Limited Guardianship: Its Implementation Is Long Overdue
![handle is hein.journals/clear28 and id is 660 raw text is: Limited Guardianship: Its
Implementation Is Long Overdue
by Sally Balch Hurme *
Mr. S was 88 years old, and he wanted to give
his property to friends rather than to his family.
Mr. S's son filed a petition for guardianship
based on the frequently used grounds that family
members should be given priority in the transfer
of property, even if it is against the wishes of the
elder. The guardian ad litem reported that Mr. S
had a good understanding of what was going on
around him but that he suffered from a lack of
judgment. Mr. S thought he should be able to
give away his own money to anyone he wanted.
He was able to converse at length with the
guardian ad litem, waive his own presence at his
hearing, and make his preferences known con-
cerning selection of a guardian. Nonetheless,
the court deemed Mr. S incompetent and
awarded full guardianship to his son. 1 Mr. S no
longer has the right to choose where he lives,
how his money is spent, where he travels, with
whom he associates, and what medical treatment
he receives. He has lost his rights to vote, testify
in court, and change his marital status. He can-
not contract, borrow money, write a check, sell
his car, or sign his tax return.
I. Introduction
ecause a grant of full or plenary powers to a
guardian results in a drastic loss of a ward's
rights, substantial attention needs to be given to
*Sally Balch Hurme is a senior legal program specialist for
Legal Counsel for the Elderly, American Association of Retired
Persons, 601 E St. NW, Washington, DC 20049, (202) 434-2120.
She appreciates the assistance provided by Gail Edson, a joint
J.D. and master in health administration degree student at the
University of Kansas.
1Mr. S's perils were reported in Kris Bulcroft et al., Elderly
Wards and Their Legal Guardians: Analysis of County Probate
Records in Ohio and Washington, 31 GERONTOLOGIST 156
(1991).
21n this article the term guardianship is used in the
generic sense indicating the process through which a court
the appropriateness of limiting the powers granted to the
guardian.2 As one author has commented, [U]se of
guardians who are limited in their powers would promote
the values of autonomy, self-determination, and individ-
ual dignity, and discourage the overreach of societal
interference and manipulation.3 Logic compels that lim-
iting the deprivation of a ward's rights through a tailored
guardianship order that matches the particular disabilities
of the individual ward is preferable to the wholesale
removal of rights through plenary orders.
This article reviews the status of legislative authority
for courts to tailor guardianship orders, the frequency that
courts actually impose limited orders, and some possible
reasons why the use of limited orders falls short of the
legislative mandate. It also suggests steps that advocates can
take to make more certain that if a guardianship is necessary
the order is limited so as to enable the protected person to
retain as many civil and personal rights as possible.
II. Historical Call for Tailored Orders
dvocates have called for limited guardianship for
more than a decade. A 1979 study by the Ameri-
can Bar Association Commission on the Men-
tally Disabled recommended that state laws be changed
to avoid an asserted overkill that is implicit in standard
guardianship proceedings.4
One of the key reasons the National Conference of
Commissioners on Uniform State Laws adopted the
Uniform Guardianship and Protective Proceedings Act
determines that an adult has sufficient incapacity so that the
court needs to take away at least some decisionmaking rights
concerning either personal or financial affairs and delegate
those rights to another person.
3Lawrence A. Frolik, Plenary Guardianship: An Analysis,
A Critique, and a Proposal for Reform, 23 ARIZ. L. REv. 599,
654 (1981).
4MELVIN AXILBUND, EXERCISING JUDGMENT FOR THE DIs-
ABLED: REPORT OF AN INQUIRY INTO LIMITED GUARDIANSHIP,
PUBLIC GUARDIANSHIP AND ADULT PROTECTIVE SERVICES IN
Six STATES, Executive Summary (1979).
Clearinghouse Review . October 1994
660](ViewImageLocal?handle=hein.journals/clear28&div=88&collection=journals&method=preview&ext=.png&size=3)
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Limited Guardianship: Its Implementation Is Long Overdue
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