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Addressing Bias in the Guardianship Process

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Guardianship is a legal relationship that is created when the court gives a person, the guardian, the power to make personal and financial decisions for another person. Guardianship can strip an older adult of their autonomy and should be a mechanism of last resort. Older adults do not experience the guardianship system equitably: older adults of color, LGBTQ+ older adults, and those with other marginalized identities face systemic discrimination that may increase their likelihood of guardianship, and biases embedded into the guardianship system exacerbate existing disparities. This series of four issue briefs examines various aspects of the guardianship system and offers recommendations to reform the system to promote equity in aging.

Research assistance provided by Sahar Takshi, Staff Attorney. Justice in Aging thanks the AARP Public Policy Institute for its generous support.

The Guardianship System

Guardianship is a legal relationship created when a court gives one person (the guardian) the power to make personal and financial decisions for another person (the person subject to guardianship). Because guardianship is based exclusively on state law, the legal requirements and court process can vary widely from state to state. Indeed, even basic terminology can differ.1 The process is typically initiated when a petition is filed by a third party with the court alleging that an individual’s decisional capabilities are impaired and their personal or financial needs are not being met. The court will hold a hearing, and the judge will ultimately issue a decision either granting or denying the guardianship. If the guardianship is granted, the court will appoint a guardian, possibly a family member but potentially a stranger, who will take charge of the individual’s important life decisions and money. The court might limit the guardianship’s scope and duration, but it is more likely to grant a “plenary” or “general” guardianship with few restrictions that will remain in place until either it is no longer necessary and affirmatively terminated by the court, or the person subject to guardianship dies.

The oft-stated purpose of guardianship is to protect people who are seen to be at risk of harm. But that protection comes at a cost. A plenary guardianship strips the person under guardianship of their fundamental rights and decision-making authority over various and broad aspects of their lives. Guardianship can leave individuals with limited rights, often effectively resulting in their “civil death.”2

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Guardianship & Marginalized Communities

For decades, advocates have raised concerns about the guardianship process and its lack of procedural and substantive protections. For older adults who have faced bias and structural discrimination throughout their lives, such as communities of color and the LGBTQ+ community, the civil rights implications of guardianship are even greater. Members of these and other marginalized communities are likely to face bias, both structural and implicit, within the larger guardianship system. Structural bias can exist as processes and procedures, even court rules and statutes, that “lock in” past inequalities and produce unfair outcomes, while implicit bias is the human tendency to subconsciously associate certain stereotypes with particular categories of people.3 Every person operating within the larger guardianship system possesses some level of implicit bias, including judges, attorneys, court staff, medical doctors, psychiatrists, and public, private, and family guardians.4 The overwhelming likelihood is that those biases operate to the disadvantage of marginalized communities. It is well documented that that bias can translate to less favorable outcomes and disparate treatment for people of color in the legal system (increased risk of prosecution and imprisonment, reduced likelihood of pretrial release and parole, for example).5

Similarly well documented is the lack of diversity within both the legal and medical professions. In state courts across the country, fewer than two in ten judges are people of color, although people of color make up roughly four in ten people in the U.S.6 Nearly 80% of all U.S. lawyers are white.7 The medical profession fares little better with only 5% of doctors being Black and 9% Hispanic.8 Thus, the likelihood that an older adult of color will come into contact with anyone during the guardianship process who looks like them, hails from their same community, shares their same history, or holds their same cultural values is slim, while the likelihood remains high that they may be negatively impacted during that process by bias because of their race, ethnicity, cultural identity, socioeconomic level, sexual orientation, etc.

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Areas in Which Implicit Bias Can Enter the Guardianship Process

Each of the numerous decision points between the filing of a guardianship petition and the ultimate termination of the guardianship has the potential to raise biases among the various decision makers involved in the process. To illustrate:

  • At the outset of a guardianship case, decisional capability might be evaluated by the court, medical or legal providers, or other involved parties through standardized tests intended to determine decisional capability and ability to perform activities of daily living. However, the tests and their interpretation may be biased against certain races and ethnicities and may fail to consider cultural and social norms and practices within a given community.9 Bias can also impact medical diagnosis.10 One recent study, for example, found a pervasive and measurable implicit bias in psychiatrists and medical students when it came to associating Black patients with psychosis, non-compliance, and the prescription of antipsychotic medication.11

