State Statutory Authority for Restoration of Rights in Termination of Adult Guardianship
Guardianships 1 are designed to protect the interest of incapacitated adults. Guardianship is the
only proceeding in American courts in which adults can be permanently deprived of rights solely
in order to protect their well-being when they are unable to care for themselves. 2 Due to the loss
of individual rights, guardianships should be a last resort option when no other less restrictive
alternatives are available, both at the time of adjudication and throughout the guardianship. An
adult under guardianship who has regained capacity has the right to restoration.
While it is most common for a guardianship to end upon the death of the individual, in all
jurisdictions the court can terminate a guardianship upon finding that the individual has regained
capacity sufficient to manage his or her personal or financial affairs. In some cases the conditions
that interfere with capacity are temporary or the individual has responded to treatment. In other
cases additional evidence and the presence of a supportive environment may demonstrate that a
guardianship is unnecessary.
Unlike an appointment of a guardian, the statutory legal procedure for restoration is often unclear
and ambiguous. 3 The procedural process, as well and the duties of the court and of the guardian,
vary significantly by state, court, and judge. Due to the inconsistency among state statutes,
variations in practice, and lack of hard data on restoration proceedings, it is unclear whether
current guardianship law adequately protects an individual’s right to restoration.
This paper examines state statutory provisions concerning restoration of rights 4 in four areas: (1)
general procedure for restoration; (2) the evidentiary standard expressly provided for in the
statute; (3) the procedural barriers and safeguards in restoration proceedings; and (4) the role of
the guardian and of the court upon termination.
PROCEDURAL PROCESS IN A PETITION FOR RESTORATION
The UGPPA, revised by the National Conference of Commissioners on Uniform State Laws
(currently the Uniform Law Commission) in 1997, strongly supports the rights of the
incapacitated person. Under the Act, guardians must encourage the protected individual to work
towards regaining capacity. 5 The UGPPA has played a major role in the development of
1
Terms vary by state. In many states and the Uniform Guardianship and Protective Proceedings Act, a “guardian” makes decisions
about health care and personal affairs, and a “conservator” makes decisions about money and property. Other states use the terms
“guardian of the person” and “guardian of property” or “guardian of the estate,” Two states (CA and CT) use the term
“conservator” to refer to a decision-maker about an adult’s personal and/or financial affairs. The same person or entity could be
appointed as both guardian of the person and guardian of the property (conservator), or these roles could be filled by two
different people or entities. In this paper, unless otherwise indicated, the terms “guardian” and “guardianship” refer to decisionmaking about both personal and financial affairs.
2
Jennifer L. Wright, Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards in the USA, 33
Int’l J.L. & Psychiatry 350, 351 (2010).
3
Wright, supra note 2, at 351 (explaining that the petitioner must prove by clear and convincing evidence that: the respondent is
incapable of receiving and understanding relevant information and making decisions based on that information, that this
incapacity creates a risk to the well-being of the respondent, and that the proposed guardianship will improve, if not maximize,
the well-being of the ward).
4
While this paper focuses on termination of guardianships, the same principles apply to modification of guardianship. The same
procedure used for termination can be used in most cases to seek a modification of an existing guardianship, limiting the scope of
the order and enhancing self-determination.
5
U.G.P.P.A. Prefatory Note (Supp. 1999).
guardianship law throughout the United States. Since its enactment, 15 states have adopted the
official language or language substantially similar to the official UGPPA provisions concerning
restoration of rights. 6 Three states have provisions with similar language.
The primary issue before the court in a restoration proceeding is whether the protected individual
has capacity. All jurisdictions permit a petition for termination and restoration should a protected
individual regain capacity. The process for restoration, codified in the state statute, varies
greatly. A determination of capacity can be made only after an adjudication wherein the court
determines any change in circumstance and improvement in capacity of the individual. The
manner in which this is accomplished depends on the jurisdiction. In 18 jurisdictions and the
Uniform Guardianship and Protective Proceedings Act (UGPPA), the statute simply states that in
a petition for restoration and termination, the same procedures apply as in an appointment of a
guardianship. 7
Many states and the UGPPA require that a respondent seeking termination be afforded the same
rights and protections that are provided in the establishment of the guardianship. 8 Such rights
might include the right to notice, the right to personally attend hearings, the right to counsel or a
visitor or guardian ad litem, the right to cross-examine witnesses, and the right to appeal. 9 These
states include language similar to Nebraska’s statute that states, “If the court has reason to
believe that additional rights should be returned to the ward, the court shall set a date for a
hearing and may provide all protections as set forth for the original finding of incapacity and
appointment of a guardian.” 10
Most states provide very broad permission to the protected individual or any interested party to
seek restoration. Often, the only limitation in the statute is that such petition must be filed on
6
These fifteen states are: Alabama, Alaska, Arizona, Colorado, District of Columbia, Idaho, Massachusetts, Michigan,
Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Dakota, and Utah. Ala. Code § 26-2A-110; Alaska Stat. Ann.
