A CALL FOR STANDARDS: AN OVERVIEW OF THE CURRENT STATUS AND NEED FOR GUARDIAN STANDARDS OF CONDUCT AND CODES OF ETHICS

Abstract

The role of trust in guardianships is rarely discussed, perhaps because of the assumption that court supervision of guardians reduces their power to act in any way other than trustworthy. However, as the number of persons needing guardianship protection increases while the resources available to courts to finance supervision decreases, the role of guardian is starting to become a more conventional fiduciary relationship complete with a hallmark downside—lack of supervision. Because of this trend, the concept of delineated standards for performance of a guardian’s duties has taken on critical importance. The 2001 Wingspan Conference, the second national conference on guardianship reform since the need for reform was publicized in 1987, included Recommendation 45, directing states to adopt “minimum standards of practice for guardians, using the National Guardianship Association Standards of Practice as a model.” This recommendation came from the conference working group on Agency Guardianship, whose primary focus was on professional agencies and individuals providing guardianship services, either through a governmental agency or for a fee. The recommendation applied to all guardians, and recognized the need for standards that could offer guidance to acting guardians and could judge their performance. The progress on this recommendation has been very slow; and whether the same standards should apply to all guardians and whether standards ought to be considered best practices or minimum standards has yet to be determined. The focus of the 2011 conference is postappointment issues, and the role of uniform, delineated standards of conduct for guardians when administering guardianship is the necessary starting point. This paper will first explore in Part II how the duties of a guardian have been defined in the past and discuss the increasing call for delineated standards for guardians, due in part to the inability of courts to monitor guardianships adequately. Part III will discuss existing standards and codes of ethics for guardians and the extent to which they are being put into use in specific states. Part IV will then raise questions about the content and role of standards for guardians, asking how courts have used existing standards and how they should be used; whether there should be different standards for professional and family guardians; and whether standards should be used only as educational tools or whether guardians should be judged on their compliance with standards. Finally, Part V will discuss the role of standards in governing all fiduciary conduct and the need for standards as a way to define the fiduciary obligations of a guardian. The purpose of the article is to give conference delegates and those charged with enactment the necessary background to discuss and draft recommendations that will implement Wingspan Recommendation 45 and further focus the role of standards in guardianship administration.