Guardianship folly: the misgovernment of parens patriae and the forecast of its crumbling linkage to unprotected older americans in the



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STETSON LAW REVIEW





VOLUME XXVII SUMMER 1997 NUMBER 1




ARTICLES

GUARDIANSHIP FOLLY: THE MISGOVERNMENT OF PARENS PATRIAE AND THE FORECAST OF ITS CRUMBLING LINKAGE TO UNPROTECTED OLDER AMERICANS IN THE TWENTY-FIRST CENTURY — A MARCH OF FOLLY? OR JUST A MASK OF VIRTUAL REALITY?*

A. Frank Johns**

Edited by Vicki Joiner Bowers***




* © 1997 A. Frank Johns. All rights reserved.

** A. Frank Johns, Esq., earned his undergraduate and law degrees from Florida State University in 1968 and 1971, respectively. He is a partner in the Greensboro, North Carolina firm of Booth Harrington Johns & Toman, L.L.P., where he specializes in elder law, and advocacy and litigation for the rights of handicapped and disabled individuals. Johns served elder North Carolina citizens through creation of the nonprofit Corporation of Guardianship, Inc., a last resort entity for indigent, incompetent elder cit- izens who have no other support available. He was a charter board member of the Na- tional Guardianship Association and served from 1988–93. Johns is the first chair of the Elder Law Section of the North Carolina Bar. He has served as National Association of Elder Law Attorneys (NAELA) Publications Committee Chair as well as editor of the NAELA Quarterly, Chair of the Membership Committee, and Chair of the Amicus subcommittee. Johns has served on the NAELA Board of Directors for the past five

years and is the past Chair of the NAELA Guardianship/Capacity Special Interest Group. Johns is a Certified Elder Law Attorney and was elected a Fellow of NAELA in 1995. In May 1997, Johns was elected Vice President of NAELA. He has received many awards, including the 1991 Paul Lichterman Award for outstanding achievement in legal services for older persons, the 1993 North Carolina Bar Association Pro Bono Service Award, and the 1996 Theresa Foundation Award.

*** The Author gratefully acknowledges the extensive editorial assistance of Vicki



TABLE OF CONTENTS

  1. INTRODUCTION 5

  2. GUARDIANSHIP HISTORY AND THE DOCTRINE OF PARENS PATRIAE MISGOVERNMENT

AMOUNTING TO FOLLY 6

    1. Governmental Pursuit of Contrary

Interests 6

      1. Greek Misgovernment 8

      2. Roman Misgovernment 10

      3. English Misgovernment 14

      4. American Misgovernment 19

        1. Colonial America to the Mid-1800s 19

        2. The Mid-Nineteenth Century 20

        3. The Mid-Twentieth Century 22

  1. SEVERAL DECADES OF EMPIRICAL RESEARCH PROJECTS, STUDIES, AND CHANGES IN LAWS 28

    1. General Overview 28

    2. Research, Studies, and Changes in Laws

During the 1960s 29

      1. The 1961 Mentally Disabled and the

Law Study 29

      1. The 1968 Mental Competency Study 31

      2. The Uniform Probate Code, Article V

Protection of Persons Under Disability

and Their Property 34

    1. Research, Studies, and Changes in Laws During

the 1970s 37

      1. California — The Frontier of State Reform

in the 1970s 37

      1. State and Community Empirical Research and Studies Finding Glaring Governmental

Joiner Bowers. Mrs. Bowers graduated in 1994 from Jacksonville University, magna cum laude, with her B.S. in Business Administration. She earned her J.D. from Stetson Uni- versity College of Law in May 1997, where she was a member of the Stetson Law Re- view and the Legal Writing Honor Society, and Research Assistant to Professor Rebecca

  1. Morgan. She received the Spring 1997 Elizabeth M. Leeman Award for her comment, Advance Directives: Peace of Mind or False Security?, 26 STETSON L. REV. 677 (1997), and also received the Matthew Bender Elder Law Book Award. Mrs. Bowers is associ- ated with the Law Offices of A. Hamilton Cooke, Jacksonville, Florida.