§§ 13.26.120, 13.26.125; Ariz. Rev. Stat. Ann. § 14-5306- 14-5307; Colorado Revised Statutes Annotated §15-14-318; § D.C.
Code 21-2049; Idaho Code Ann. § 15-5-307; Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich. Comp. Laws Ann. § 700.5309;
Minn. Stat. Ann. § 524.5-317; Mont. Code Ann. § 72-5-325; Neb. Rev. Stat. § 30-2622- 30-2623; N.M. Stat. Ann. § 45-5-307;
N.D. Cent. Code Ann. § 30.1-28-07. (5-307); S.D. Codified Laws § 29A-5-508- 29A-5-509; Utah Code Ann. § 75-5-306- 75-5307.
7
These eighteen jurisdictions are: Alabama, Alaska, Arizona, Colorado, District of Columbia, Hawaii, Idaho, Louisiana,
Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah. Ala. Code
§ 26-2A-110; Alaska Stat. Ann. §§ 13.26.120, 13.26.125; Ariz. Rev. Stat. Ann. § 14-5306- 14-5307; Colorado Revised Statutes
Annotated §15-14-318; § D.C. Code 21-2049; Haw. Rev. Stat. §§ 560:5-112, 560:5-318; Idaho Code Ann. § 15-5-307; La. Code
Civ. Proc. Ann. Art 4554; Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich. Comp. Laws Ann. § 700.5306a(x)]; Minn. Stat. Ann.
§§ 524.5-112; 524.5-317; Mont. Code Ann. § 72-5-325; Neb. Rev. Stat. § 30-2623(c)]; N.M. Stat. Ann. § 45-5-307; N.D. Cent.
Code Ann. § 30.1-28-07. (5-307); Or. Rev. Stat. Ann. § 125.090; S.D. Codified Laws § 29A-5-508- 29A-5-509; Utah Code Ann.
§75-5-307(3); U.G.P.P.A. § 318(c) (1997).
8
These states are: Alabama, Alaska, Arizona, Colorado, District of Columbia, Hawaii, Idaho, Louisiana, Massachusetts,
Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, and Utah. Ala. Code § 26-2A110; Alaska Stat. Ann. §§ 13.26.120, 13.26.125; Ariz. Rev. Stat. Ann. § 14-5306- 14-5307; Colorado Revised Statutes Annotated
§15-14-318; § D.C. Code 21-2049; Haw. Rev. Stat. §§ 560:5-112, 560:5-318; Idaho Code Ann. § 15-5-307; La. Code Civ. Proc.
Ann. Art 4554; Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich. Comp. Laws Ann. § 700.5309; Minn. Stat. Ann. § 524.5-317;
Mont. Code Ann. § 72-5-325; Neb. Rev. Stat. § 30-2622- 30-2623; N.M. Stat. Ann. § 45-5-307; N.D. Cent. Code Ann. § 30.1-2807. (5-307); Or. Rev. Stat. Ann. § 125.090; S.D. Codified Laws § 29A-5-508- 29A-5-509; Utah Code Ann. § 75-5-306- 75-5307; Uniform Guardianship and Protective Proceedings Act § 318(c) (1997).
9
Guardian’s Rights and Responsibilities Series – Article 6: Objections to Guardianship; Changing Guardians; Terminating
Guardianship, Illinois Legal Aid, May 2006, http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentI
D=1605.
10
Neb. Rev. Stat. § 30-2628(6) (2011).
behalf of and in the best interest of the protected individual. Three states, Connecticut, Iowa, and
Wyoming, limit the authority to petition for restoration to the individual under guardianship. 11
New Jersey limits authority to the individual and the guardian. 12
Upon the filing of a petition for restoration, 13 the court will set a date for a hearing on the issue
of capacity, pursuant to the state’s requirements. Some courts conduct a hearing immediately
upon filing, so long as they find sufficient cause to warrant further proceedings. Other courts
schedule a hearing only after it recieves a medical examination report from a court-appointed
expert. Notice of the hearing is given to the guardian and the protected individual, and to other
interested parties as required by the statute.
After the hearing, the court may restore the individual’s rights and terminate the guardianship if
the burden of proof for capacity is met and the court deems restoration to be appropriate. The
adjudication of restoration is grounds for terminating the guardianship. 14 The discharge of the
guardian ends all rights and responsibilities of the guardianship, except for those involved in the
winding up of the guardianship.
EVIDENTIARY STANDARD
The evidence considered in a guardianship hearing depends upon the guardianship laws of the
state. The petitioner has the burden to show that the protected individual has capacity to manage
personal or financial affairs such that guardianship is no longer necessary. 15 The burden then
shifts to the party opposing restoration to prove the continuation of incapacity. Unlike in a
petition for appointment of a guardian where the burden of proof is generally clear and
convincing evidence, the standard in termination proceedings varies greatly and is often unclear.
