The term “guardianship” has been popping up in the media in more ways than one in recent years. Guardianship, which is regarded as a helpful tool for those unable to make financial or personal decisions for themselves, has been exposed to have a darker side. The most notable example of a public guardianship matter in popular culture was the #freebritney movement. The #freebritney movement opened a dialogue that heavily criticized the court system in California for allowing Britney Spears to remain under guardianship for 13 years, 9 months and 11 days – far beyond the time when it was seemingly needed, and definitely longer than Britney wanted.
Another high-profile guardianship has been in the news recently – that of former NFL player Michael Oher and the Tuohy family, who became household names after the 2009 Oscar-winning film The Blind Side was released. Years later, allegations have arisen that the Tuohy family established a conservatorship (another term for guardianship) through which they were accused of profiting from Michael Oher’s name, image and likeness. More egregious, however, was the fact that guardianship was granted even though Michael Oher was not a minor and had no history of any medical or physical disability or disease that would prevent him from handling his own personal or financial decisions. Hollywood has even entered the guardianship debate, with the dramatization of a ne’er-do-well guardian in Netflix’s “I Care a Lot.”
In response to the #freebritney movement and the growing concerns over the lack of oversight for guardianships nationwide, the American Bar Association House of Delegates recently adopted 22 different recommendations for guardianship reform, and further urged national, state, local governments and other policy-making bodies to incorporate these recommendations when considering improvements to guardianship laws, policies and practices. The main purpose of these recommendations was to encourage nationwide court improvement, and ensure that what happened to Britney Spears, Michael Oher, and countless others, does not occur again.
One of the principal recommendations was for states to enact the Guardianship Bill of Rights, which establishes twenty-one rights that an individual should always have, even when they have a guardian. These rights, listed below, are divided into three categories: access to justice, core human rights, and decision making rights.
Access to Justice Rights
- You keep all rights that the court has not granted to your guardian.
- You have the right to a lawyer who advocates for the outcome you want.
- You have the right to be present and participate in all court hearings.
- You have the right to let the court know your concerns or complaints about your guardianship.
- You have the right to ask the court to review the need for your guardianship to change, continue or end and whether your guardian is right for you.
- If there is a question about your capacity to exercise a specific right, you have the right to have a qualified person evaluate what you can do and whether to have some or all your rights restored.
- You have the right to the support and accommodations you need to be able to effectively communicate with the court and to understand the court proceedings.
- You have the right to have your rights explained to you in your preferred method of communication and in the language you choose.
Core Human Rights
- You have the right to be treated with dignity and respect.
- You have the right to be free from abuse, neglect, exploitation, and discrimination.
- You have the right to remain as independent as you can.
- You have the right to express and practice your own religious preferences.
- You have the right to personal privacy.
- You have the right to humane, safe, and sanitary living, learning, and working environments.
- You have the right to sexual expression to have your gender identity respected.
- You have the right to a competent guardian who advocates for your goals, needs, and preferences and respects your desires, including medical treatment preferences, cultural practices, and religious beliefs.
- You have the right to fully participate in all decisions, especially those affecting your care, where you live, your activities, and your social interactions, to the extent you wish to be involved and are able to be.
- You have the right to receive necessary services and rehabilitation, within available resources, which protect your personal liberty and are provided within the least restrictive conditions.
- You have a right to have your guardian prudently manage your resources.
- You have the right to fully participate in decisions about how your property is managed, to the extent you wish to be involved and are able to be.
- You have the right to keep confidential those matters which you wish to keep confidential unless that information is necessary to obtain services, to prevent abuse, neglect, or exploitation, or to modify the guardianship order.
What Does this Mean for Families and Individuals?
Guardianship is often the result of lack of planning. Most commonly, guardianships are sought when an individual becomes disabled and can no longer manage their personal and financial affairs. Perhaps that person has dementia, suffered a stroke, or has some other disability or disease that renders them unable to remain autonomous.
As the dark side of guardianship is exposed, individuals can take proactive steps to avoid this less-than-optimal outcome since guardianship is easily avoided by implementing a comprehensive estate plan. An individual who has the current ability to make personal or financial decisions for themselves, and wants to protect themselves should they lose this ability due to an accident or illness, can consider several estate planning tools that may be employed by an attorney to protect their client from a future guardianship, including advance medical directives, general powers of attorney, and revocable trusts. Our seasoned attorneys are well-versed in taking the necessary steps on behalf of our clients to ensure their affairs are in order and that they are not at risk for guardianship. For more information, contact an attorney in our Estate Planning Practice Group here.
For those who did not have the chance to do the proper planning, and it is now too late to implement a comprehensive estate plan (or if they never had the capacity to do such to begin with), there is still hope when it comes to system reform and the rights they may retain while subject to guardianship. Although there are currently only 11 states that have statutory provisions providing a Bill of Rights for individuals subject to guardianships or conservatorships, or have language specifying rights retained by persons in guardianship or conservatorship cases, the creation of a Guardianship Bill of Rights is indicative of the first step toward guardianship reform in the legal community by recognizing the need to protect the rights of vulnerable individuals who are subject to guardianship proceedings and ensuring that those who are subject to guardianship are able to retain some level of autonomy. As we see guardianship highlighted more frequently in the media and in popular culture, individuals and families wishing to protect their loved ones will be well-served by this recent guardianship reform, whether they face a guardianship matter now, or may have to address this in the future.
Wondering if you need guardianship for your loved one? Please reach out to an attorney in our Estates, Trusts and Guardianship Litigation Practice Group here.