The sentence in the box to the left is taken from an excellent article published this year in the St. Louis Bar Journal.  Titled "Due Process and Best Interests: The Challenges of Guardianship Cases," the article is written by Heather Hall and Josh Rose.  Both are attorneys whose practice includes cases in which they are appointed by the court to represent adults living under an order of guardianship or who are targeted by a guardianship petition. 

The article spells out in considerable detail the rights of such adults in guardianship proceedings.  One of them is the right to have counsel who advocates for their wishes and protects their rights.  One such right is to have appointed counsel seriously explore less restrictive alternatives and to argue for such, including demanding an evidentiary hearing or jury trial on the matter if necessary.  What the article does not address, however, is the extent to which such attorneys are doing this in actual practice.  Nor does it address how attorneys are impeded in providing such advocacy because they are often paid a flat fee of a few hundred dollars which, in effect, puts them in a bind and creates an actual or apparent conflict of interest.  Put in three hours and earn about $150 per hour or put in more hours and perform the extra work for free.   

The Alternatives to Guardianship Project will be investigating how many lawyers serve as appointed counsel in Missouri, how they are trained, if they have performance standards to meet, how much they are paid, and what system of monitoring exists to ensure that clients who generally cannot identify deficient performance (ad therefore cannot complaint about malpractice) receive the quality of representation that due process and the Americans with Disabilities Act would require.  It will also examine the duties of the state and of counties to allocate sufficient funds to enable attorneys to provide effective assistance to indigent clients and steps that public entities can take to increase the level funding for guardianship legal defense and advocacy services. 

The Alternatives to Guardianship Project has sent a letter to the Missouri Supreme Court inquiring into what actions, if any, it took in response to an ADA complaint filed by Spectrum Institute with the Court in 2017.  The complaint alleged that the state's adult guardianship system was out of compliance with requirements of Title II of the federal Americans with Disabilities Act.  The court clerk acknowledged receipt of the complaint in 2018, indicating that it was "under review" by the Court.  Despite a follow-up inquiry by Spectrum Institute in 2019, the organization never heard from the Court on the matter again.  This outreach to the Court by the Project is part of its due diligence to determine what actions have been taken by any officials or public entities to improve the administration of justice in guardianship proceedings.  To read the letter from the Project to the Court, click here.  To read the ADA complaint and related materials, click here.

Update: (9-24-22)  We received a reply from the general counsel to the Supreme Court indicating that the Court did not take any action in response to the ADA complaint from Spectrum Institute, explaining that it wanted to see how a new law would be implemented.  However, the letter indicates that the Court is open to receiving additional materials for consideration on the subject.  We passed this information on to Spectrum Institute and have been informed that it will be providing the Court with additional materials on the application of the ADA to adults guardianship proceedings.

The Alternatives to Guardianship Project has initiated an analysis of the policies governing Missouri's adult guardianship proceedings as well as the practices of judges, attorneys, and a variety of professionals who are involved in these cases.  Policies include statutes, court rules, appellate rulings, and training programs for judges and attorneys.  Practices pertain to how the system operates in real life.  This research is foundational to the mission of the project.  We will identify areas where policy is good or deficient.  We will compare Missouri's policies on guardianship and alternatives with those in other states, especially in places where reforms have occurred.  We will also identify areas where actual practices do not conform to existing policies.  In addition, we will endeavor to obtain a census of adults under guardianship and demographics showing who they are.  All of this will eventfully be included in an action report which will contain our findings and recommendations.

The California Legislature gave final approval in August 30 to a bill that will: (1) require alternatives to conservatorship to be seriously considered by petitioners and ruled out as unfeasible by the court; (2) strengthen the rights of adults living under an order of conservatorship; (3) give conservatees the right to petition for termination once a year and to have an attorney appointed to assist them if they inform the court of the desire to terminate.  After an appropriation of funds by the legislature, courts will be required to operate self-help centers to explain and help petitioners explore less restrictive alternatives such as supported decision-making and powers of attorney.  There were no dissenting votes in either the Senate or Assembly.  The bill is expected to be signed into law by the governor in September and will take effect on January 1, 2023.  To read the Assembly Floor Analysis of the bill, click here.  The Alternatives to Guardianship Project will be analyzing how provisions of AB 1663 can be adapted for use in Missouri.  The project will also analyze and compare SDM laws in New York (see below) and those in Texas (2015), Delaware (2015), Wisconsin (2018), North Dakota (2019), Rhode Island (2019), Indiana (2019), Nevada (2019), Washington (2020), Louisiana (2020) and Colorado (2021).