10 Tips for Judges on Establishing Adult Guardianships Mary Joy Quinn Director, Probate State of California County of San Francisco

Tip 1: Consider State Law Review current guardianship law Criteria for guardianship are changing State law may include a number of criteria – Example: California Probate Code § 1801

Tip 2: Review the Petition for Guardianship Determine jurisdiction and venue Evaluate the need for urgent or emergency powers Consider less restrictive alternatives Determine if petition is contested Determine the reason for the petition and whether it matches legal criteria

Tip 3: Determine Capacity Medical condition and functioning Cognitive functioning Everyday functioning Consistency of choices with values, preferences and patterns Risk of harm Means to enhance capacity – American Bar Association Commission on Law and Aging, American Psychological Association & National College of Probate Judges, Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges (2006).

Tip 4: Determine Existence of Undue Influence or Elder Abuse and Neglect Elder Abuse and Neglect Financial abuse or neglect common in petitions for guardianships – Family most often implicated – Guardians can become abusive Undue Influence – Common in guardianship petitions – Petition may be sought to remove alleged abuser from decision-making role and to seek restitution

Tip 5: Ensure Procedural Protections Appoint counsel for the person Determine if proper notice was given Require attendance at the hearing Ensure that person is informed of rights Be alert to person ’s rights to object and to name proposed guardian

Tip 6: Evaluate the Evidence Review and consider available reports and evaluations re: capacity Consider ordering additional reports and evaluations Determine if evidence meets the standard of proof, usually “clear and convincing”

Tip 7: Select the Guardian Nominations can be useful or suspect Most guardians are family members Other guardians – Profit or non profit agencies – Individual private professional guardians – Public guardian – Friends, neighbors or professionals (attorneys, accountants)

Tip 8: Conduct the Guardianship Hearing Solicit input from the person alleged to need a guardian Have a bailiff present in selected cases Limit guardian powers to those needed Tailor the guardianship to the person Establish full bonding for liquid assets Provide educational materials to the guardian

Tip 9: Make Provisions for Monitoring the Guardianship Calendar key events for court review Use a “short leash” for some cases Remember, the public expects courts to protect people who are in guardianship

Tip 10: Consider Mediation Control the process by ordering the case to mediation Require judicial review and approval of signed mediation agreement Consider that mediation has the greatest value where the parties have an ongoing relationship Consider establishing a pro bono mediation program if there is no local mediation program

Resources and Links American Bar Association Commission on Law and Aging, American Psychological Association & National College of Probate Judges. (2006) Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges.Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges American Bar Association Commission on Law and Aging. Good Guardianship. (Contains “Twelve Promising Practice Examples” of courts from around the United States.)Good Guardianship Karp, N. & Wood, E. (2007). Guarding the guardians: Promising practices for court monitoring. AARP Public Policy Institute: Washington, D.C.Guarding the guardians: Promising practices for court monitoring. Hurme, S. B. (2005) Guardianship Accountability. In M. J. Quinn. Guardianship of Adults: Achieving justice, autonomy, and safety (pp ). New York: Springer Judicial Council of California, Administrative Offices of the Courts. (2002) Handbook for conservators. Handbook for conservators Judicial Council of California, Administrative Offices of the Courts. (2008) Effective court practices for abused elders.Effective court practices for abused elders The National College of Probate Judges and the National Center for State Courts, National Probate Court Standards: Guardianship and Conservatorship National Probate Court Standards: Guardianship and Conservatorship

Resources and Links Quinn, M.J. (2005). Guardianships of adults: Achieving justice, autonomy, and safety. New York: Springer. Stiegel, L. (1995) Recommended guidelines for state courts handling cases involving elder abuse. Washington, D.C.: American Bar Association. Teaster, P. B., Wood, E. F., Schmidt, W. C., & Lawrence, S. A. (2007). Public guardianship after 25 years: In the best interest of incapacitated people? National Study of Public Guardianship, Full Report. Graduate Center for Gerontology, University of Kentucky: Lexington, Kentucky.Public guardianship after 25 years: In the best interest of incapacitated people? Wingspread---The Second National Guardianship Conference Recommendations. (2002). Stetson Law Review, XXXI (3), Wood, E. (2005). History of Guardianship. In M. J. Quinn. Guardianships of Adults: Achieving justice, autonomy, and safety (pp17-48). New York: Springer.

Resources and Links Websites National Guardianship Association National Center on Elder Abuse National College of Probate Judges American Bar Association Commission on Law and Aging American Bar Association Commission on Law and Aging National Center for State Courts, Probate Courts Resource GuideProbate Courts Resource Guide

Additional Information & Acknowledgements For additional tips, resources, and education, visit NCSC’s Center for Elders and the Courts.Center for Elders and the Courts This program was made possible through a generous grant from The Retirement Research Foundation. The Retirement Research Foundation