Enhancing Self-Determination through Guardian Self-Declaration

Abstract:     
History has revealed a long-standing tradition of affording legal protection to adults unable to act for themselves. American jurisprudence has shifted from addressing the guardianship of incompetent persons in the law of equity to heavily regulating these matters statutorily. State regulations often prioritize which persons may be appointed as guardian of the ward's person and estate. This article considers to what extent an incapacitated person may influence or control the court's selection of the ward's guardian. Because the an incompetent person retains his emotional and psychological self-worth, his interests and desires should be considered, something statutory prioritization often does not do. An incompetent's legal right to determine his fate is ever-increasing. This article highlights the growing trend in the United States to permit competent individuals to select their guardians pre-incompetency. The forms utilized in a few states to effectuate this pre-selection are examined and their effectiveness critiqued. The author recommends that each jurisdiction enact a free-standing self-designation of guardian act that encompasses a statutory fill-in-the-blank form. There should be greater access to and simplicity of specially designed statutory fill-in forms.

Keywords: guardianship, forms

JEL Classifications: K11, K19, K39

Accepted Paper Series