Guardianship* is an ancient law. In Olde England, the King had to provide for the welfare of his subjects. The historical purpose of guardianship – or “lunatic proceedings” – as they were then known, was to protect them and their property. If they became well, their property was returned.
That idea was adopted in America, and also known as “lunatic proceedings” in the early years – with one difference – you rarely get your money back! The “protection” statutes are promulgated under the police power of the state, from its duty to protect its citizens – “parens patriae” (parent of the country)!
Those adjudged to be incompetent become wards of the State under what are now known as guardianships or conservatorships. A fiduciary – a person of trust – is appointed by the court to take charge of the individuals’ life, liberty and property. To PROTECT and CONSERVE is the ostensible purpose of the law.
But are these vulnerable people always protected and their property and assets conserved according to law? Unfortunately not. Guardianship/conservatorship has grown into something very different, more like a feeding frenzy for unscrupulous professionals and for a growing number of nonprofit corporations.
“Guardianizing” an innocent person for nefarious purposes based on unfounded allegations, false information and exaggeration in the petition, is becoming increasingly easier due to the lack of monitoring of the state courts. “Incapacitated” now replaces “incompetent” in a growing number of state statutes, thereby exposing even persons with minor or temporary physical disabilities to a complete and potentially permanent loss of liberty and property, most often to the day they die.
It’s like a whirlpool – once you get sucked in, it’s hard to get out – even in an “emergency” guardianship, which generally drags on and usually becomes permanent.
The emergency is supposed to be dealt with on a short-term basis, but your family can go bankrupt trying to get you out of it!
*Most states use the term “guardianship,” some use “conservatorship,” some use both; while a few use other terms like, “interdiction.” “Guardianship” is the most widely used term.
Not all judges are bad, nor all attorneys, nor all guardians. NASGA does not paint these professionals with a wide brush. We applaud the good guys – those who take pride in their profession and those who vigorously and zealously defend the rights and wishes of guardianship and conservatorship wards and their families who are in unlawful or abusive situations. And we know and appreciate that there are plenty of good guys. We have personally heard from many of them and hope to hear from many more!
Nor is NASGA anti-guardianship; guardianship is a necessary law. Our mission is to reform, not abolish.
We are not lawyers, and we do not give legal advice nor do we give lawyer recommendations; instead, we work to reform the broken system.