Under the UGPPA, once the petitioner establishes a prima facie case for termination the court
shall order the termination unless the opposing party establishes by clear and convincing
evidence that continuation of the guardianship is in the best interest of the protected individual. 16
The lower evidentiary standard of prima facie evidence for termination, as compared with the
standard in an appointment for guardianship, is consistent with the Act’s philosophy that a
guardian should be appointed only for as long as necessary. In determining “best interest,” every
effort should be made to determine the individual’s personal values and desires. 17
Only two states, Minnesota and Maine, have adopted the UGPPA’s prima facie evidentiary
standard for restoration. Minnesota courts have interpreted this to mean evidence showing that
11
Conn. Gen. Stat. Ann. § 45a-660(a)(1); Iowa Code Ann. § 633.679(1); Wyo. Stat. Ann. § 3-3-1105(a) (stating that “At any
time, not less than six (6) months after the appointment of a guardian or conservator, the individual may petition the court
alleging that he is no longer a proper subject of the guardianship or conservatorship and asking that the guardianship or
conservatorship be terminated).
12
N.J. Stat. Ann. § 3B:12-28.
13
This is also possible upon the court’s ruling sua sponte, although this is rare.
14
State ex rel. Nat. Bank of Commerce of Seattle v. Frater, 18 Wash. 2d 546, 140 P.2d 272 (Wash. 1943).
15
Ramirez v. Garcia de Bretado, 547 S.W.2d 717 (Tex. App. 1977); Harris v. Johnson, 149 Ind. App. 512, 273 N.E.2d 779 (Ind.
Ct. App. 1971).
16
U.G.P.P.A. §§ 318(c), 431(d) (1997).
17
U.G.P.P.A. § 318 cmt. (1997).
the proof the guardianship was needed is no longer applicable. 18 In Maine, once a petitioner
establishes a prima facie case that the individual has capacity, the burden shifts to the respondent
to prove incapacity by clear and convincing evidence.” 19 Seven states require the petitioner to
prove by a preponderance of the evidence that the individual has sufficient capacity to manage
his or her own affairs. 20 Eight states use the higher standard of clear and convincing evidence. 21
Mississippi requires “such proof as the chancellor may deem sufficient.” 22
Thirty-three states do not provide a specific evidentiary standard. 23 There is little case law in the
area of restoration and it is not entirely clear what standard of proof should apply. Courts have
taken different approaches. A circuit court case in Florida suggests that the standard is a
preponderance of the evidence. 24 Cases in Ohio have found that the evidence presented need not
be clear and convincing but need only ensure that the guardian’s removal will serve the ward’s
best interests. 25 New Jersey cases suggest that the burden be clear and convincing. 26
Rhode Island does not set out an evidentiary standard. Rather, it requires the court to remove any
guardian upon finding that the ward, based on a decision-making assessment tool directly in the
statute, has the capacity to make decisions regarding his or her personal affairs. 27 The functional
assessment tool is an all-encompassing evaluation of the individual’s medical status, social
assessment, mobility, social network, and financial matters to ease the court’s decision-making
regarding capacity.
18
Minn. Stat. Ann. § 524.5-317 (2009); In re Guardianship of the Person of Meyer, 2010 WL 3463710 (Minn. App. 2010); Me.
Rev. Stat. tit. 18-A, § 5-307(d) (2009).
19
Me. Rev. Stat. tit. 18-A, § 5-307(d) (2009).
20
These seven states are: Connecticut, Georgia, Louisiana, Missouri, North Carolina, Texas, and Virginia. Conn. Gen. Stat. Ann.
§ 45a-660; Haw Ga. Code Ann. § 29-4-42; La. Code Civ. Proc. Ann. Art 4554; Mo. Ann. Stat. § 475.083; N.C. Gen. Stat. Ann. §
35A-1130; Tex. Prob. Code Ann. § 694; Va. Code Ann. § 64.2-2012.
21
These eight states are: Hawaii, Illinois, Iowa, Kansas, Nevada, Ohio, Oregon, and Pennsylvania. Rev. Stat. §§ 560:5-112;
560:5-318; Illinois St. Ch. § 5/11a-20; Iowa Code Ann. § 633.675; Kan. Stat. Ann. §59-3090- 59-3091; Nev. Rev. Stat. Ann. §§
159.1905, 159.191; Ohio Rev. Code Ann. § 2111.47; Or. Rev. Stat. Ann. § 125.090; 20 Pa. Cons. Stat. Ann. § 5517.
22
Miss. Code. Ann. § 93-13-125.
