A Look Into Federal and State Guardianship Reform
By, Jake Blevins, Elder & Disability Law Clinic Student, Fall 2023
Guardianships are powerful tools that can enable family members to care for their loved ones who lack the ability to care for their own needs. At the same time, guardians have commonly abused this tool and taken advantage of the very people they have sworn to protect. Scholars and advocates have expressed deep concern with this abuse and pushed for reform to the guardianship process.[1] As seen in recent national headlines, Brittney Spears and Michael Oher are in public fights against their guardianships. These cases, amongst many others, have intensified the calls for change needed to protect the vulnerable involved in guardianships and conservatorships.[2]
Especially this year, the legal community has had a particular focus on the topic of guardianship reform. At the federal level, Senator Casey of Pennsylvania introduced the Guardianship Bill of Rights Act.[3] This bill establishes rights for people living under guardianships. It tasks the Department of Health and Human Services with creating a council to advise the Department of Justice on guardianship and conservatorship issues.[4] Here in Virginia, reformers received a legislative win when Governor Glenn Youngkin signed a bipartisan bill into law that made changes to the duties and state monitoring of a guardian.[5] Under the old version of the law, guardians had very little requirements regarding how often they must visit the incapacitated person. The new law helps ensure guardians do not neglect the people they protect by requiring at least three visits a year. Further, the act requires at least one of these visits to be in person.[6]
While legislators are responding to these calls[7] and may even agree on what changes should be made, lawmakers continue to disagree about whose role it is to affect change: states or the federal government. Guardianships are historically a creature of state law, with each state administering its own set of regulations.[8] Yet, as Senator Casey’s bill shows, the recent calls for change have received national attention.
Passage of this bill would mark quite a large shift in guardianship law, granting the federal government more power to regulate these relationships. And this fact was not lost on some of Senator Casey’s colleagues. On the same day the Guardianship Bill of Rights Act was introduced, the Senate Select Committee on Aging held a hearing to discuss the future of guardianships.[9] Senator Casey, who is the chairman of the Committee, described the necessity for reform and detailed how his legislation could help bring about change by instituting “guardrails” in the guardianship system.[10] The Committee’s ranking member, Senator Mike Braun, used his opening statement to push back on this legislation.[11] While he agreed that change was needed, he stressed that states should be the agents to implement improvements.[12] Senator Braun pointed to legislative efforts to reform guardianships.[13] He emphasized his belief that states were the best option to handle these reforms because they are closer to their constituents.
Disagreements about which sovereign should reform guardianships are not easy to resolve. On one hand, the federal government has both the power and money to ensure the efficacy of the renovations to the guardianship system. Further, federal law allows for baseline protections across the nation. On the other hand, states have more historical experience in administering these laws. Additionally, relying on states allows for many different types of regulations giving states the ability to experiment and develop new strategies to protect those who live in guardianships. However, if Senator Casey’s bill operated as characterized,[14] it could provide an opportunity for the state and federal government to operate in tandem.
For now, it seems like disagreements about the nature and extent of federal guardianship reform will stall congressional legislation. In the meantime, states will likely continue to make laws that help the millions of people across the nation who are currently in guardianships. With many state legislative sessions starting early next year,[15] reformers will be watching to see how legislators solve these problems.
[1] See Erica Wood, Recharging Adult Guardianship Reform: Six Current Paths Forward, 1 J. of Aging, Longevity, Law, and Policy 8, 8-10 (2016).
[2] Grace W. Orastti, Restoring rights — a path towards guardianship reform, The Hill (Oct. 11, 2023, 2:30 PM) https://thehill.com/opinion/congress-blog/4249229-restoring-rights-a-path-towards-guardianship-reform/.
[3] Guardianship Bill of Rights Act, S. 1148, 118th Cong. (2023), https://www.congress.gov/bill/118th-congress/senate-bill/1148?q=%7B%22search%22%3A%5B%22guardianship+bill+of+rights%22%5D%7D&s=1&r=1
[4] Id.
[5] Madison Hirneisen, Bills to reform guardianship system sent to Youngkin, Central Square (Mar. 21, 2023)
[6] Id.
[7] Id.
[8] Guardianship: Key Concepts and Resources, Dep’t of Just., https://www.justice.gov/elderjustice/guardianship-key-concepts-and-resources
[9] Hearing on Guardianship and Alternatives: Protection and Empowerment Before S. Select Comm. on Aging (2023) https://www.aging.senate.gov/hearings/guardianship-and-alternatives-protection-and-empowerment (opening statement of Chairman Casey).
[10] Id.
[11] Id. (opening statement of Ranking Member Braun).
[12] Id.
[13] Id.
[14] Id. (opening statement of Chairman Casey).
[15] 2024 Legislative Session Dates, MultiState, https://www.multistate.us/resources/2024-legislative-session-dates.