When We Unperson in the Name of Beneficence
May 17, 2018
by Pamela Teaster, PhD
In 1980, legal scholar John Regan described a system of guardianship as “half ogre and half Santa,” stressing that Santa or the beneficent side of guardianship ensures that highly vulnerable adults are protected, cared for, and have their remaining rights, such as the right to vote, preserved. However, on the ogre side, people under guardianship are too frequently stripped of all their legal rights: the right to marry, the right to buy and sell property, and the right to contract.
In theory, a person under guardianship should be better off with a guardian than without one. Minimally, a guardian should ensure that a protected person has an acceptable place to live, receives proper nutrition, and has appropriate health care. Unfortunately and too frequently, the fate of people under guardianship (i.e., persons with mental illness, dementia, developmental disabilities, or a combination thereof), is poorly monitored in sufficient, meaningful, and diligent ways. This inattention threatens to unperson them. The awesome power over highly vulnerable adults wielded by the guardianship system demands adherence to the accountability protections already in place, but that are not well implemented (e.g., assessments, care plans, annual reports, accountings).
There are four kinds of guardians: family or friend guardians, volunteer guardians, paid professional guardians, and public guardians. Family and friend guardians are the most common; other guardians have a more attenuated relationship to the protected person. Most guardians are also doing their best for the individuals entrusted to them and for whom they serve as surrogate decision makers. However, the motives and practices of a subset of guardians are extremely troubling. Some paid professional and public guardians have ratios of one to over 100 protected persons, a ratio far too high to afford an individualized and appropriate level of protection and care.
Some guardians set unreasonably high fees for service, as illustrated by Rachel Aviv, who describes egregious treatment by some paid professional guardians who took advantage of protected persons under their care. Guardians ignored the needs of protected persons and warehoused them in facilities with documentation of providing poor care, all the while charging unreasonably high compensation for services never rendered or poorly rendered as well as isolating them from their families (e.g., not checking on the protected person, not completing required paperwork, refusing family and friend visits to the protected person).
At the heart of the problem is the guardianship system itself, a system noted bioethicist Nancy Dubler once described as a backwater, as broken, as ailing, or as a mess/unconscionable. Not one state in the entire country knows how many people are under guardianship—an incomprehensible situation in the information age—and one that makes it impossible to have an appropriate level of accountability for each person who has a guardian. The problem of inadequate oversight opens the door for another and equally insidious problem: abuse by unscrupulous guardians.
We know very little about the scope of guardian abusedespite inquiry by scholars and government entities alike. If the scope of mistreatment is unknown, strategies for prevention and remedies for intervention will be difficult at best. Notably, a number of states are instituting better computer monitoring (e.g., Florida, Minnesota, Virginia) and are exploring legislation for an improved system of guardianship for persons who are incapacitated but alone (e.g., New York, Massachusetts). These efforts and others, such as reform efforts by state-level Working Interdisciplinary Networks of Guardianship Stakeholders/WINGS, must go forward in all states in the country.
As I stated in my recent testimony to the U.S. Senate Committee on Aging, “Now is the time for the powerful and important guardianship system . . . to demand and receive adequate resources.” Systems should be established that appropriately monitor the content and timeliness of guardians’ annual reports as well as the surrogate decisions they make. The courts should institute restrictions and/or enhanced scrutiny when one person has more than 20 protected persons under his or her care (in 2010, we recommended a 1:20 ratio). Guardians who abuse, neglect, or exploit protected persons should receive enhanced penalties for their crimes. And, finally, persons under guardianship should enjoy supported decision making whenever possible and have their rights restored in part or totally with all deliberate speed.
Should we choose to do otherwise, we are no respecter of persons. When the public continues to permit inadequate guardianship services and oversight, we unperson, we disrespect, and we perpetuate a system that remains a backwater, one that remains broken, ailing, and a mess/unconscionable.
Teaster, P.B. (18 April 2018). Testimony. Abuse of power: Exploitation of older Americans by guardians and others they trust. Retrieved online at https://www.aging.senate.gov/imo/media/doc/SCATeaster041818.pdf
Wood, E., Teaster, P., & Cassidy, J. (2017). Restoration of rights in adult guardianship: Research and recommendations. Washington, DC: American Bar Association. Retrieved online at https://www.americanbar.org/content/dam/aba/administrative/law_aging/restoration%20report.authcheckdam.pdf