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

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This Article examines those linkages against the backdrop of

  1. John J. Regan, the Jack and Freda Dicker Distinguished Professor of Health Care Law at Hofstra University School of Law, and authority on the elderly's legal rights, died, too soon, on September 1, 1995. See John J. Regan, Ex-Priest, Expert on Elderly Rights, CHI. TRIB., Sept. 10, 1995, available in 1995 WL 6244342.

  2. See, e.g., JOHN J. REGAN, TAX, ESTATE & FINANCIAL PLANNING FOR THE ELDERLY (1995); John J. Regan, Protecting the Elderly: The New Paternalism, 32 HASTINGS L.J. 1111 (1981); John J. Regan, Protective Services for the Elderly: Commitment, Guardian- ship, and Alternatives, 13 WM. & MARY L. REV. 569 (1972).

  3. See Roundtable Discussion on Guardianship: Workshop Before the Senate Spe- cial Comm. on Aging Hearings on S. 102-820, 102d Cong. 21–31 (1992) (statement of John J. Regan) [hereinafter Roundtable 102-820]. Like similar writings, the term “guardianship” in this Article includes the broad spectrum of words and language used across the country to describe surrogate decisionmaking for another person through court appointment that transfers the power over the individual's rights, liberties, placement, and finances to another person or entity. These words and language include, but are not limited to, conservatorship, interdiction, committee, curator, fiduciary, visitor, public trustee, and next friend. See Erica F. Wood & N.E.H. Hull, Guardianship of the Elderly: A Primer for Attorneys, 1990 A.B.A. COMM. ON LEGAL PROBS. ELDERLY 2–3.

  4. See Roundtable 102-820, supra note 3, at 21–23.

the parens patriae5 doctrine, coupled with the historical march of folly and misgovernment of guardianship6 of the “collective govern- ments” of Greece, Rome, England and America.7 This Article analyz- es several decades of empirical research and studies of changes in laws that only created a mask of virtual reality. Regan's 1992 de- scription of major administrative problems in guardianship law is discussed.8 The Article concludes with a dire forecast of “too little, too late” for America's World War II baby-boomers as they enter the twenty-first century. Similar to their effect on the American educa- tional system, the poor, unprotected old boomers will exacerbate, overwhelm, and break the ailing “legally dead” system.9 However, unlike the educational system, America's guardianship system does not have a sound foundation upon which to rebuild and accommo- date the huge population. The American guardianship system is a joke. Although some progress has been made, it is doubtful that the third millennium will begin with either a comprehensive system or an organized network in place able to solve the guardianship prob- lems and serve the masses.


  1. Parens patriae traditionally refers to the state's role as sovereign and guardian of legally disabled persons. BLACK'S LAW DICTIONARY 1114 (6th ed. 1990).

  2. The ultimate folly has been defined as nuclear war. See generally BARBARA W. TUCHMAN, THE MARCH OF FOLLY: FROM TROY TO VIETNAM (1984). This Article parallels Tuchman's analysis of governments' historical follies pursuing policies contrary to self- interest, with the folly of guardianship's misgovernment. See also Sally Balch Hurme, Steps to Enhance Guardianship Monitoring, 1991 A.B.A. COMM. ON LEGAL PROBS. ELDER- LY 5–7.

  3. See generally TUCHMAN, supra note 6, at 5. “Collective governments” is applied in two equally appropriate ways in the guardianship context: (1) the multiple regimes controlling a country over the centuries; and (2) the several countries to which the prin- ciple is being applied in this text. Hereafter, in this Article, the term “collective govern- ments” refers to the Greek, Roman, English, and American governments.

  4. See Roundtable 102-820, supra note 3, at 21–23.

  5. Cf. Fred Bayles & Scott McCartney, Declared “Legally Dead” by a Troubled System, AP SPECIAL REPORT: GUARDIANS OF THE ELDERLY, AN AILING SYSTEM, Sept. 20, 1987, at 1 [hereinafter the AP Report] (quoting Dr. Dennis Koson, a Florida law and psychiatry expert, who stated that the guardianship process declares wards “legally dead”). The Associated Press Special Report contains several articles that are referred to throughout this Article.


This section summarizes the historical application of the guard- ianship process. It examines the application of laws against ele- ments that define misgovernment, focusing specifically on the col- lective governments. This section concludes that guardianship re- mains a march of folly, particularly when focused on the person of the citizens served and protected.

    1. Governmental Pursuit of Contrary Interests

Although the ultimate folly does not cloud guardianship, gov- ernments historically pursue guardianship policies that are contrary to the citizens' self interests.10 Guardianship policies, the bain of the collective governments, span the globe and the centuries, function- ing under monarchy, oligarchy, and democracy.11 Scorned through the ages by those who lost civil rights and independence, guardian- ship policy assumed many different forms. Although most were con- demned at the time as counter-productive, better alternatives re- mained unutilized in favor of implemented policies driven by groups or bureaucrats.12

  1. Cf. TUCHMAN, supra note 6, at 4–6. In this context, guardianship meets Tuchman's description of folly's three elements. First, its counter-productivity must have been foreseeable at the time to avoid unfairly judging the past by the present. See id. at

  1. [A]ll policy is determined by the mores of its age.” Id. Second, a feasible alternative must have been available. See id. Third, the questioned policy should survive an individ- ual ruler, which is too frequent and individual to be generalized, and be that of a group exceeding a single political lifetime. See id. Tuchman concludes, however, that

[c]ollective government or a succession of rulers in the same office, as in the case of the Renaissance popes, raises a more significant problem. . . . Folly's appearance is independent of era or locality; it is timeless and universal, al- though the habits and beliefs of a particular time and place determine the form it takes. It is unrelated to type of regime: monarchy, oligarchy and democracy produce it equally. Nor is it peculiar to nation or class.

Id. at 5–6. Tuchman queries, “Why do holders of high office so often act contrary to the way reason points and enlightened self-interest suggests? Why does intelligent mental process seem so often not to function?” Id. at 4; see also Winsor C. Schmidt, Commen- tary: Revising Revisionism in Guardianship: An Assessment of Legal Reform of Decisional Incapacity, in OLDER ADULTS' DECISION-MAKING AND THE LAW 270 (Michael Smyer et al. eds., 1996). Guardianship research reveals a “contemporary example of oppressive authority necessitating application and implementation of a rights shield.” Id. at 271.

    1. See infra text accompanying notes 10–174 for a discussion of governmental treatments of guardianship; supra note 6 and accompanying text.


Guardianship is a compelling form of intervention when coupled with parens patriae,13 a concept designed to protect personal and financial well-being by allowing government invasion of individual autonomy.14

Beginning with the collective governments, parens patriae is a good example of government acting contrary to reason while seeking to implement guardianship policy. Does it rise to and qualify as folly? Possibly. It is helpful to consider the various governmental forms that often combine to result in a folly such as misgovernment:

  1. historically prevalent tyranny or oppression; (2) excess ambition, such as the Athenian attempt to conquer Sicily, or the German at- tempt to rule by a master race; (3) incompetence or decadence, such as the Roman Empire, the Romanovs, or China's last imperial dy- nasty; and (4) folly or perversity, defined as the pursuit of policy contrary to self interest.15

    1. Greek Misgovernment

Guardianship law's ancient precursors patterned taboos and tribal customs.16 Before the Golden Age of Greece, the dominant belief was that supernatural powers imposed punishment, causing mental disability and demon-possession.17 The cure was magic, with demon exorcisms utilizing bizarre and brutally inhumane treat-

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