Abstract

An overwhelming majority of state laws governing adult guardianship require an inquiry into whether less restrictive alternatives may be available/appropriate and, where guardianship is necessary, that guardianship orders be designed to maximize theindependence of the person subject to the guardianship. However, the best available data indicates that most guardianship orders are plenary," removing rights on a wholesale basis rather than individually tailoring the guardianship. To many observers, the imposition of plenary guardianship contradicts the unambiguous statutory language in most states favoring a tailored approach that implements guardianships to maximize an individual's independence and autonomy.

The literature is rife with examples and critiques of the overuse of plenary orders, and other articles have focused on the need to limit or tailor guardianship to address the functional capacity of the person who is purportedly in need of protection and assistance. The purpose of this article is to identify, examine, and better understand existing legal and practical barriers to limited guardianship and to explore and recommend possible alternatives. It falls into the broad category of a second-generation gap study; in that it seeks to "compare law in action with the perceived objectives of law on the books." The article will first provide a framework for the language of guardianship and then discuss current statutory and case law governing limited guardianship and will address attendant legal barriers. Next, the article will review the data on actual practice and explore the reasons for the gap between law and practice and the feasibility of tailoring guardianship orders. Finally, the article will recommend extrajudicial alternatives to achieve the goal of maximizing independence for adults who need assistance with personal and financial decision making.

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