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Public Guardianship In the Best Interests of
Incapacitated People 1st Edition Pamela B. Teaster
Digital Instant Download
Author(s): Pamela B. Teaster, Winsor C. Schmidt Jr., Susan A. Lawrence
Ph.D., Marta S. Mendiondo, Erica F. Wood
ISBN(s): 9780313378270, 0313378274
Edition: 1
File Details: PDF, 1.64 MB
Year: 2010
Language: english
 PUBLIC
GUARDIANSHIP
In the Best Interests of
Incapacitated People?

Pamela B. Teaster, Winsor C. Schmidt Jr.,

Erica F. Wood, Susan A. Lawrence,
and Marta S. Mendiondo
Copyright 2010 by Pamela B. Teaster, Winsor C. Schmidt Jr., Susan A. Lawrence, Marta S.
Mendiondo, and the American Bar Association.
The contribution of Erica F. Wood to the materials herein is on behalf of the American Bar
Association as an employee of the American Bar Association. The materials contained herein
represent the opinions of the authors and editors and should not be construed to be those
of either the American Bar Association or the Commission on Law and Aging unless adopted
pursuant to the bylaws of the Association. Nothing contained herein is to be considered as
the rendering of legal advice for specific cases, and readers are responsible for obtaining such
advice from their own legal counsel. These materials and any forms and agreements herein
are intended for educational and informational purposes only.
Every reasonable effort has been made to trace the owners of copyright materials in this
book, but in some instances this has proven impossible. The authors and publisher will be
glad to receive information leading to more complete acknowledgments in subsequent
printings of the book and in the meantime extend their apologies for any omissions.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, electronic, mechanical, photocopying,
recording, or otherwise, except for the inclusion of brief quotations in a review, without
prior permission in writing from the publisher.
Library of Congress Cataloging-in-Publication Data
Public guardianship : in the best interests of incapacitated people? / Pamela B. Teaster . . .
[et al.].
p. ; cm.
Includes bibliographical references and index.
ISBN 978-0-313-37827-0 (hardcover : alk. paper) — ISBN 978-0-313-37828-7 (ebook)
1. Guardian and ward—United States. 2. Capacity and disability—United States.
3. People with disabilities—Legal status, laws, etc.—United States. 4. People with
disabilities—Services for—Government policy—United States. 5. People with
disabilities—Care—Government policy—United States. I. Teaster, Pamela B.
(Pamela Booth).
[DNLM: 1. Legal Guardians—legislation & jurisprudence—United States. 2. Disabled
Persons—legislation & jurisprudence—United States. 3. Patient Advocacy—legislation &
jurisprudence—United States. 4. Public Policy—United States.
W 32.5 AA1 P976 2010]
KF553.P83 2010
346.7301'8—dc22 2009037035
14 13 12 11 10 1 2 3 4 5
This book is also available on the World Wide Web as an eBook.
Visit www.abc-clio.com for details.
ABC-CLIO, LLC
130 Cremona Drive, P.O. Box 1911
Santa Barbara, California 93116-1911
This book is printed on acid-free paper
Manufactured in the United States of America
 CONTENTS

Preface vii
Acknowledgments ix

1. Introduction 1
2. State Statutory Analysis: Adult Guardianship
and Public Guardianship Law 15
3. Case Studies 31

4. Conclusions and Recommendations 121

5. Model Public Guardianship Act 149

Appendices
Appendix A: State Public Guardianship Statutory Charts 173
Table 1: Statutory Authority and Type of Program 173
Table 2: Procedural Due Process Safeguards in Guardianship 183
Table 3: Assessment; Civil Liberties; Selection of Guardian 194
Table 4: Powers and Duties of Guardians; Costs 202
Table 5: Additional Guardianship Provisions 208
Appendix B: State Public Guardianship Profiles 213
Appendix C: Classification of Models by State 247
Bibliography 249
Index 255
This page intentionally left blank
 PREFACE

T
he purpose of this book, which is based on two phases of research con-
ducted in 2004 and 2007, is to advance public understanding about the
operation and impact of state public guardianship laws and programs,
including a comparison of public guardianship today with public guardianship in
1981. The anticipated audience is not only the aging public, but also attorneys,
judges, policy makers, public administrators, researchers, aging and disability ad-
vocates, social workers, long-term care facility staff, gerontology and social work
students, law enforcement officials, professional guardians, and family and friend
guardians. There are private, professional, and public guardians all over the coun-
try, and the number of persons performing this function is increasing in terms of
both size and national visibility. There is a growing body of research on this topic
and the related issues of elder abuse, elder rights, and ethics. For individuals who
are public and professional guardians, this text will serve as an essential tool for
the job. Our book is useful both as a primary and as a supplemental textbook in
law schools, and for undergraduate and graduate programs that focus on geron-
tology, disability, social work, psychology, public health, public administration,
nursing, and health care management and policy.
This page intentionally left blank
 ACKNOWLEDGMENTS

