Guardianship in a Caring Society
By Hon. Scott Harshbarger
Former Attorney General for the Commonwealth of Massachusetts
“Guardianship” today means both less and more than it has in the past. Less, because we now understand that decisional support is a spectrum: one size does not fit all, and informal supportive relationships with friends, family and caseworkers are as important as guardianship laws. More, because we learn more every year about the inadequacy of the public commitment to the “unbefriended,” those who do not have equal access to support, or equal treatment under the law, because they do not have private resources or supportive families to provide such access.
Both of these challenges require a greater investment at the highest levels of government. We have known this for a long time. The effort to reform guardianship in Massachusetts began more than 25 years ago, and was well underway when I became Attorney General in 1991. We saw older Americans who were clearly being victimized, through abuse, neglect, financial exploitation and a variety of other areas. The laws themselves did not provide adequate protection in the form of due process in guardianship proceedings.
Our Attorney General Elder Protection Project was designed to ensure a major public protection focus on these issues. Because of our success, and the response from our multi-disciplinary set of partners, those goals also became a priority during my 1996-97 tenure as President of the National Association of Attorneys General.
In 1996, as a part of the Elder Protection Project, my Office sponsored a major conference on guardianship reform, attended by many dedicated professionals who are still working in the field in Massachusetts today. Ten years ago the Commonwealth finally enacted the Uniform Probate Code, which increased due process rights for those subject to guardianship.
But, in spite of the progress, we failed to create, at the state level, an advocacy and oversight agency to ensure there is an institutional voice that focuses on the public commitment to support and help those who do not have other resources. Today, we still have no answer for the “unbefriended,” or for others who simply are poor, powerless and vulnerable, who without us have no voice.
Those who work with decisional support needs, as social workers, as lawyers, as psychologists and counselors, or who have had parents who have gone through various levels of care and treatment, know how important it is to have professional, effective resources available to help people make decisions in these very complicated areas. We also know that the least-restrictive kinds of decisional support – especially private support arrangements – are also the least accessible if a person does not have private resources. With this being the reality, how do we provide equal justice, equal access and equal treatment under law?
An important part of the answer is, I believe, an Office of Public Guardian. This statutory agency would have responsibility, not for taking over the entire area of public guardianship, but for providing the kind of comprehensive oversight, training, and advocacy needed to rebalance the two-tier system of justice that we now have. These core functions are critical to ensuring equal access to decisional support.
The call for a Public Guardian does not in any way minimize the importance of the Executive Office of Health and Human Services, the Office of Elder Affairs, or the Departments of Mental Health and Development Disabilities, all of which play important roles. Together, those agencies provide nearly 1,000 guardians for individuals who qualify under their program requirements. But the research shows that there are at least another 3-4,000 individuals in Massachusetts who are not reached by those agencies, for whom there is no public response. The missing player is a state guardian-of-last-resort.
Beyond this, an Office of Public Guardian will be an advocate to keep both government and community actors focused on decisional support needs. It will provide standards, oversight, training and accountability for all of the various agencies and individuals that serve in decisional support roles, whether as family members, as volunteers, or as parts of state agencies. We need that centralized focus, not to eliminate the resources that exist, but to mobilize them and be sure they’re being directed at those who most need it.
I’m very hopeful that the Massachusetts Guardianship Policy Institute, working with the hundreds of other participants and stakeholders on decision support issues, will continue to lead, energize and mobilize a multidisciplinary effort to establish that new Office.
We need you not only to engage professionally, but also to participate actively in the political process. Maybe we have forgotten, as part of our civic education, that in a society built on law and constitutional government, public policy does not come out of thin air. Policy, for better or for worse, is implemented – or not – through the political process. The founder of Common Cause, John Gardner, did so, he said, because the only group that wasn’t organized in Washington was the people, and the only interest not represented was the public interest!
Democracy is not a spectator sport. At the end of the day, we implement policy that matters only by being willing to enter the fray, particularly for those who, without us, have no one. You are their voice. You are the cavalry. We need you, and we invite you to participate.