23
The thirty three states that don’t state an evidentiary standard are: Alabama, Alaska, Arizona, Arkansas, California, Colorado,
Delaware, District of Columbia, Florida, Idaho, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Montana, Nebraska,
New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota,
Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming. Ala. Code § 26-2A-110; Alaska Stat. Ann. §§
13.26.120, 13.26.125; Ariz. Rev. Stat. Ann. § 14-5306-14-5307; Ark. Code Ann. § 28-65-401- 28-65-402; Cal. Probate Code
1863(b); Colorado Revised Statutes Annotated §15-14-318; Delaware Code Ann. tit. 12 § 3908; D.C. Code 21-2049; Fla. Stat.
Ann. §§ 744.464(3), 744.521; Idaho Code Ann. § 15-5-307; Ind. Code Ann. § 29-3-12-1; Ky. Rev. Stat. Ann. § 387.620; Md.
Code Ann., Est. & Trusts § 13-220; Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich. Comp. Laws Ann. § 700.5309; Mont. Code
Ann. § 72-5-325; Neb. Rev. Stat. § 30-2622- 30-2623; N.H. Rev. Stat. Ann. § 464-A:40; N.J. Stat. Ann. § 3B:12-28; N.M. Stat.
Ann. § 45-5-307; N.Y. Mental Hyg. Law § 81.36; N.D. Cent. Code Ann. § 30.1-28-07. (5-307); Okla. Stat. Ann. tit. 30, § 3-116;
R.I. Gen. Laws Ann. § 33-15-18; S.C. Code Ann. § 62-5-306; S.D. Codified Laws § 29A-5-508- 29A-5-509; Tenn. Code Ann. §
34-3-108; Utah Code Ann. § 75-5-306- 75-5-307; Vt. Stat. Ann. tit. 14, § 3077; Wash. Rev. Code Ann. § 11.88.120; W. Va.
Code Ann. § 44A-4-7; Wis. Stat. Ann. § 54.64; Wyo. Stat. Ann. § 3-3-1101.
24
In re Guardianship of Branch, 10 FLW Supp. 23, 25 (2nd Cir. 2002) (citing Beal Bank, SSB v. Almand & Associates, 780 So.
2d 45 (Fla. 2001) (establishing the presumptions and burden of proof required by banks to execute on accounts titled in the name
of husband and wife who claimed the accounts were held as tenants by the entirety and therefore not subject to execution by the
husbands judgment creditors).
25
In re Guardianship of Escola, 41 Ohio App. 3d 42, 44, 534 N.E. 2d 866 (Ohio Ct. App. 1987).
26
In re Rollins, 65 A.2d 667 (Mercer County Ct. 1949); In re Hazeltine, 119 N.J.Eq. 308, 182 A. 357 (N.J. Super. Ct. App. Div.
1936)
27
See R.I. Gen Laws Ann. § 33-15-18 (2007).
In states without an express burden of proof, courts may simply use the same evidentiary
standard as is used in a petition for guardianship, which is generally the high standard of clear
and convincing evidence. But there is no research to substantiate this. Courts may be more
inclined to use the same evidentiary standard when the statute expressly requires the court to
follow the same procedural standards as in a petition for guardianship. Of the 18 states that
require the court to follow the same procedural standards as in a petition for guardianship, only
four expressly state an evidentiary burden of proof. 28 Minnesota requires prima facie, 29 Hawaii
and Oregon require clear and convincing evidence after the petitioner establishes a prima facie
case for termination, 30 and Louisiana’s standard is a preponderance of the evidence. 31 The
remaining 13 states that require the same procedures as in a petition for guardianship do not state
an evidentiary standard. 32 The legislative intent is unclear.
In spite of the variation and ambiguity, it is clear that at least eight states require courts to use a
lesser burden of proof (either prima facie or preponderance of the evidence) in a petition for
termination than in an initial petition for guardianship. There is no research to determine whether
courts in these states may grant restoration more frequently. Due to the nature of the issues and
the presumptions to be overcome, codifying an evidentiary standard can be an additional tool for
states to protect the autonomy of the protected individual.
MORITORIUM PERIODS ON FILING REQUESTS FOR REVIEW
States may enact procedural bars to petitions for restoration. Eleven states permit courts to
specify a minimum time period after the issue of the order adjudicating incapacity during which
a petition for a review of the order may not be filed without special leave. 33 Of these states, eight
require that the period not exceed one year, two require that it not exceed six months, and one
state, Michigan, sets the maximum period at 182 days. While this may reduce frivolous and hasty
attempts to remove a guardian, it could at the same time delay legitimate petitions for removal
and restoration of rights.
