Adult guardianship is a matter of state law. Guardianship laws typically are part of a state's laws on probate, trusts, estates and/or fiduciaries. The Uniform Law Commission has promulgated three pieces of model legislation that have had significant influence on the development and evolution of state guardianship law: the Uniform Probate Code, the Uniform Guardianship and Protected Proceedings Act and the Uniform Adult Guardianship and Protected Proceedings Jurisdiction Act.
The Uniform Probate Code (UPC), first approved in 1969 and revised several times since, was one of the earliest efforts to promote uniformity of state family property laws. UPC Article 5 pertains to guardianship proceedings. Other articles of the UPC address the succession of property through intestacy, wills, trusts, and other legal mechanisms for the transfer of property. As of June 2012, 18 states and the U.S. Virgin Islands have enacted the UPC, and most states have adopted or adapted portions of the code.
UPC Article 5 was revised extensively in 1982. At the same time, the Uniform Law Commission enacted the Uniform Guardianship and Protected Proceedings Act (UGPPA) as a parallel act, free standing from the UPC, to address only guardianship of minors and adults. The UGPPA was revised significantly in 1997 to update procedures for appointing guardians and conservators and strengthen due process protections for persons who are the subject of guardianship proceedings. The following year UPC Article 5 was amended to align with the UGPPA. As of June 2012, five states, the District of Columbia and the U.S. Virgin Islands have adopted the UGPPA.
Although less than half the states have enacted UPC Article 5 or the UGPPA, many provisions of state law governing guardianship proceedings are substantially similar across most jurisdictions. Some common elements of guardianship proceedings include:
- Appointment process
- Differentiating between a guardian for the person's personal affairs and a guardian to protect the person's estate or property (which may be called a conservator in some states)
- Ability to serve as guardian of both the person and the property
- Requirement of guardian of person or property to file a bond (may be waived for guardian of the person)
- Requirement to file an initial report on the protected person's personal and/or financial status; the required content of the report is substantially similar in Uniform Probate Code jurisdictions
- Requirement of guardians of the person to file a report of the protected person's general condition, health status, and continued need for guardianship protection, typically annually
- Requirement of a guardian of the estate or property to file a financial accounting, typically annually
- In Uniform Probate Code jurisdictions, the court may appoint a person (visitor) to monitor and report on the condition of the protected person; visitors typically are trained volunteers
- Authority to remove a guardian that is not performing his or her duties to protect the best interests of the protected person.
The Uniform Adult Guardianship and Protected Proceedings Jurisdiction Act (UAGPPJA) is the most recent effort to improve the guardianship process nationwide. The UAGPPJA addresses problems that can arise when the person subject to guardianship proceedings has contacts and or property in more than one state. Jurisdictional conflicts can unnecessarily prolong guardianship proceedings, increase costs for the person and the guardian, and present greater opportunities for abuse and financial exploitation of the person. The UAGPPJA sets out rules for determining which state has jurisdiction over a particular guardianship proceeding at any given time. As of June 2012, 32 states and the District of Columbia have implemented the UGPPJA, and legislation to adopt the UGPPJA is pending in an additional seven states and Puerto Rico.
The American Bar Association Commission on Law and Aging tracks legislative action and policy reforms across the states (the 2016 State Adult Guardianship Legislative Update can be found here). In addition to reducing jurisdictional conflicts through adoption of the UAGPPJA, in recent years states have focused on identifying and preventing exploitation of protected persons by guardians and conservators. Legislation in several states has addressed guardianship qualifications and mechanisms to hold guardians accountability. For example, innovations in legislation and court rules in Nebraska require criminal and financial background checks on persons nominated to be guardians and conservators and mandate bond filings by conservators of estates greater than $10,000. Courts also have specified responsibilities for reviewing inventories and accountings and for enforcing compliance with requirements and restrictions placed on guardians and conservators.