T
he views expressed herein have not been approved by the House of Del-
egates or the Board of Governors of the American Bar Association and
should not be construed as representing the policy of the American Bar
Association.
Preparation of this book was supported in part by The Retirement Research
Foundation.
The authors are grateful for the support they received throughout this project.
The public guardianship staff, judges, lawyers, adult protective services workers,
aging and disability advocates, and incapacitated persons who participated in our
site visit interviews contributed greatly to our findings.
In particular, we thank the following people who assisted with the project:
Anita Royal, Pima County, Arizona, Office of the Public Fiduciary; Richard Van-
derheiden, Phoenix, Arizona, Maricopa County Office of the Public Fiduciary;
Jane Adams, San Bernardino County, California, Office of the Public Guardian;
Christopher Fierro, Los Angeles County, California, Office of the Public Guard-
ian; Robin Williams-Bruner, Delaware, Office of the Public Guardian; Michelle
Hollister, Florida, Florida Statewide Public Guardianship Office; John Wank,
Illinois, Office of the State Guardian; Patrick Murphy, Cook County, Illinois,
Office of the Public Guardian; and Valarie Colmore, Suzanne Lord, and Sue
Vaeth, the Maryland Adult Public Guardianship Program.
We thank the Virginia Public Guardians for helping us with case examples.
Our advisory committee offered valuable perspectives that improved our re-
port: Karen Roberto, Virginia Polytechnic Institute and State University; Joy
Duke, Virginia Guardianship Association; David English, University of Missouri-
Columbia School of Law; Naomi Karp, AARP Public Policy Institute; Sally
Hurme, AARP Financial Security; and Marty Ford of the Arc of the United
States.
We appreciate the assistance of Julie Kaufman at The Retirement Research
Foundation and the grant from the Foundation that made this project possible.
We acknowledge all of the incapacitated persons served by the public guard-
ians and hope this report will contribute to their quality of life.
X ACKNOWLEDGMENTS

We thank Jamie Philpotts of the ABA Commission on Law and Aging for
her excellent editorial assistance. We gratefully acknowledge the help of Debra
Dunn and Francis Vorksy, graduate students at the University of Kentucky Grad-
uate Center for Gerontology, as well as that of Post-Doctoral Scholar, Dr. Tenzin
Wangmo.
Finally, we thank our colleagues, friends, and families for supporting us as we
worked on this project.
Pamela B. Teaster
Winsor C. Schmidt Jr.
Susan A. Lawrence
Marta S. Mendiondo
Erica F. Wood
 Chapter 1

INTRODUCTION

Mrs. K, at age 89, has lived in a small group home for over 20 years. During
early adulthood, Mrs. K was diagnosed with schizophrenia and depression,
and her sister had served as her guardian, but has recently died. Mrs. K
never married, and had no relatives except a distant cousin in another state
who expressed little interest. Now she is slowly losing mobility, has sig-
nificant hearing loss, and is at risk for a stroke. Mrs. K has fallen and
broken her shoulder. Moreover, the group home where she resides has not
been paid for many months due to a Medicaid problem. Social services
recommended that Mrs. K be served by the state’s public guardianship
program.

This book aims to shed light on how governments are carrying out their basic
parens patriae role for those who have no one else. Parens patriae literally means
“parent of the country” and refers to the vital role of a state as the sovereign and
guardian of people with legal disabilities.1

O VERVIEW
This chapter provides an introduction and overview of adult guardianship
and public guardianship, including key studies, news stories, and cases affecting
the evolution of guardianship. It also briefly describes the design, methods, and
procedures used to collect the data that serve as the foundation for this book.

