prof Blog

Editor: Margaret Ryznare
Indiana University
Robert H. McKinney School of Law

Saturday, October 21, 2017

Guardianship

From the New Yorker:

Guardianship derives from the state’s parens patriae power, its duty to act as a parent for those considered too vulnerable to care for themselves. “The King shall have the custody of the lands of natural fools, taking the profits of them without waste or destruction, and shall find them their necessaries,” reads the English statute De Prerogative Regis, from 1324. The law was imported to the colonies—guardianship is still controlled by state, not federal, law—and has remained largely intact for the past eight hundred years. It establishes a relationship between ward and guardian that is rooted in trust.

In the United States, a million and a half adults are under the care of guardians, either family members or professionals, who control some two hundred and seventy-three billion dollars in assets, according to an auditor for the guardianship fraud program in Palm Beach County. Little is known about the outcome of these arrangements, because states do not keep complete figures on guardianship cases—statutes vary widely—and, in most jurisdictions, the court records are sealed. A Government Accountability report from 2010 said, “We could not locate a single Web site, federal agency, state or local entity, or any other organization that compiles comprehensive information on this issue.” A study published this year by the American Bar Association found that “an unknown number of adults languish under guardianship” when they no longer need it, or never did. The authors wrote that “guardianship is generally “permanent, leaving no way out—‘until death do us part.’ ”

When the Norths were removed from their home, they joined nearly nine thousand adult wards in the Las Vegas Valley. In the past twenty years, the city has promoted itself as a retirement paradise. Attracted by the state’s low taxes and a dry, sunny climate, elderly people leave their families behind to resettle in newly constructed senior communities. “The whole town sparkled, pulling older people in with the prospect of the American Dream at a reasonable price,” a former real-estate agent named Terry Williams told me. Roughly thirty per cent of the people who move to Las Vegas are senior citizens, and the number of Nevadans older than eighty-five has risen by nearly eighty per cent in the past decade.

In Nevada, as in many states, anyone can become a guardian by taking a course, as long as he or she has not been convicted of a felony or recently declared bankruptcy. Elizabeth Brickfield, a Las Vegas lawyer who has worked in guardianship law for twenty years, said that about fifteen years ago, as the state’s elderly population swelled, “all these private guardians started arriving, and the docket exploded. The court became a factory.”

Pamela Teaster, the director of the Center for Gerontology at Virginia Tech and one of the few scholars in the country who study guardianship, told me that, though most guardians assume their duties for good reasons, the guardianship system is “a morass, a total mess.” She said, “It is unconscionable that we don’t have any data, when you think about the vast power given to a guardian. It is one of society’s most drastic interventions.”

Read more here.

http://lawprofessors.typepad.com/family_law/2017/10/guardianship.html

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