The Convicted Felon as a Guardian: Considering the Alternatives of Potential Guardians with Less-Than-Perfect Records
Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.
At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.
The groups most impacted by these trends are the indigent and the minorities. The indigent do not have the resources to hire guardians and often, the only persons eligible and available to serve as guardians are family members. The minorities may be impacted if they are of a race that has historically possessed a disproportionate amount of felons. If poverty and race are considered, along with an increasing number convicted felonies, a significant problem develops in finding eligible guardians.
Persons convicted of felonies should be scrutinized closely to determine whether it is in the ward’s best interest to have said person appointed as a guardian, but certain statues completely prevent the court from making such a consideration.
The alternatives available to the convicted felon to mitigate against the complete restraint are woefully inadequate. The remedies of dismissal, annulment, expungement, and pardon are not feasible for most felons. The signing of a durable power of attorney is not available to many indigent and elderly persons, or to children who have been developmentally challenged since birth.
Other considerations, such as extending full faith and credit, comity or the best interest standard are equally inadequate to resolve the needs for guardians. Finally, the uniform codes and proposed standards do not address the issue sufficiently.
This article promotes allowing the judiciary discretion to appoint felons in certain situations where it would be in the best interest of the ward. The article further discusses the inadequacies of the uniform codes and proposed standards in this area of concern.
Civil Rights and Discrimination | Elder Law | Estates and Trusts | Health Law and Policy | Law and Psychology | Legislation | Property Law and Real Estate | Social Welfare Law
Date of this Version
Mike Jorgensen, "The Convicted Felon as a Guardian: Considering the Alternatives of Potential Guardians with Less-Than-Perfect Records" (August 22, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1604.