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Judicial guardianship protocols assist courts to prevent and address problems in guardianship and conservatorship cases

October 20, 2021

A man with severe mental illness counted on his daughter, who was assigned to be his guardian, to oversee his finances. Needing to get him to appointments, she withdrew $10,000, most of her father’s savings, to buy herself a used car. When questioned, she said that she had no other way to transport him. Her sister made a complaint to the court.

As the population of Americans who need assistance increases due to a variety of reasons including dementia, severe mental illness, and traumatic brain injuries, so does the risk of abuse, neglect, and exploitation. When a court grants a guardianship or conservatorship to protect a person or their assets, the court retains the responsibility to monitor that person’s well-being throughout the life of the case. Because many judges only see a few guardianship cases per year, special resources to help courts are necessary.

To guide judicial considerations when establishing a guardianship, the Pre-appointment Protocol provides examples and directs court staff to the next step at each stage in the process. It includes best practices and resources from other states, as well as consideration of less restrictive alternatives and strategies to prevent problems.

Problems can arise  even in carefully considered guardianships or conservatorships. As a guide for decision-making when complaints arise, NCSC developed an interactive Guardianship/Conservatorship Judicial Response Protocol. This protocol guides courts through the investigation, hearing process, and determination with best practices. The protocol then outlines options to consider when there is evidence of wrongdoing. These options include removing the guardian, , ordering the guardian to repay exploited finances, notifying bonding companies, reporting to professional licensing boards, increasing monitoring of the case, and/or referring the case to the district attorney.

The need for guardianship reform and judicial protocols has become a priority for many state court leaders, especially in light of media reports highlighting egregious cases of guardianship abuse. Most financial abuse never makes the headlines, however. Judges report that the financial abuse they see is mostly from family members, as in the example above. In some cases, the guardian or conservator may not fully understand their role. In others, they are deliberately taking advantage of a vulnerable person. NCSC’s newest resources help judges consider the actions they can take to prevent and respond to financial abuse. They can be found on the website for the Center for Elders and the Courts, along with other information and training resources. In addition, Trending Topics looked at this subject in July 2021’s piece on an NCSC guardianship monitoring survey that revealed continuing challenges along with some improvements. One of NCSC’s Vice Presidents David Slayton recently testified before Congress on the subject of Toxic Conservatorships: The Need for Reform, referencing his experiences in Texas as that State Court Administrator.

Has your state or court examined issues related to guardianships and conservatorships? Follow the National Center for State Courts on Facebook, Twitter, Instagram, or Pinterest and share your experiences! For more information, contact Knowledge@ncsc.org or call 800-616-6164.

The survey report was developed under grant number SJI-15-P-237 from the State Justice Institute. The points of view expressed are those of the authors and do not necessarily represent the official position or policies of the State Justice Institute.