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Written By: Claire Young
Member, American Journal of Trial Advocacy
They say you can tell a lot about a culture by how they treat their dead and dying. Well, if that is true—I have some bad news for us, America. That bad news specifically applies to the elderly who are, due to their lack of living relatives or a trustworthy support system, ripe targets for abuse and exploitation. This article will discuss the current affairs of court-appointed guardianship programs for the elderly and why the system is in need of help.
- Overview of Guardianship
To preface, guardianship is often a necessary and beneficial program that can help many people in need. Guardianship is defined as the relationship between an adult who is deemed to lack the capacity to make decisions about their life, health or property, and the person who is “appointed by a court as a fiduciary to care for the person and legal affairs.”[1]
The assistance that guardians provide includes the management of finances, arrangement of healthcare, and other essential life duties. Notably, this is not a role to take lightly because those individuals are stripped of almost all their rights when they are appointed a full guardian. The process of someone being appointed a guardian often starts with the filing of a petition by the “petitioner” who believes that a particular individual, the “respondent,” lacks capacity to make important decisions for themselves.[2] Typically, the petition must include relevant facts surrounding this circumstance, and it is preferred that they include documentation from a medical professional who has evaluated the individual.[3] As for guardianship options, the petitioner, often a family or friend, can either seek to be appointed as that individual’s guardian, have the estate pay for a professional guardian, or request that a public guardian paid for by the government be appointed.[4]
After the petition has been filed, the court will conduct a hearing on the matter, where a judge will ascertain the individual’s capacity and accordingly either grant, dismiss, or modify the petition.[5] Hearings are often brief and do not last more than a few minutes. If the respondent does not have legal representation on their own, some states will appoint counsel to them and other states will appoint guardian ad litem in order to get an independent assessment of their current capacity.[6]
- Federal and State Roles
Guardianship is possible under the doctrine of parens patrie—an extension of a state’s power that maintains that the government must protect citizens who cannot protect themselves.[7] However, the laws and practices can differ greatly from jurisdiction-to-jurisdiction because guardianship is primarily governed by the laws and courts of each state.[8] Since 1969, the Uniform Law Commission (ULC) has worked towards promoting uniformity amongst state laws and issued their most recent model guardianship statute, “Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act” (“UGCOPAA”) in 2017.[9] The drafters’ intentions include protecting individuals’ due process rights, enacting more statutes to regulate guardianship, and promotion of less-restrictive alternatives to traditional guardianship[10]. However, only Washington and Maine have adopted the most recent version of the UGCOPPA.[11]
While both the federal and state systems have laws specifically related to elder abuse, neglect and exploitation, the states are responsible for issuing sanctions, remedies, and protections. On the other hand, the federal government’s focus has been to improve national communication and cooperation through data collection and setting standards of practice.[12] Examples of this include the National Adult Maltreatment Reporting System created in 2013 and the Elder Abuse Prevention and Prosecution Act of 2017.[13]
Alabama joined national efforts for guardianship reform though a project called WINGS (Working Interdisciplinary Networks of Guardianship Stakeholders)[14]. As part of this, Alabama was awarded a grant to focus on improving their guardianship process by laying fiduciary guides, collecting guardianship data through judicial probate surveys, and adding WINGS to the state court website.[15] As a further act of institutional support, WINGS has worked with Alabama officials to secure a legislative resolution in support of WINGS[16] and in September 2020, the Alabama Supreme Court granted a petition to establish the “Alabama Supreme Court Commission on Adult Guardianships and Conservatorships.”[17]
- Ex Parte Bashinsky
In late 2019, Joan Bashinsky, multi-millionaire and heiress to the Alabama Golden Flake empire, was deemed by the Jefferson County Probate court to have a level of dementia that would require her to have a temporary guardian and conservator.[18] This action was initiated when two of Bashinsky’s former employees launched her competency into question.[19] Concerns were raised regarding “a decline in Ms. Bashinsky’s mental faculties in their discussions with Ms. Bashinsky about financial matters.”[20] The employees concern began when Ms. Bashinsky loaned her grandson over $23 million dollars.[21] On top of loaning her Grandson, and only remaining blood-relative money, Petitioners successfully argued that the request of Bashinsky to have $17.5 million dollars transferred to another bank account was evidence of her deteriorated mental capacity that warranted an emergency petition for guardianship.[22]
After being appointed a guardian at an Emergency Hearing, she was effectively stripped of her ability to make decisions regarding any of her finances. However, Ms. Bashinsky fought this ruling by sending a mandamus petition to the Supreme Court of Alabama. On the issue of whether the employees had standing, the Court held that, under Ala. Code § 26-2A-1, the two former employees did, in fact, have standing as petitioners to seek a guardianship or conservatorship for Bashinsky.[23] As the law stands today, there is “no requirement that a petitioner seeking a guardianship or a conservatorship have a familial relationship with the person who is the subject of the petition.”[24] Thus, the former employees had standing simply because they were considered interested parties who had been involved with Bashinsky for decades.
