Legally Alone: The Redeemability of Guardianship and Recommendations Toward Equitable Access

Hecker, Patrick | April 1, 2023

American adult guardianship needs reform. Thankfully, there is a small but dedicated reform movement that sheds helpful light on problems of underfunding, inattention, and abuse. While the movement’s efforts are needed, this Note argues it is a mistake to focus solely on the ways the guardianship system is sometimes harmful to people who already have access to guardianship. Few reformers consider the needs of people who would benefit from a guardian but do not have anyone to petition the court on their behalf. This Note first argues that guardianship, despite its detractors, is redeemable. It can be part of a beneficial legal response to the problems of mass-incapacity and loneliness in America. This is especially true for the unbefriended and incapacitated population living in long-term care facilities—a frequently mistreated population. Second, the Note describes how the current legal structure surrounding public guardianship creates a market failure that incentivizes long-term care facilities to petition the wrong residents—residents who would benefit from alternative arrangements. Medicaid billing regulations, expenses related to the petitioning process, and the state of many public guardianship programs all contribute to the market failure. This leaves the unbefriended and incapacitated population without the benefits of a reformed guardianship system and exposes residents who would benefit from alternatives to abuse. The Note closes with recommendations on how to reform the incentive structure to create a cost-neutral petitioning process and a more humane and caring public guardianship service.