Rethinking guardianship

It is often a difficult and heartbreaking decision. Someone in your life – usually an aging parent or other loved one – is at the point where they need help in making vital decisions about matters such as where to live, how to manage their finances or get the right medical care. While our most vulnerable seniors may need a legal guardian appointed by the courts, particularly if powers of attorney or health care directives are not in place or adequate, others may only need a different approach - one that allows them other less restrictive alternatives to still meet their individual needs.

What is guardianship?

Guardianship is a legal relationship in which a person(s) or agency (the guardian) is appointed by the court to make decisions and act on behalf of a person who does not have adequate capacity to make such decisions involving the management of personal affairs, property, or both. A court process is required to create a guardianship. Additional information to help understand guardianship, including a video titled Understanding Guardianship, is available here.

A series of high-profile guardianship cases have made national headlines in recent years, bringing public attention to the rights of persons deemed unable to manage their own affairs. These cases have also highlighted the potential for abuse within guardianships, particularly as it relates to the rights and wishes of the person subject to guardianship and the ability of the court to monitor and oversee the guardian.

For the past three years, Rethinking Guardianship—a statewide coalition of aging and disability advocates and stakeholders have been engaged in discussion about how North Carolina guardianship law can be improved so that:

• Every person who is subject to guardianship has a clear understanding of their rights, both before and after the guardianship is created;
• Guardianship is used only as a last resort after considering whether a less restrictive alternative is available; and
• Courts have effective tools for review and oversight to make sure guardians are fulfilling their responsibilities.

A bill is expected to be introduced in North Carolina, the Guardianship Rights Bill, that accomplishes all of these goals. It contains a Notice of Rights that would be given to every person for whom guardianship is filed, including a summary of the rights that each person has, both before a guardianship is established and after.

The bill also expressly recognizes every person’s right to nominate his or her own guardian in a power of attorney and directs the court to give such nomination the highest priority of consideration.

This bill also requires the court to consider if a less restrictive alternative is available—and, if so, then directs that the less restrictive alternative should be used instead of guardianship.  Moreover, anyone petitioning to be someone’s guardian will have to show that they have considered less restrictive alternatives and why they are not sufficient to assist the person for whom guardianship is sought.

And finally, this bill provides better tools for review and oversight of existing guardianships. It affirms strong public policy and preference for individual guardians to file regular status reports and it enhances the court’s authority to require hearings to ensure that the guardian is fulfilling their duties and responsibilities.

This proposal will be a welcome improvement to North Carolina’s existing guardianship law, placing the person for whom guardianship is sought at the center of the guardianship process, and valuing each person’s unique capabilities to create common-sense solutions on a case-by-case basis.

Adopting these policies will not only help protect older adults and their rights, it will also support North Carolina’s 1.7 million family caregivers who make it possible for older parents, spouses, and other loved ones to live independently at home – where they want to be. These family caregivers help with everything from bathing and dressing to meals and transportation. Many also are empowered to make certain legal decisions in various roles such as holding power of attorney, health care proxy, and even serving as guardian.   They deserve an effective, efficient and accountable guardianship system that provides them with the tools they need to make important decisions with, and for, their loved ones. 

North Carolina’s guardianship laws have not undergone a major revision since 1987.   Updating and reframing current state law will provide for stronger, more effective forms of court oversight and enforcement; require exploration of less restrictive options before the appointment of a guardian; and, will promote autonomy, basic rights and dignity of each individual under guardianship.   

Guardianship should be an option of last resort.  But if it’s the necessary decision, let’s make sure older adults have options that best meet their needs, without unnecessarily giving up all of their decision-making rights.  AARP urges the North Carolina General Assembly to support the Guardianship Rights Bill.  

Join AARP and other advocates and stakeholders for a Guardianship Rights Legislative Day on April 25.