Four states specify a period during which a petition for reconsideration of a determination of
incapacity cannot be filed, regardless of what the original order says. 34 Arizona precludes an
interested person, other than the guardian or protected individual, from filing such a petition
28
These four states are: Minnesota, Hawaii, Oregon, and Louisiana. Minn. Stat. Ann. § 524.5-317; Haw. Rev. Stat. §§ 560:5-112,
560:5-318; Or. Rev. Stat. Ann. § 125.090; La. Code Civ. Proc. Ann. Art 4554.
29
Minn. Stat. Ann. § 524.5-317.
30
Haw. Rev. Stat. §§ 560:5-112, 560:5-318; Or. Rev. Stat. Ann. § 125.090.
31
La. Code Civ. Proc. Ann. Art 4554.
32
These thirteen states are: Alabama, Alaska, Arizona, Colorado, District of Columbia, Idaho, Massachusetts, Montana,
Nebraska, New Mexico, North Dakota, South Dakota, and Utah. Ala. Code § 26-2A-110; Alaska Stat. Ann. §§
13.26.120,13.26.125; Ariz. Rev. Stat. Ann. § 14-5306-14-5307; Colorado Revised Statutes Annotated §15-14-318; § D.C. Code
21-2049; Idaho Code Ann. § 15-5-307; Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mont. Code Ann. § 72-5-325; Neb. Rev. Stat.
§§ 30-2622, 30-2623; N.M. Stat. Ann. § 45-5-307; N.D. Cent. Code Ann. § 30.1-28-07. (5-307); S.D. Codified Laws §§ 29A-5508- 29A-5-509; Utah Code Ann. § 75-5-306- 75-5-307.
33
These eleven states are: Alabama, Hawaii, Idaho, Indiana, Massachusetts, Michigan, Montana, Nebraska, New Hampshire,
South Carolina, and Utah. Ala. Code § 26-2A-110; Haw. Rev. Stat. §§ 560:5-112, 560:5-318; Idaho Code Ann. § 15-5-307; Ind.
Code Ann. § 29-3-12-1; Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich. Comp. Laws Ann. § 700.5309; Mont. Code Ann. § 725-325; Neb. Rev. Stat. § 30-2622- 30-2623; N.H. Rev. Stat. Ann. § 464-A:40; S.C. Code Ann. § 62-5-306; Utah Code Ann. § 755-306- 75-5-307.
34
These four states are: Arizona, Iowa, Texas, and Wyoming. Ariz. Rev. Stat. Ann. § 14-5306- 14-5307; Iowa Code Ann. §
633.675; Tex. Prob. Code Ann. § 694; Wyo. Stat. Ann. § 3-3-1101.
within one year of the order adjudicating incapacity unless the court believes that the individual
is no longer incapacitated. 35 Texas expands the one-year period to apply to any person. 36 Iowa
and Wyoming preclude the filing of any petition for termination within six months of the denial
of a former petition for termination. 37 Other states don’t place any limitations on the time in
which a petitioner may file a request for restoration. For example, California permits the
guardian to petition the court at any time for a hearing to challenge the guardianship on the basis
that he or she no longer meets the legal criteria. 38
PROCEDURAL SAFEGUARDS
As a practical matter, the only way an individual can end a guardianship against the wishes of the
guardian is by initiating a contested court proceeding. 39 Under the UGPPA and in similar
jurisdictions, once a guardian has been appointed, the court will ordinarily act only if a moving
party so requests. 40 Twenty states and the UGPPA expressly permit the petitioner to informally
communicate a request for restoration instead of filing a formal application. 41 Individuals need
not secure counsel to file an informal petition. This makes the judicial process more accessible
by reducing procedural barriers to filing, such as cost and time, which may deter interested
parties from taking action. 42 However, it would be critical for the individual to secure counsel
should the petition proceed further. 43 As an additional safeguard, 17 states expressly bar willful
interference with a request for restoration to the court. 44 The court may hold any person who
knowingly interferes with the transmission to be in contempt of court. This reflects certain
guardianship policy to promote open lines of communication directly between the court and the
protected individual.
Colorado specifically targets the guardian, stating that the fiduciary shall not take an active role
opposing or interfering with a proceeding for restoration initiated by the protected individual. 45
35
Ariz. Rev. Stat. Ann. § 14-5307(C) (2012).
See Tex. Prob. Code Ann. § 694A(e) (2005).
37
See Iowa Code Ann. § 633.680 (1963); Wyo. Stat. Ann. § 3-3-1105 (1977).
38
Cal. Probate Code § 1850
39
Cavey, supra note 40, at 29.
40
U.G.G.P.A. § 414(1997).
41
These twenty states are: Alabama, Alaska, Arizona, District of Columbia, Idaho, Illinois, Indiana, Kentucky, Maine,
Massachusetts, Michigan, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, South Carolina, Tennessee, Texas,
and Utah. Ala. Code § 26-2A-110; Alaska Stat. Ann. §§ 13.26.120, 13.26.125; Ariz. Rev. Stat. Ann. § 14-5306- 14-5307; § D.C.
