PERSON-CENTERED PLANNING IN GUARDIANSHIP: A LITTLE HOPE FOR THE FUTURE

Abstract

Across the states, territories, and the District of Columbia, American guardianship functions as a statutory grant of legal authority to a person or entity over an adjudicated incompetent or incapacitated person (“AIP”). It is widely described as the most intrusive of the fiduciary powers, having earned such a reputation in recent decades as to have AIPs declared “legally dead.” America’s inherited collective form of guardianship originated over the course of centuries and across many cultures of western civilization. A primary component rooted in the inheritance was the doctrine of parens patriae. The focus of parens patriae was the Crown’s (now state probate and guardianship judges’) exercise of its paternal royal prerogative over its subjects unable to protect themselves, but with the singular objective of protecting the subjects’ properties for the Crown. This myopic concern for guardianship property has continued in American jurisprudence, where concern for the AIPs themselves was considered beyond the expertise of the courts, and better relegated to public and private social agencies. This continues to be the indictment of guardianship, where vulnerable citizens, those mentally ill or mentally or physically challenged , have been condemned to a perverse legal system that protects property over the person. While countless American studies have found that guardianship protects those adults amongst us who are helpless and vulnerable, they have also uncovered evils in guardianship: removing all individual rights; denying access, connection, and voice to those lost in guardianship’s gulag; and still continuing a process rooted in systemic perversities. Recent reexaminations of monitoring and public guardians acknowledge that guardianship still limits the autonomy, individuality, self-esteem, and self-determination of AIPs.