Perversity of the 1970s 39

      1. The UPC and Article V in the 1970s 40

      2. The 1978 Model Act of the ABA Commission

on the Mentally Disabled 41

  1. Research, Studies, and Changes in Laws During

the 1980s 43

    1. The 1981 Findings of a National Study of

Public Guardianship and the Elderly 44

    1. The 1982 Uniform Guardianship and

Protective Proceedings Act 45

    1. The 1986 National Conference of the Judiciary on Guardianship Proceedings

for the Elderly 46

    1. The Associated Press Exposé of 1987 47

    2. The 1988 ABA Conference “Wingspread”

National Guardianship Symposium 48

    1. The 1989 AARP Public Policy Institute Conference and Monograph Aging and

the Law: Looking into the Next Century 50

    1. Congressional Hearings and Reports

Addressing Guardianship Issues 52

  1. Research, Studies, and Changes in Laws During

the 1990s 53

    1. The National Judicial College and ABA Commis- sions on Legal Problems of the Elderly and Mentally Disabled 1991 Examination of Court-

Related Needs of the Elderly and Persons

with Disabilities 53

    1. The 1991 Guardianship Monitoring

Project 54

    1. United States Senate Special Committee on Aging Workshops Roundtable Discus-

sions on Guardianship 57

    1. The 1993 Country-Wide Survey of Public Guardianship 58

    2. The 1993 National Probate Court Standards Addressing Guardianship

and Conservatorship 60

    1. The 1994 ABA Senior Lawyers Division

Task Force on Guardianship Reform Recommendations for Revision of the

Uniform Probate Code Article V 61

    1. The 1994 National Study of Guardianship Systems: Findings and Recommendations 62

    2. Recommendations of the 1995 White House Conference on Aging 65

  1. A CRUMBLING LINKAGE FOR OLDER AMERICANS

IN THE TWENTY-FIRST CENTURY 66

    1. The Complicated Process of Adjudications 70

      1. Two Views of the Guardianship

Adjudication Process 70

        1. Proposal for Change A Bifurcated

Entry 71

          1. Nearly Obvious Cases of Incapacity — Administrative Treatment 72

            1. Case Study: The Nearly Obvious Incapacity of John Doe 72

          2. Almost Obvious Cases of Capacity — Judicial Treatment 73

            1. Case Study: The Almost Obvious Capacity of Sallie Doe 73

    1. Crumbling Linkage in Guardianship

Administration 77

      1. Guardianship Monitoring 77

        1. Two Parts of the Answer to

Guardianship Monitoring 78

          1. Nonprofit Organizations and

Trained Volunteers 78

          1. National Database and Uniformity

of Process 79

        1. What Is Left Unanswered in

Monitoring 80

          1. Increasing Numbers of Poor, Unprotected Older Americans with

No Family or Close Friends 80

      1. Nonprofit Guardianship Programs 82

        1. Wisconsin Guardianship Support

Center 82

        1. The Cathedral Foundation 83

        2. Silver Key Senior Services 83

        3. Pro-Seniors, Inc. 84

        4. Corporation of Guardianship, Inc. 85

      1. State Offices of Public Guardianship: The Tougher the Law, the More Expensive the

Process 86

  1. CONCLUSION 87




  1. INTRODUCTION

The older Americans' army of advocates numbers in the hun- dreds of thousands. Professor John J. Regan,1 a consummate vision- ary and one of many advocates instantly recognized and distin- guished by tireless efforts and superior skills, often wrote and spoke about society's future laws, particularly those affecting older Ameri- cans.2 Regan dedicated ardent professional examination and per- sonal advocacy in, inter alia, the legal areas of guardianships and conservatorships.3 He left us sounding an alarm. Regan's alarm warned of inevitable failures in the linkages between judicial ad- ministration of guardianships and conservatorships and the older Americans who constitute the vast majority of individuals placed within those guardianships and conservatorships.4
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