Code 21-2049; Idaho Code Ann. § 15-5-307; Illinois St. Ch. § 5/11a-20; Ind. Code Ann. § 29-3-12-1; Ky. Rev. Stat. Ann. §
387.620; Me. Rev. Stat. tit. 18-A, § 5-307(d); Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich. Comp. Laws Ann. § 700.5309;
Mont. Code Ann. § 72-5-325; Neb. Rev. Stat. § 30-2622-§30-2623; N.H. Rev. Stat. Ann. § 464-A:40; N.M. Stat. Ann. § 45-5307; N.D. Cent. Code Ann. § 30.1-28-07. (5-307); S.C. Code Ann. § 62-5-306; Tenn. Code Ann. § 34-3-108; Tex. Prob. Code
Ann. § 694; Utah Code Ann. § 75-5-306- 75-5-307; U.G.G.P.A. § 318 cmt. (1997).
42
Mary Joy Quinn & Howard S. Krooks, The Relationship Between the Guardian and the Court, 2012 Utah L. Rev. 1611, 1638
(2012).
43
See Patricia M. Cavey, Realizing the Right to Counsel in Guardianship: Dispelling Guardianship Myths, 2 Marq. Elder’s
Advisor 5 (2000).
44
These seventeen states are: Alabama, Alaska, Arizona, District of Columbia, Idaho, Indiana, Maine, Massachusetts, Michigan,
Montana, Nebraska, New Hampshire, New Mexico, North Dakota, South Carolina, Texas, and Utah. Ala. Code § 26-2A-110;
Alaska Stat. Ann. §§ 13.26.120, 13.26.125; Ariz. Rev. Stat. Ann. § 14-5306- 14-5307; § D.C. Code 21-2049; Idaho Code Ann. §
15-5-307; Ind. Code Ann. § 29-3-12-1; Me. Rev. Stat. tit. 18-A, § 5-307(d); Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich.
Comp. Laws Ann. § 700.5309; Mont. Code Ann. § 72-5-325; Neb. Rev. Stat. § 30-2622- 30-2623; N.H. Rev. Stat. Ann. § 464A:40; N.M. Stat. Ann. § 45-5-307; N.D. Cent. Code Ann. § 30.1-28-07. (5-307); S.C. Code Ann. § 62-5-306; Tex. Prob. Code
Ann. § 694; Utah Code Ann. § 75-5-306- 75-5-307.
45
See Colorado Revised Statutes Annotated § 15-14-318(3.5)(c).
36
However, the guardian may file a report on matters relevant to the termination proceeding, and
may file a motion for instructions regarding the appointment of an attorney or visitor,
investigations to be conducted, and the guardian’s involvement in the proceedings. 46 The
UGPPA does not contain a similar provision.
These procedural safeguards – permitting informal requests for restoration and sanctions for
interference with such requests – increase accessibility to the judicial process independent of the
guardian. Seventeen states have codified both protections. 47 Thirty-one statutes do not include
either protection. 48 This high number may cause concern because, “the relationship between the
guardian and the court is generally seen as a critical partnership that supports the incapacitated
person who cannot support himself.” 49 However, general statutory provisions requiring
guardians to act in the best interest of the individual and the common law likely apply in this
context. The common law impliedly allows a guardian to oppose a petition for restoration so
long as the guardian acts reasonably and in good faith. 50 It recognizes that opposing a motion for
restoration does not necessarily create a conflict of interest. 51 The guardian’s general duty of
loyalty to the protected individual may require the guardian to oppose a petition for restoration
where it is clear the individual has not regained capacity. 52
Following appointment of a guardian, courts have an on-going responsibility to ensure that the
terms of the order remain consistent with the respondent’s needs and conditions. 53 Due to
possible changes in capacity, periodic assessment of capacity is necessary to determine whether
guardianship is still necessary. Courts generally receive annual guardianship reports with updates
of the protected individual’s condition, and can often impose additional requirements on the
guardian to provide more frequent or more detailed reports. 54 Submitting an annual report forces
the guardian to stop and think directly about the often elusive issue of the individual’s capacity.
46
See id. § 15-14-318(3.5)(a).
The seventeen states that contain both provisions are: Alabama, Alaska, Arizona, District of Columbia, Idaho, Illinois, Indiana,
Maine, Massachusetts, Michigan, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, South Carolina, Texas, and
Utah. Ala. Code § 26-2A-110; Alaska Stat. Ann. §§ 13.26.120, 13.26.125; Ariz. Rev. Stat. Ann. § 14-5306- 14-5307; § D.C.
Code 21-2049; Idaho Code Ann. § 15-5-307; Illinois St. Ch. § 5/11a-20; Ind. Code Ann. § 29-3-12-1; Me. Rev. Stat. tit. 18-A, §
5-307(d); Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich. Comp. Laws Ann. § 700.5309; Mont. Code Ann. § 72-5-325; Neb.
