Two United States Senators last week called on the heads of two federal agencies to provide data and information on adult guardianship and conservatorships, as the media directs national attention to the controversial conservatorship of pop superstar Britney Spears.
In an open letter to Xavier Becerra, Secretary of the U.S. Department of Health and Human Services, and Merrick Garland, Attorney General of the U.S. Department of Justice, Senators Elizabeth Warren (D-MA) and Robert P. Casey, Jr. (D-PA) gave the Secretary and A.G. until July 14, 2021 to provide information on data systems in place for officials at the agencies to access information regarding:
- The number of adults under guardianship in the United States broken down by demographic information, reason for alleged incapacity, and type of guardianship (limited vs. full/plenary);
- The number of guardians in the United States, broken down by demographic information, whether the guardian is over the person, property, or both, and whether the guardian serves as a representative payee and type of guardian (professional vs. family);
- Value of assets controlled by the guardian;
- Complaint and grievance information about guardians, and sanctions information;
- Appeals of guardianship;
- Any data collected on implementation of alternatives to guardianship including supported decision making; and
- Data about restoration of rights.
The Senators also inquired into whether:
- Either of the agencies or its sub-agencies collect data on whether or not the individuals to which it provides benefits are subject to guardianship;
- The extent of the information collected and how that information is collected;
- An update on each agencies’ efforts to prevent guardianships, or to support individuals under guardianship and their guardians, including any new initiatives that are planned to address concerns related to guardianship;
- An update on each agencies’ implementation of the Elder Abuse Prevention and Prosecution Act; and
- To determine what resources the agencies need from Congress or what recommendation they have for Congress to improve federal efforts to design, test, and improve data collection systems related to guardianship and alternatives to guardianship.
Adult guardianship and conservatorship laws in the United States are primarily creatures of state statute. They operate within the constraints and limitations imposed by state law, federal constitutional law, and even international law.
The two Senators requested a host of information and data. But there are three requests that caught my eye: (1) type of guardianship (limited or plenary); (2) reporting; and (3) alternatives like supported decision making.
Type of Guardianship (Limited vs. Plenary)
More data on the type of guardian or conservator appointed, either limited or plenary, would be extremely helpful for policymakers, attorneys, guardians, and the public.
A plenary guardianship means the guardian has all powers over the incapacitated person available under law. A limited guardianship means that the guardian only has some of the powers legally available to guardians.
In New York, for example, Mental Hygiene Law Article 81, one of two guardianship statutes in the Empire State, requires judges to custom tailor the guardian’s powers to the individual’s needs.
For example, if a judge determines that Ron needs a guardian appointed to assist him in paying bills, Medicaid planning, and managing investments, but also determines that Ron is perfectly capable of making his own medical decisions, choosing where he lives, and traveling without assistance, the judge will limit the powers the guardian has over Ron.
On the other hand, if the judge determines that the guardian needs all powers, the guardian is granted plenary powers. New York’s second adult guardianship statute, Surrogate’s Court Procedure Act Article 17-A, is designed to be an “all or nothing” plenary statute.
Sufficient data on the number of limited vs. plenary guardianships and conservatorships is important because it could shed light on: (a) whether judges are granting more powers than necessary in contravention to a person’s civil rights; and (b) whether civil rights concerns are disrupting the ability of guardians to effectively protect their ward.
A 2011 study by the Brookdale Center for Healthy Aging at Hunter College found that the monitoring of guardians in New York State “is very limited, primarily due to poor compliance with reporting requirements and a lack of timely review of submitted reports.”
The study’s findings match my own experience. Statutorily required reports are routinely submitted and examined late. It can often take years for a Court Examiner to review and approve an annual report, for example, which means the guardian’s performance and their care of the incapacitated person is subject to limited and delayed oversight.
Guardianship is supposed to be a last resort. If there are other, less restrictive ways to intervene, such as Supported Decision Making, then guardianship is not appropriate. However, actually collecting, and measuring, data regarding alternatives is very difficult. Still, having data and bulk information on the who, what, where, when, why, and how courts analyze and decide whether appointing a guardian in circumstances where there are available alternatives would be helpful.
Hopefully, the national attention surrounding the Britney Spears case, and the Senators’ request for data, will lead to improved guardianship and conservatorship systems in the U.S., and more information and transparency.
It would be a shame if this single case, a first exposure to conservatorship and guardianship for many Americans, creates a negative attitude towards adult guardianship generally. While adult guardianship would certainly benefit from reform and additional monitoring, any reduction or elimination of guardianship systems would put the most vulnerable at risk.