Guardianship: Balancing Autonomy and Paternalism

This course delves into the legal and ethical issues around guardianship. Students will learn about the process and ways to deal with the issues of whether a person needs a guardian, and if so, what powers should be given to the guardian.

Guardianship: Balancing Autonomy and Paternalism

The older population in the United States is growing rapidly. By 2050, persons over age 65 will represent 20 percent of all Americans and the over 85 cohort—the fastest-growing segment of our population—will make up about 5 percent. But with aging, for many, comes illness and incapacity. In addition, there are millions of younger people who have disabilities. Many of these people lose the ability to make decisions about their personal lives and financial affairs and, unfortunately, have not executed “advance directives,” enabling people they trust to speak for them and advocate for their previously expressed wishes. In these cases, someone, usually a family member, must apply to a court for the appointment of a guardian or, in some states, a conservator.

Guardianship proceedings involve complicated issues of law, ethics, constitutional rights, and health care. The process involves a balancing of the state and family's duty to protect and care for incapacitated persons and an individual’s right to independence and freedom—including the right to make bad choices. The guardianship proceeding is the process that is designed to strike that balance and impose the least restrictive alternative on the person who is adjudged to be incapacitated.

This course is designed to delve into these issues. Students will learn about the process and ways to deal with the issues of whether a person needs a guardian for either property management, personal needs, or both, and if so, who should be appointed guardian and what powers should they be given. Students will learn the procedure, including questions of how the proceeding is commenced; who the proper parties are; whether counsel for the alleged incapacitated person should be appointed; what evidence is admitted at the required hearing; who has a right to attend the hearing; whether a jury trial is allowed; and what rules of evidence are applied.

In this simulation-based course, Professor Strauss will utilize appropriate cases that were previously assigned to the Elder Law Clinic as the basis for the class seminars. Utilizing those cases, students will learn about the substantive issues in guardianship proceedings and will study interviewing techniques, counseling, negotiation, and evidence trial practice and procedure. This will be accomplished through use of the file documents from prior clinic semesters, simulation interviews with actors, and class discussion of the simulations. Students will also be assigned the preparation of a guardianship petition and a court evaluator report based on a case study. Additionally, there will be assigned reading from two course books and other course materials. Guests in the guardianship field will be invited to meet with students in class to discuss substantive issues.

This two-hour seminar meets weekly. As noted, students study the applicable substantive, procedural, and ethical rules governing guardianship proceedings, and are assigned readings and simulation exercises relevant to the interviewing, investigating, and counseling tasks that arise in these kinds of cases. Each student will meet with Professor Strauss for bi-weekly tutorials and when necessary. The seminar is graded. A paper is required.

Approved for the Experiential Learning Requirement. Enrollment is limited. Registration is binding.

Recommended for the Following Professional Pathways: Family Law; Health Care Management and Compliance; Trusts and Estates; General Practice - Litigation/Dispute Resolution; General Practice - Transactional.

2 Credits


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