Nina A. Kohn, Associate Dean for Research, David M. Levy, Professor of Law at the Syracuse University College of Law, and Catheryn Koss, Founder and former Executive Director of the Senior Law Resource Center, have written an excellent and revealing article describing the challenges for seniors and the disabled in obtaining counsel in modern guardianship cases. The article, "LAWYERS FOR LEGAL GHOSTS: THE LEGALITY AND ETHICS OF REPRESENTING PERSONS SUBJECT TO GUARDIANSHIP, is published in the Washington Law Review.
The article begins by describing the landmark guardianship battle fought in 2012 by Jenny Hatch, a 28-year-old woman with Down syndrome. Ms. Hatch was placed in a group home by her parents, who were appointed as her guardians. Ms Hatch grew despondent about the restrictive placement, the loss of her independent lifestyle, and that she was no longer permitted to work at a local thrift store. She retained an attorney to challenge both the existence of the guardianship and the appointment of her parents as guardians.
She prevailed. In a landmark decision, a Virginia court removed her parents as guardians, appointed Ms. Hatch's close friends in their place, and held that the guardianship itself would terminate after a year. A year later, she was legally reincarnated, restored from being a ward of the state to full legal personhood. The Hatch case was reported on this blog.
The authors next describe why the Hatch case was so extraordinary:
Jenny’s story captured national attention in large part because it is so unusual. Few persons subject to guardianship are able to change the terms and conditions of their guardianships, let alone regain legal capacity after a court has determined that they lack capacity to make decisions for themselves. Jenny [Ms. Hatch] was able to do both.A key factor in this success was that Jenny had access to legal representation. Unfortunately, many people in Jenny’s position do not. A major factor contributing to this lack of access is that attorneys are unsure whether they may legally and ethically represent a person subject guardianship. Attorney reluctance to undertake such representation is understandable. [emphasis added]. A person subject to guardianship has, by definition, been judicially determined to lack legal capacity and his or her decisions have been delegated to a third party... Through this process, the person has not only been declared by a court to be incapable of directing his or her own affairs but has typically been stripped of the capacity to enter into a legally binding contract. Both may appear to be insurmountable barriers [to effective legal representation]. Attorneys generally can only represent clients who have the capacity to enter into a contract to hire the attorney and the capacity to direct the attorney during the course of the representation. Moreover, in some jurisdictions, probate courts have taken the position that they can prevent a lawyer from representing a person subject to guardianship who wishes to challenge the guardianship.
The authors agree that, especially under these circumstances, guardianship can be a devastating result with significant consequence. The abstract to the article explains:
Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed — as research suggests is not infrequently the case [emphasis added] — the person subject to guardianship may rightly wish to mount a legal challenge. However, effectively doing so requires the assistance of an attorney, and persons subject to guardianship typically have not only been declared by a court to be incapable of directing their own affairs but have been stripped of the capacity to contract. As a result, those who wish to challenge the terms and conditions of their guardianship, or even merely to exercise unrelated retained rights, can be stymied because attorneys are unwilling to accept representation for fear that it is unlawful or unethical.
The aging of the population means the number of persons potentially subject to guardianship is likely increasing. Although precise figures are unknown, estimates suggest that about 1.5 million adults are subject to guardianships in the United States. Many of these are older persons who suffer from Alzheimer’s disease or other forms of dementia. The number of persons subject to guardianship may grow as the number of persons with such conditions increases. The number of older individuals over age sixty-five in the United States diagnosed with Alzheimer’s disease is projected to reach more than seven million by the year 2025, a forty percent increase over 2014 figures.
"Perhaps more importantly, there is a growing recognition that many guardianships have been wrongly imposed or are overbroad." This recognition, encouraged in part by the United Nation’s adoption of the Convention on the Rights of Persons with Disabilities (CRPD), has, according to the authors, led to increased interest from the disability rights community in restoring the rights of persons subject to guardianship by challenging judicial determinations of incapacity.
For more information regarding guardianship, see the following articles:
- Estate Plans Should Consider and Attempt to Resolve Guardianship;
- Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage;
- GAO reports on Guardianship Abuse;
- National Groups Acknowledge Need for Guardianship Reform;
- Report on Abuse by Guardians and the Guardianship Process Released;
- Another Reason for Guardianship Planning: Guardian Convicted of Homicide in Death of Ward
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