    Evaluators are also likely assessing the older adult’s decisional capability based on what (to the evaluator) is the objective reasonableness of the older adult’s decisions and actions. But to the older adult being evaluated, their particular decisions are valid based on their individual and community values. For example, an LGBTQ+ older adult might make decisions about gender expression that are not in line with what the evaluator (or the family or the judge) considers to be objectively reasonable. To the older adult, though, those decisions are not only reasonable but possibly fundamental to identity.
  • When selecting the guardian, the court might rely on a state priority statute that ranks family members in order of preference by their degree of closeness in relation to the older adult facing guardianship. But the court may be relying on a statute that preferences “traditional” family structures over other types of structures, which might disadvantage LGBTQ+ older adults by ignoring the idea of “chosen family” so prevalent in the LGBTQ+ community and so important to members of that community who have been estranged from their biological families.12
  • After the court appoints the guardian, state law might direct the guardian to utilize the “best interest” standard to make decisions about the older adult’s health, safety, and welfare. But what if the guardian holds some implicit bias that colors every decision? If, for example, the guardian is biased against Native American individuals (or biased in favor of conventional, Eurocentric behaviors and norms), what the guardian believes to be in the best interest of a Native American older adult under guardianship might be in direct conflict with the older adult’s identity and desires regarding such things as healthcare (traditional healing versus mainstream); religious and spiritual practices, including those surrounding death and dying; living arrangements; associations and involvement of others in daily life and major decisions; even diet.

Eliminating bias in the larger guardianship system will require intentional and sustained work by everyone involved. At a structural level, systemic bias must be acknowledged and addressed within the health care system and the legal system and at all levels of government. At an individual level, personally held explicit and implicit biases must be assessed and unlearned. The work will require the combined efforts of judges, attorneys, court staff, lawmakers, health care personnel, adult protective service workers, public and private guardians, and many others. Such intentional and sustained effort is critical to creating a fair and equitable guardianship system that works for everyone.

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Recommendations

  • State governments and high courts should provide funding to lower courts, prioritizing courts handling guardianship cases, to conduct ongoing organizational assessment and training relating to bias identification and elimination.
  • Federal agencies that provide grants to state courts should create new grant opportunities and review existing grants to ensure the inclusion of a bias identification and elimination component.
  • Courts should conduct a system-wide self-assessment to identify the systemic changes needed to combat racial prejudice, both explicit and implicit, within the justice system.
    The National Center for State Courts has recently released the Racial Justice Organizational Assessment Tool for Courts to support courts in that work.
  • State courts should implement mandatory training programs on bias identification and elimination for all judges and court staff and, further, should require the inclusion of an antibias module in mandatory training for all guardians.
    Training must be ongoing and sustained. Training, literature, and technical assistance are available from a wide variety of sources, including the American Bar Association, the National Judicial College, and the National Center for State Courts, as well as private consultants and organizations like the Shriver Center on Poverty Law and the University of Wisconsin-Madison Prejudice and Intergroup Relations Lab, to name a few.13
  • Bench cards, worksheets, checklists, and other written materials should be funded and developed to aid judges, court staff, attorneys, and guardians and promote unbiased decision-making.
    A promising model can be found in the bench card created for the juvenile justice system. Existing written materials should be reviewed to ensure they are bias free.
  • Legal aid organizations should create or expand programs to ensure that older adults facing or under guardianship, including those from marginalized communities, have access to zealous, client-directed, person-centered advocacy.
    Legal aid funders should prioritize this important work.

Advancing equity in guardianship and reform efforts requires looking at various parts of our systems and structures. Additional Justice in Aging publications will examine this topic by exploring the need for more and better data on guardianship and marginalized older adults; promoting less restrictive alternatives to marginalized communities; and inclusive, culturally sensitive statutory bills of rights to address the unique concerns of marginalized older adults.