Rev. Stat. § 30-2622- 30-2623; N.H. Rev. Stat. Ann. § 464-A:40; N.M. Stat. Ann. § 45-5-307; N.D. Cent. Code Ann. § 30.1-2807. (5-307); S.C. Code Ann. § 62-5-306; Tex. Prob. Code Ann. § 694; Utah Code Ann. § 75-5-306- §75-5-307.
48
These thirty one states are: Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Iowa, Kansas,
Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Dakota, Vermont,
Virginia, Washington, West Virginia, Wisconsin, and
Wyoming. Ark. Code Ann. § 28-65-401, 28-65-402; Cal. Probate Code 1863(b); Colorado Revised Statutes Annotated §15-14318; Conn. Gen. Stat. Ann. § 45a-660; Delaware Code Ann. tit. 12 § 3908; Fla. Stat. Ann. §§ 744.464(3), 744.521; Ga. Code
Ann. § 29-4-42; Haw. Rev. Stat. §§ 560:5-112, 560:5-318; Iowa Code Ann. § 633.675; Kan. Stat. Ann. § 59-3090- 59-3091; La.
Code Civ. Proc. Ann. Art 4554; Md. Code Ann., Est. & Trusts § 13-220; Minn. Stat. Ann. § 524.5-317; Miss. Code. Ann. § 9313-125; Mo. Ann. Stat. § 475.083; Nev. Rev. Stat. Ann. §§ 159.1905, 159.191; N.J. Stat. Ann. § 3B:12-28; N.Y. Mental Hyg.
Law § 81.36; N.C. Gen. Stat. Ann. § 35A-1130; Ohio Rev. Code Ann. § 2111.47; Okla. Stat. Ann. tit. 30, § 3-116; Or. Rev. Stat.
Ann. § 125.090; 20 Pa. Cons. Stat. Ann. § 5517; R.I. Gen. Laws Ann. § 33-15-18; S.D. Codified Laws § 29A-5-508- 29A-5-509;
Vt. Stat. Ann. tit. 14, § 3077; Va. Code Ann. § 64.2-2012; Wash. Rev. Code Ann. § 11.88.120; W. Va. Code Ann. § 44A-4-7;
Wis. Stat. Ann. § 54.64; Wyo. Stat. Ann. § 3-3-1101.
49
Quinn & Krooks, supra note 39, at 1621.
50
See Estate of Keenan v. Colorado State Bank & Trust, 252 P.3rd 539 (Colo. App. 2011).
51
Id.
52
See id.
53
Report, Richard Van Duizend, National Probate Court Standards, National Center for State Courts (2013).
54
Reporting Requirements, Center for Elders and the Court, http://www.eldersandcourts.org/Guardianship/Guard ianshipMonitoring.aspx (last visited July 2, 2013).
47
It can also be an opportunity for discussion and input from the protected individual and
interested parties about the continued need for guardianship.
Three states, Connecticut, Missouri, and New Mexico, require the court itself to periodically
analyze whether the individual’s circumstances have changed sufficiently to justify termination
of the guardianship and restoration of rights. 55 Connecticut requires the court to conduct a review
“not later than one year after the conservatorship was ordered and not less than every three years
after such initial one-year review.” 56 Missouri requires that that court inquire into the status of
every protected individual at least annually, to determine whether the incapacity may have
ceased. 57 New Mexico requires the court to hold a status hearing to review the continued need
for a guardian “at any time following the appointment of a guardian, but not later than ten years
after the initial appointment of a guardian for a protected person and every ten years
thereafter.” 58 These states provide additional oversight to the protected individual because the
mental capacity of the individual is periodically and regularly assessed by the court, regardless of
whether a petition for restoration is filed.
DUTIES OF THE GUARDIAN AND RIGHTS OF THE INDIVIDUAL
The authority and responsibility of a guardian terminates when the individual’s rights are
restored. 59 Generally, in a termination proceeding the guardian must submit a final report of the
individual’s status and actions taken on his or her behalf, as well as a final accounting of the
estate assets for the court’s review and approval. 60 While states require a periodic status report
from the guardian, some statutes impose additional reporting duties upon a change in the
individual’s capacity.
Three states expressly require the guardian to immediately notify the court if the incapacitated
individual’s condition has changed. 61 This is consistent with existing standards that call attention
to a guardian’s duty to report to the court should a change in capacity occur. 62 The UGPPA states
that, “the guardian shall immediately notify the court if the ward’s condition has changed so that
the individual is capable of exercising rights previously removed. 63 The National Guardianship
Association Standards of Practice requires the guardian to “promptly inform the court of any
change in the capacity of the person that warrants a restriction of the guardian’s authority.” 64
55
These three states are: Connecticut, Missouri, and New Mexico. Conn. Gen. Stat. Ann. § 45a-660; Mo. Ann. Stat. § 475.083;
N.M. Stat. Ann. § 45-5-307.
