The practice of appointing a legal guardian to manage the affairs – and sometimes the daily lives – of vulnerable adults has become highly controversial. Stories of greed and abuse of those under the so-called care of court-appointed guardians has drawn fire from legal and political leaders nationwide.
Now the American Bar Association has weighed in. According to this recent report from Bloomberg Law, the ABA recently issued an opinion advising its 400,000 members to avoid seeking legal guardianships if other means can be found to provide care for those who need it. The Association called guardianships “a serious deprivation of a client’s rights” and made it clear that the practice should be approached with extreme caution.
Reporter Sam Skolnik wrote the Bloomberg Law article. Let’s look at what he had to say.
Avoid Guardianships in Favor of “Less Drastic” Solutions
Skolnik writes, “Lawyers who represent elderly and intellectually disabled clients must not seek legal guardianships if ‘less drastic’ solutions can be found, the American Bar Association said in a new ethics opinion.” The ABA opinion was released earlier in September.
“The appointment of a guardian is a serious deprivation of the client’s rights and should not be pursued if less restrictive measures are available,” the ABA opinion stated. “Even where the appointment of a guardian is the only appropriate alternative, that course, too, has degrees of restriction.”
A Burst of Legal Action at State and National Level
According to Blomberg Law, this has been a busy year when it comes to legal review of the practice of guardianships. Back in February, the ABA issued a statement revising the rules of professional conduct governing how attorneys represent clients who have decision-making challenges.
“A lawyer shall, as far as reasonably possible, maintain an ordinary client-lawyer relationship with a client with decision-making limitations,” the February ABA opinion stated, “including when the client’s decision-making limitations impact the client’s ability to provide direction to the lawyer or make reasoned, informed choices.”
This in turn triggered action by several states — including Michigan, Illinois, and Florida — to change rules to protect vulnerable clients. Bloomberg Law wrote about these state-by-state actions last June. “Several states are weighing an ABA-led push to encourage attorneys handling intellectually disabled and elderly clients to consider alternatives to legal guardianships,” the article said at the time.
System is Plagues by Greed, Lack of Oversight
As reporter Skolnik explains, “The guardianship system has been subject to chronic complaints and is often described as rife with abuse.” We are covering many of these issues in companion articles this week on the Blog.
Skolnik adds, “A growing consensus in the legal community has urged that guardianship be used as a last resort, and that lawyers be better prepared to handle protecting rights of clients with decision-making difficulties.”
Keeping an Ordinary Relationship with Clients is “Primary Obligation”
As Skolnik’s article makes clear, lawyers and judges should not be able to place vulnerable clients into guardianships so that their needs can be ignored and their rights subverted.
“The ‘primary obligation’ when representing such clients is to maintain an ordinary client-lawyer relationship ‘as much as reasonably possible under the circumstances,’” Skolnik writes, quoting the recent American Bar Association opinion.
The Onus is on the Attorney to Communicate Clearly
For clients having “diminished capacity,” according to the ABA, the lawyer is responsible for determining the client’s “decision-making limitations.” The attorney must then evaluate whether to use “plain language” or otherwise modify their communications or counseling techniques, the ABA said.
Treating the client with dignity is paramount, the ABA cautions. “The lawyer should continue to treat the client with attention and respect, attempt to communicate and discuss relevant matters, and continue as far as reasonably possible to act consistent with the client’s directions and decisions,” the opinion says.
Maintaining the Right of Clients to Communicate in Private
One of the chief complaints triggered by guardianships, experts say, is that vulnerable adults are too easily isolated. The ABA opinion seeks to correct this, at least insofar as legal representation is concerned.
Skolnik writes, “Lawyers also need to make sure clients can communicate privately with them without others present, and seek informed consent from the client if they wish to have a family member or other third-party present in a meeting with the attorney.”
“Protective Action” is Permitted, but Only for Client Protection
The ABA opinion does appear to acknowledge that traditional guardianships may at times be in a vulnerable individual’s best interests. But the rationale must be crystal clear.
Skolnik writes, “Some form of ‘protective action’ outside of the normal attorney-client relationship is permitted, the opinion says, when the client has decision-making limitations, they’re at risk of ‘substantial physical, financial or other harm unless action is taken,’ and they can’t ‘adequately act’ in their own interest to address the risk.”
However, the article warns, protection of the client must be the governing purpose.
“It is not for the convenience of the lawyer or others,” the opinions says. The Bloomberg Law article cautions lawyers that they “must be able to articulate [that guardianship is] the least restrictive option under the circumstances.”
A Few Salient Quotes from the ABA Opinion
We looked over the 1o-page opinion from the American Bar Association and pulled out these relevant quotes governing how attorneys and vulnerable clients should interact. These statements have been slightly edited for length.
Protecting the Client-Lawyer Relationship: “The lawyer must always bear in mind that the client with decision-making limitations is entitled to all the protections of the client-lawyer relationship, including abiding by the client’s objectives regarding representation. The lawyer should continue to treat the client with attention and respect, attempt to communicate and discuss relevant matters, and continue as far as reasonably possible to act consistent with the client’s directions and decisions.”
Power of Attorney: “Even if the client has given an agent authority to make decisions through an instrument such as a power of attorney, it’s incumbent on the lawyer to take direction from and maintain communications with the client to the extent feasible unless the client has directed otherwise or is unable to give direction.”
When Dealing with a Guardian: “The lawyer should ordinarily look to the guardian for decisions that the guardian has legal authority to make, nonetheless keeping in mind that the lawyer should also continue to respect the client’s reasonable objectives in carrying out the representation. This representation encourages the lawyer to consult directly and represent a client who wishes to challenge the conditions of a guardianship or revoke a decision-making instrument. In such situations the lawyer should look directly to the client for direction.”
When a Client Requires Legal Protection: “The lawyer may take reasonably necessary protective action if the client is at risk of substantial physical, financial or other harm unless action is taken. The action taken should be the least restrictive of the client’s autonomy that will yet adequately protect the client.”
**Guardianship Requires Due Diligence: “**The lawyer may recommend or support the appointment of a particular person or other entity as guardian, provided the lawyer has made reasonable inquiry as to the suggested guardian’s fitness. In all aspects of the proceedings, the lawyer’s duty of candor to the court requires disclosure of pertinent facts, including the client’s wishes.”
Attorneys Urged to Remain Involved: “Withdrawal from representation of a client with decision-making limitations is disfavored, even if ethically permissible under the circumstances.”
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