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

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Article V covers guardianships for both minors and adults, and protective proceedings for property.214 It provides terminology conti- nuity in “typical” guardianship legislation, and addresses and incor- porates many recommendations of concurrent empirical research and studies.215

In particular, UPC § 5-303 constructs elaborate procedures in- cluding personal notice, and avoids the determination of “incompe- tence” by ascribing a new standard of “incapacitated person.”216 This procedure dealt with guardianship of the person and allowed very limited authority over a ward's estate without a conservatorship.217 Section 5-304 requires careful and specific notice requirements, even though state laws rarely contained notice requirements at the time of the 1969 initial publication.218 Notice of the proceeding must be served personally on the allegedly incapacitated person as well as on the person's spouse or adult children, if there is no spouse.219 If the allegedly incapacitated person has neither adult children nor a spouse, notice must be served on the person's parents, if living.220 Additional notice must be served on those who may already be serv- ing in a fiduciary capacity, or on those having care and custody of the person.221 If the initially identified persons are unavailable or cannot be served, then the nearest adult relative, if any, or any

213. Id. § 5-103(7).

214. See id. §§ 5-101 to 5-105.

215. See id. § 5-103.

216. See id. § 5-103(7).

  1. See UPC, supra note 205, §§ 5-401 to 5-431 (addressing protection of minors' and disableds' property).

  2. See id. § 5-304; see also AP Report, supra note 9.

219. See UPC, supra note 205, § 5-304(a)(1).

220. See id.

221. See id. § 5-304(a)(2).
other person directed by the court, shall be served with notice of the hearing.222

UPC § 5-309 globally declares the guardian's powers and duties as responsibility to care for, maintain custody, and control the ward; however, the guardian is not liable to third persons for the ward's actions.223 In the Author's opinion, historical prejudice is evidenced with the section declaring that the incapacitated adult's guardian's duties, powers, and responsibilities are identical to those of a mi- nor's, as described in the UPC Article V section exclusively address- ing minority.224

In this Author's opinion, the UPC effort was commendable. However, many of the states that initially adopted the UPC have strayed further and further away from its specific construction.225

    1. Research, Studies, and Changes in Laws During the 1970s Compared to the amount of research and study accomplished in

the 1960s, 1980s, and 1990s, very little was done during the 1970s. In the 1970s, the concern focused on involuntary commitments ar- ranged under the guardianship power.226 In subsequent years, many states specifically denied or carefully controlled guardians' authority

222. See id. § 5-304(a)(3), (4).

223. See id. § 5-309.

224. See UPC, supra note 205, § 5-309 cmt.

225. See, e.g., ALASKA STAT. §§ 13.26.005–13.26.320 (Michie 1996); D.C. CODE ANN.

§§ 21-2001–21-2077 (1981); N.M. STAT. ANN. §§ 45-5-101 to 45-5-433 (Michie 1995). The

Author finds it interesting that Alaska, New Mexico, and the District of Columbia draw heavily from the Model Act drafted by the ABA Commission on the Mentally Disabled.

  1. See In re Guardianship of Austin, 615 N.E.2d 411 (Ill. App. Ct. 1993) (holding that under the Probate Act, 110 1/2 ILL. STAT. ANN. 11a-14.1, the court may limit the placement options of the Office of State Guardian as guardian to placement of the ward in shelter care or a higher level of care, where the evidence does not demonstrate that the placement ordered by the court is not necessitated by the ward's physical and men- tal limitations). Many states require an automatic release from commitment at the end of 180 days unless the condition of the individual is still considered dangerous and new judicial proceedings have been initiated. See, e.g., FLA. STAT. § 394.467(3)(e) (1995); 405 ILL. COMP. STAT. ANN. 5/3-813, 5/3-815 (West 1993); N.Y. MENTAL HYG. LAW § 9.33(b) (McKinney 1996); VA. CODE ANN. § 37.1-67.3 (Michie 1990). The individual can always petition to seek release if he or she believes that his or her sanity has returned to a level that is acceptable and not dangerous. See, e.g., CAL. WELF. & INST. CODE § 5275 (West 1984); 405 ILL. COMP. STAT. ANN. 5/3-900 (West 1993); N.Y. MENTAL HYG. LAW

§ 9.33(c) (McKinney 1996). Such a petition for release would usually be heard by the court that issued the original commitment order. See, e.g., CAL. WELF. & INST. CODE

§ 5276 (West 1984); 405 ILL. COMP. STAT. ANN. 5/3-901 (West 1993).
to commit their wards to restricted environments such as medical or psychiatric residential settings.227

During the 1970s, the UPC, with its Article V on guardianship and conservatorship, gained acceptance.228 As more states followed, the commissioners and promoters of the law were optimistic that most, if not all, of the states would enact the UPC. However, al- though many states have adopted selected acts incorporated within the UPC, few have enacted the entire Code.229

    1. California — The Frontier of State Reform in the 1970s

In the 1970s, California received singular recognition for enact- ing sweeping guardianship laws and well-budgeted institutional support from the state.230 The unique and complex California guard- ianship laws authorize three distinct but overlapping statutory sys- tems for dealing with persons or affairs.231 First, California has a Probate Code guardianship for persons declared incompetent by a court.232 Second, California's Lanterman-Petris-Short conservator- ship is for individuals gravely disabled as a result of mental disorder or impairment by chronic alcoholism.233 This process is used chiefly by professional personnel at an agency already providing compre- hensive evaluation or at a facility providing intensive treatment.234 Third, California has a Probate Code conservatorship for adults who either cannot properly provide physical health, food, clothing, or shelter for themselves, or who are “substantially unable” to manage their own finances, “resist fraud or undue influence,” or for whom a guardian could be appointed.235 No finding of mental disorder is required for this third type of conservatorship, and unlike a guardianship finding, there is no declaration of incompetency.236

  1. See generally supra note 226.

  2. See Brakel and Rock, supra note 12, at 34.

  3. See UPC, supra note 205, at 3–4.
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