56
Conn. Gen. Stat. Ann. § 45a-660(c) (2007).
57
Mo. Ann. Stat. § 475.082(1) (1985).
58
N.M. Stat. Ann. § 45-5-307(G) (2009).
59
Except for filing final reports, accounting, turning over assets, and other final duties required by law in the wrapping up of the
guardianship. See Uniform Guardianship and Protective Proceedings Act §§ 318; 431 (1997); A Texas Guide to Adult
Guardianship, The Texas Department of Aging and Disability Services, DADS Media Services 11P372, April 2011, at 30,
available at http://www.dads.state.tx.us/news_info/publications/brochures/pu b395-guardianship.pdf.
60
See supra note 41 at p. 81.
61
These three states are: Colorado, Oklahoma, and Wyoming. Colorado Revised Statutes Annotated §15-14-318; Okla. Stat.
Ann. tit. 30, § 3-118(C); Wyo. Stat. Ann. § 3-2-201(xi)].
62
These standards include the National Probate Court Standards (NPCS), the Uniform Guardianship and Protective Proceedings
Act (UGPPA), and the National Guardianship Association Standards of Practice (NGA).
63
U.G.P.P.A. § 314(b)(5) (1997).
64
The 2011 Third National Guardianship Summit, comprised of ten National Guardianship Network organizations, developed
new standards which are incorporated into the 2013 edition of the NGA Standards of Practice for Guardians; NGA Standards of
Practice for Guardians, Standard No. 1.4 (Third Nat’l Guardianship Summit: Standards of Excellence 2011).
Similarly, Rule 6 of The Model Code of Ethics for Guardians states that, “the guardian has an
affirmative obligation to seek termination or limitation of the guardianship whenever indicated. 65
(Emphasis added). The Rule also states that, “the guardian shall diligently seek out information
which will provide a basis for termination or limitation of the guardianship,” and shall promptly
notify the court upon any indication that termination is warranted. 66 While The Model Code and
The National Guardianship Standards of Practice are not law, they are in line with the policy of
guardianship law to protect the interest of the individual and work towards the regaining of
capacity.
Only three states have codified the right to restoration at the earliest possible time. Florida,
Georgia, and Michigan expressly state that the individual has the right to have their autonomy
and rights restored at the earliest possible time. 67 This begs the question: What is the “earliest
possible time”? And what do courts do in practice to determine the earliest possible time? There
is little data or literature to provide an easy answer.
CONCLUSION
This statutory review is an initial examination of current state law on restoration of rights in the
termination of adult guardianships. There are many unknowns, including the number of petitions
for restoration that are filed in each jurisdiction and the number of petitions granted. In light of
the findings in this paper, there is a compelling need for additional research and data collection
to determine which state practices adequately protect the individual’s right to restoration.
Eighteen states and the UGPPA apply the same procedures used in an appointment of a guardian
to a petition for termination and restoration. In these states, the barriers to establishing a
guardianship are equally as challenging to overcome in restoring rights to an individual who has
regained capacity. Adults with capacity are constitutionally guaranteed certain fundamental
rights yet only three states expressly state that the protected individual has the right to be restored
at the earliest possible time.
All but three states provide broad permission for any interested party to petition for restoration,
yet states vary as to the burden of proof that the petitioner must meet. Depending on the level of
burden, the evidentiary standard acts as either a barrier to restoration or a guard to protect the
right to restoration. Two states and the UGPPA require the relatively low standard of prima facie
evidence. Seven states use a preponderance of the evidence standard, and eight states use the
higher standard of clear and convincing evidence. Thirty three states do not expressly provide an
evidentiary standard, leaving courts to determine the adequacy of evidence and the appropriate
bars to restoration.
It’s unclear whether more restorations occur in states that codify detailed restoration procedure
and protections. Twenty states and the UGPPA permit an informal request for restoration.
Seventeen states permit the court to hold any person who knowingly interferes with a petition for
restoration to be held in contempt of court. Thirty one states do not include either protection.
Further, it is unknown whether in practice such detailed procedural requirements lead to more
65
Model Code of Ethics for Guardians Rule 6 (1988).
Id. Rule 6.1, Rule 6.2
67
Fla. Stat. Ann §744.3215; Ga. Code Ann. § 29-4-20(A)(7); 7 Mich. Comp. Laws Ann. § 00.5306a(ee).
66
petitions for restoration. A second phase of this study, including a restoration case law summary
and intensive reviews of probate court procedure in jurisdictions with exemplary practices, is
necessary to document and articulate restoration practices for replication across the United
States.