AdvPublic
In 2021, guardianship became a household word. As a result of Britney Spears’ conservatorship battle and the #FreeBritney movement, even news outlets known more for fashion advice and top-ten lists such as Teen Vogue, Harper’s Bazaar, and Buzzfeed wrote in-depth articles on the issue.
And when an issue goes viral, Congress looks for ways to act.
It started in March, when Reps. Matt Gaetz (R-FL) and Jim Jordan (R-OH) made national headlines, including a Vanity Fair exclusive, for merely sending a letter to the Democratic House Judiciary Chair asking him to hold a hearing on guardianships in light of the Britney Spears case.
In July, Reps. Charlie Crist (D-FL) and Nancy Mace (R-SC) introduced the Freedom and Right to Emancipate from Exploitation (FREE) Act, which would provide federal grants to states so long as they met certain conditions for their guardianship programs, such as requiring independent caseworkers to monitor for signs of abuse at the ward’s request. At present, the bill has no co-sponsors.
In September, the Senate Judiciary Subcommittee on the Constitution held a hearing on “Toxic Conservatorships.” NAELA submitted a statement for the record noting that “[u]nfortunately, inadequate and inconsistent application of state laws and a severe lack of resources has led to people unjustly losing their rights, financial exploitation from unscrupulous actors, neglect (including self-neglect), and outright physical abuse.”
Compared to past discussions, the focus has shifted more toward the rights of younger people with disabilities under guardianship and away from concerns about abuse, neglect, and exploitation of older adults.
Allegations, such as the fact that Britney Spears was forced to have an IUD against her will, have made the public discussion more fundamental: When is it appropriate for individuals to be under guardianship? What due process rights should exist? What powers should a guardian have?
The case has also raised policymakers’ interest in alternatives such as supportive decision-making. At least 12 states now have a supportive decision-making statute in place.
Somewhat fortuitously, the National Guardianship Network planned the 4th National Guardianship Summit in May 2021. NAELA sent representatives and recently endorsed the participants’ recommendations, which fell into six areas:
• Enhancing the rights of persons subject to guardianship
• Supporting decision-making
• Limited guardianship, protective arrangements, and diverting pipelines
• Rethinking guardianship monitoring and addressing abuse
• Addressing fiduciary responsibilities and tensions
• Guardianship court improvement programs
Following adoption of these principles, NAELA has joined forces with other groups in the National Guardianship Network (NGN), such as the ABA Commission on Law and Aging, to advocate for a guardianship court improvement plan at the Federal level.
A Guardianship Court Improvement Program would provide approximately $30 million a year in grants to states in order to enhance the rights and well-being of adults subject to, or potentially subject to, guardianship. The funding would be used to provide for more data collection, improve oversight, and to enhance collaboration between courts, agencies, and other organizations related to guardianship.
Right now, Congress’ focus is on two separate plans, a bipartisan infrastructure plan and a democratic budget deal, with trillions of dollars at stake. Those negotiations could potentially last until the end of the year.
NAELA is advocating as part of NGN to get funding for the Guardianship Court Improvement Plan into the democratic budget deal, but it appears unlikely at this juncture. Ultimately, with guardianship becoming a household word, it’s likely policymakers’ interest isn’t going away any time soon.