The second and primary issue brought before the Supreme Court of Alabama addressed the decision by the Probate Court to disqualify Bashinsky’s attorneys during the October 2019 Emergency Hearing.[25] In addition to appointing her a guardian, that hearing resulted in Bashinsky not being able to “retain new attorneys or to present any evidence or question witnesses at that hearing.”[26] The Alabama Supreme Court ruled that while Bashinsky’s generosity to her grandson may have been financially unwise, it was not grounds for an emergency hearing because no emergency existed.[27] Thus, Bashinsky’s basic due process rights were “egregiously violated[28]. . . through a deprivation of counsel and a lack of opportunity to present evidence and argument before the probate court.”[29] It was even discussed “that the probate court had already decided that Ms. Bashinsky was not competent to make her own decisions. . . .”[30] In conclusion, the Court held that the emergency hearing from October 2019 appointing a temporary guardian and conservator for Bashinsky and disqualifying her counsel was void in violation of both her constitutional and statutory rights of due process.[31]
It could be conjectured that if Ms. Bashinsky had not had the resources she did to fight back, the original ruling from the Probate court could have stayed. However, thanks to her counsel and her own determination to prove her competency, Ms. Bashinsky is free to continue living her life and controlling her own finance as she pleases.
- A Call for Federal Funding and Reformation
As each new year passes, the Baby Boomer generation moves closer to fully occupying the 60+ age range. Thus, the need for reform in this sector is becoming an even more pressing issue because of the increasing number of people who could be subject to guardianship proceedings. Protection against toxic guardianship arrangements starts before they are court imposed, but as demonstrated in Ex Parte Bashinsky, the bar is not high for who can petition for guardianship. Thus, there is great need for vigilant oversight by the court system in overseeing guardians and monitoring the guardianship arrangements.
The current lack of oversight is often caused by underfunded state courts that draw their funding from taxpayer money. In August 2020, the ABA Comission on Law and Ageing proposed a resolution “urging Congress to create and fund a guardianship court improvement program to support states’ efforts to reform or strengthen their adult guardianship systems.”[32] This type of reform would be made possible through federal funding that would go towards the creation of strategic plans, support for stronger state court guardianship systems including financial transaction monitoring, electronic case management, and enhanced background checks.[33]
[1] Guardianship, Wolters Kluwer Bouvier Law Dictionary, (Desk ed. 2012).
[2] Sally Balch Hurme, The Fundamentals of Guardianship: What Every Guardian Should Know, Am. Bar Ass’n. (2017).
[3] Id.
[4] Unif. Law Comm’n, The Guardianship, Conservatorship, and Other Protective Arrangements Act (2017), http://www.eldersandcourts.org/Guardianship/Guardianship-Basics.aspx.
[5] Hurme, supra note 3.
[6] JUSTIA, Guardianships, (last updated April 2018), https://www.justia.com/family/guardianships/#:~:text=As%20the%20minor’s%20legal%20guardian,Guardianship%20of%20the%20person.
[7] Frank Johns, A Modern History of Guardianship Law, in Comparative Perspectives on Adult Guardianship, 17- 18 (2014), https://cap-press.com/pdf/2506.pdf.
[8] Id.
[9] Unif. Law Comm’n, The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (2017), https://www.uniformlaws.org/committees/community-home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c.
[10] Id.
[11] Id.
[12] U.S. Admin. for Cmty. Living, Elder Justice Innovation Grants, (Sept. 12, 2018) https://www.acl.gov/programs/elderjustice/elder-justice-innovation-grants-0.
[13] U.S. Admin. for Cmty. Living, What is NAMRS? (National Adult Maltreatment Reporting System), https://namrs.acl.gov/.
[14] Commission on Law and Aging, Briefing Paper Advancing Guardian Reform and Promoting Less Restrictive Options, Am. Bar Ass’n, https://www.americanbar.org/content/dam/aba/administrative/law_aging/2020-wings-briefing-paper.pdf.
[15] Id.
[16] Alabama HJR 254 (April 2018) (approved by Governor as Act #2018-575).
[17] WINGS, Our Projects, Alabama Administrative Office of Courts (2018), https://alabamawings.alacourt.gov/about-us/our-projects/; John Craft, Video Series Introduction, Alabama Law Foundation, https://alabamawings.alacourt.gov/media/1057/video-series-introduction.pdf.
[18] Ex parte Bashinsky, No. 1190193, 2020 Ala. LEXIS 104 (July 2, 2020).
[19] Id. at *5.
[20] Id.
[21] Id.
[22] Id. at *5-7.
[23] Id.
[24] Id. at *11.
[25] Id.
[26] Id. at *17.
[27] Id.
[28] Id.
[29] Id. at *18.
[30] Id.
[31] Id. at *18-19.
[32] Amanda Robert, ABA pushes for federal guardianship improvement program, https://www.abajournal.com/magazine/article/aba-pushes-for-a-federal-guardianship-court-improvement-program.
[33] Id.; See also United States Senate Special Committee on Aging, Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans (2018), https://www.aging.senate.gov/imo/media/doc/Guardianship_Report_2018_gloss_compress.pdf.
American Journal of Trial Advocacy 