B ACKGROUND
Noted bioethicist Nancy Dubler observes that:

The single greatest category of problems we encounter are those that ad-
dress the care of decisionally incapable [individuals] . . . who have no liv-
ing relative or friend who can be involved in the decision-making process.
These are the most vulnerable . . . because no one cares deeply if they live
or die, no one’s life will be fundamentally changed by the death of the
2 PUBLIC GUARDIANSHIP

resident. We owe these [individuals] the highest level of ethical and medical
scrutiny; we owe it to them to protect them from over-treatment and from
under-treatment; we owe it to them to help them to live better or to die in
comfort and not alone.2

These unbefriended incapacitated people are the clients of public guardianship

programs. The unbefriended are persons who are unable to care for themselves
and are typically poor, alone, and often different3 persons with no other recourse
than to become wards of the state. Serving them well is a challenge for any gov-
ernment, especially one under budgetary constraints. Their lives have remained
largely unexamined, a part of the backwater of the governmental social service
and welfare machinery. A legal services advocate observes, “When examined in
the larger context of social programming through which we purport to help the
less advantaged, involuntary guardianship emerges as an official initiation rite for
the entry of the poor and the inept into the managed society.”4 When Schmidt
and colleagues conducted the landmark national study of public guardianship5
in the late 1970s, it was a fairly new phenomenon and public guardianship prac-
tices were highly uneven. The purpose of that study was to assess the extent to
which public guardianship assists or hinders older persons in securing access to
their rights, benefits, and entitlements. No further study was conducted on a
national level until 2005.6 In the intervening period of over 25 years, converging
trends escalated the need for guardianship: the graying of the population (with
a sudden upward spike anticipated around 2010, when the Baby Boomers begin
to come of age), the aging of individuals with disabilities and the aging of their
caregivers, the advancements in medical technologies affording new choices for
chronic conditions and end-of-life care, the rising incidence of elder abuse, and
the growing mobility that has pulled families apart. In response, most states have
reformed their adult guardianship laws and many have enacted public guardian-
ship programs.
Against this backdrop, it was imperative to conduct a new national study.
This new and second national study of public guardianship funded by The Re-
tirement Research Foundation was conducted from 2004–2007. It aimed for a
direct comparison over time with the pioneering 1981 work, as well as to update
statutory analysis, produce a model statute, and develop detailed profiles of each
state’s public guardianship situation. It provides a compelling snapshot based on
a national survey, as well as in-depth case studies of nine programs in six states
(e.g., Arizona, California, Delaware, Florida, Illinois, and Maryland), as did the
previous work.7
The purpose of this book, based on the latter research, is to advance public
understanding about the operation and impact of state public guardianship laws
and programs, including a comparison of public guardianship today with public
guardianship in 1981. The book seeks to aid both the interested and aging pub-
lic, as well as policy makers, public guardianship practitioners, and advocates in
 INTRODUCTION 3

promoting better public guardianship programs and, thus, more meaningful lives
for unbefriended incapacitated persons (IPs) under the care of the state.

A DULT G UARDIANSHIP
Overview of Reform
Guardianship is a relationship created by state law in which a court gives one
person (the guardian) the duty and power to make personal and/or property deci-
sions for another (the ward or legally incapacitated person).8 The appointment of
a guardian occurs when a judge decides that an individual lacks the legal capacity
to make decisions on his or her own behalf. Adult guardianship protects legally
incapacitated individuals and provides for their decisional needs while simultane-
ously removing fundamental rights.9 Guardianship can “unperson” individuals
and make them “legally dead.”10 Guardianship can be a double-edged sword,
“half Santa and half ogre.”11
Early studies of protective proceedings, including guardianship, found little
benefit for the legally incapacitated person (IP) and concluded that many peti-
tions were filed for the benefit of third parties, or based on well-meaning but
ineffective motivations to aid vulnerable groups.12 Despite the initial reform ef-
forts of the 1970s and 1980s, state guardianship remained an unexamined area
governed by archaic terms, inconsistent practices, drastic paternalistic interven-
tions, little attention to rights, and meager accountability.13
In 1986, the Associated Press undertook a one-year investigation of adult
guardianship in all 51 jurisdictions, including more than 2,200 randomly se-
lected guardianship court files and multiple interviews with a range of infor-
mants. The resulting six-part national series presented in 1987, Guardians of
the Elderly: An Ailing System, described a troubled process: “a crucial last line
of protection for the ailing elderly, [that] is failing many of those it is designed
to protect.”14 In quick response, the U.S. House Select Committee on Aging
convened a hearing,15 which, in turn, triggered an interdisciplinary National
Guardianship Symposium in 1988 (the Wingspread Conference) that resulted in
recommendations covering procedural issues, capacity assessment, and guardian
accountability.16
These events precipitated a rush to reform state guardianship laws, highlighted
by five marked trends: (1) enhanced procedural due process in the appointment
of a guardian; (2) a more robust determination of capacity based not only on
medical condition, but also on functional ability, cognitive impairments, risks,
and values; (3) an emphasis on limited orders that were more tailored to the
specific capacities of the individual; (4) bolstered court monitoring of guardians;
and (5) the development of public guardianship programs.17 A Uniform Guard-
ianship and Protective Proceedings Act (UGPPA) was developed in 1982 and
updated in 1997.18
4 PUBLIC GUARDIANSHIP