Endnotes

  1. Some states use the term “conservatorship” to refer to control over financial decisions and “guardianship” for control over personal decisions. This issue brief will use “guardianship” to cover both situations. ↩︎
  2. Fred Bayles, AP News, Guardians of the Elderly: An Ailing System Part 1: Declared ‘Legally Dead’ by a Troubled System (1987). ↩︎
  3. See, e.g., Jerry Kang, Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1133 (2012) (noting that structural bias is a “set of processes that produce unfairness in the courtroom [and] can lock in past inequalities, reproduce them, and indeed exacerbate them even without formally treating persons worse simply because of attitudes and stereotypes about the groups to which they belong”). “Implicit bias” refers to feelings, attitudes, and stereotypes that affect a person’s understanding, actions, and decision-making processes in an unconscious manner. These biases develop over a lifetime and result in cognitive shortcuts to filter information and categorize people and evidence. ↩︎
  4. See Donald J. Polden, Leadership to Address Implicit Bias in the Legal Profession, 62 Santa Clara L. Rev. 63, 70-75 (2022); Isabel Bilorta, et al., How Subtle Bias Infects the Law, 15 Ann. Rev. L. & Soc. Sci. 227, 236-40 (2019). ↩︎
  5. See, e.g., Polden, supra note 4, at 75-81; Bilorta, supra note 4, at 234-36; see generally Darren Lendard Hutchinson, ‘With All the Majesty of the Law’: Systemic Racism, Punitive Sentiment, and Equal Protection, 110 Calif. L. Rev. 371 (2022); Bernice B. Donald, Implicit Bias: The Science, Influence, and Impact on Justice, 22 Sedona Conf. J. 583 (2021); Danielle L. Macedo, What Kind of Justice Is This? Overbroad Judicial Discretion and Implicit Bias in the American Criminal Justice System, 24 J. Gender Race & Just. 43 (2021). ↩︎
  6. See Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Court? (2018), available at https://www.acslaw.org/wp-content/uploads/2018/02/gavel-gap-report.pdf. ↩︎
  7. Only 5% of U.S. lawyers are Black and 6% Hispanic. See American Bar Association, Profile of the Legal Profession (2023), available at https://www.americanbar.org/content/dam/aba/administrative/news/2023/potlp-2023.pdf. ↩︎
  8. Some 62% of U.S. doctors are white and 18% are Asian. See Zippia, Doctor Demographics and Statistics in the U.S. (2021), available at https://www.zippia.com/doctor-jobs/demographics/; see also Enrique Rivero, UCLA Newsroom, Proportion of Black Physicians in U.S. Has Changed Little in 120 Years, UCLA Research Finds (2021), available at https://newsroom.ucla.edu/releases/proportion-black-physicians-little-change. ↩︎
  9. See, e.g., Pete Madden, ABC News, Neuropsychologists Call for Elimination of Race-Norming in Clinical Tests Following NFL Concussion Controversy (2021), available at https://abcnews.go.com/US/neuropsychologists-call-elimination-race-norming-clinical-tests-nfl/story?id=81493363; American Academy of Neuropsychology, Position Statement on Use of Race as a Factor in Neuropsychological Test Norming and Performance Prediction (2021), available at https://theaacn.org/wp-content/uploads/2021/11/AACN-Position-Statement-on-Race-Norms.pdf. ↩︎
  10. See, e.g., Janice A. Sabin, New England Journal of Medicine, Tackling Implicit Bias in Health Care (2022), available at https://www.nejm.org/doi/full/10.1056/NEJMp2201180; Maddalena Marini, Psychology Today, Does Implicit Bias Affect Clinical Decision Making? (2019), available at https://www.psychologytoday.com/us/blog/the-hidden-mind/201905/does-implicit-bias-affect-clinical-decision-making; Yesenia Merino, et al., Psychiatric Services, Implicit Bias and Mental Health Professionals: Priorities and Directions for Research (2018), available at https://ps.psychiatryonline.org/doi/10.1176/appi.ps.201700294. ↩︎
  11. See Amalia Londono Tobon, et al., Acad Psychiatry, Racial Implicit Associations in Psychiatric Diagnosis, Treatment, and Compliance Expectations (2021), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7933096↩︎
  12. See Nancy J. Knauer, LGBT Issues and Adult Guardianship in Comparative Perspectives on Adult Guardianship 299, 308 (A. Kimberley Dayton ed., 2014), available at https://cap-press.com/pdf/2506.pdf↩︎
  13. For an insightful article discussing the elements of effective unconscious bias training, see Francesca Gino & Katherine Coffman, Unconscious Bias Training that Works, Harvard Business Review (Sept.-Oct. 2021), available at https://hbr.org/2021/09/unconscious-bias-training-that-works. ↩︎

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