However, guardianship practices by judges, attorneys, guardians, and other

actors did not automatically follow statutory reforms. Guardianship experts
contend that although many legislative changes have occurred, commensurate
changes to guardianship proceedings in practice and in effect on the lives of vul-
nerable respondents have been uneven or difficult to determine.19

Empirical Research
Few empirical studies of guardianship exist. In 1972, Alexander and Lewin
studied over 400 guardianships and concluded that as a device of surrogate man-
agement, third parties use it to protect their own interests:

Under the present system of “Estate Management by Preemption” we divest

the incompetent of control of his property upon the finding of the existence
of serious mental illness whenever divestiture is in the interest of some third
person or institution. The theory of incompetency is to protect the debili-
tated from their own financial foolishness or from the fraud of others who
would prey upon their mental weaknesses. In practice, however, we seek to
protect the interest of others. The state hospital commences incompetency
proceedings to facilitate reimbursement for costs incurred in the care, treat-
ment, and maintenance of its patients. Dependents institute proceedings
to secure their needs. Co-owners of property find incompetency proceed-
ings convenient ways to secure the sale of realty. Heirs institute actions to
preserve their dwindling inheritances. Beneficiaries of trusts or estates seek
incompetency as an expedient method of removing as trustee one who is
managing the trust or estate in a manner adverse to their interests. All of
these motives may be honest and without any intent to cheat the aged, but
none of the proceedings are commenced to assist the debilitated.20

A quasi-experimental study conducted through the Benjamin Rose Institute

addressed the risks of well-meaning intervention, including guardianship, in the
lives of vulnerable older persons, finding that intervention resulted in a higher
rate of institutionalization than for the control group.21 The significant contribu-
tion of elder protective referrals, including guardianship, to institutionalization,
specifically nursing home placement, was revisited in an epidemiologically rigor-
ous fashion and re-confirmed in 2002.22
In 1994, the University of Michigan Center for Social Gerontology conducted
a national study that examined the guardianship process intensively in 10 states,
finding that: only about 1/3 of respondents are represented by an attorney dur-
ing the guardianship process; medical evidence is present in the court file in most
cases, but medical testimony is rarely presented at the hearing; the majority of
hearings are very brief, with 25 percent being less than 5 minutes long; some
94 percent of guardianship requests are granted by the court; and only 13 percent
of the orders place limits on the guardian’s authority.23
 INTRODUCTION 5

Recent Developments
Significant events over the past several years have refocused public attention
on the nation’s adult guardianship system. In 2001, seven national groups con-
vened a second national guardianship conference (the Wingspan Conference) to
assess progress on reform. The conference resulted in recommendations for ac-
tion on mediation, the role of counsel, the use of limited guardianship, fiduciary
and lawyer liability, and guardian accountability.24 In 2004, many groups recon-
vened to develop specific steps for the implementation of selected Wingspan
recommendations.25
Meanwhile, in 2002, a District of Columbia court of appeals overturned a
lower court decision, In re Orshansky,26 that highlighted critical guardianship is-
sues. This case and other guardianship rumblings prompted a U.S. Senate Com-
mittee on Aging hearing in 2003, “Guardianships Over the Elderly: Security
Provided or Freedoms Denied,”27 which, in turn, prompted a study by the U.S.
Government Accountability Office (GAO). The GAO study, Guardianship: Col-
laboration Needed to Protect Incapacitated Elderly People, included findings on
variations in guardianship oversight, lack of data on guardianship proceedings
and IPs, problematic interstate guardianship issues, and lack of coordination
between state courts handling guardianship and federal representative payment
programs.28
In 2005, Quinn produced a comprehensive text about guardianship for com-
munity health and social services practitioners.29 Also in 2005, the Los Angeles Times
published a comprehensive series titled Guardians for Profit, highlighting problems
with professional conservators in Southern California,30 which sparked state legis-
lative action in 2006. A survey by Karp and Wood in 2006 found continued wide
variation in guardianship monitoring practices, a frequent lack of guardian report
and accounts verification, limited visitation of individuals under guardianship, and
minimal use of technology in monitoring.31 In 2007, the National Conference of
Commissioners on Uniform State Laws produced the UGPPA.32 States continued
to make changes in their laws, with at least 14 states passing a total of 27 adult
guardianship bills in 2007, and 15 states passing 18 adult guardianship bills in
2008.33

P UBLIC G UARDIANSHIP
DeÞnition and Overview
An important subset of guardianship is public guardianship, which provides
a last resort when there is no one willing or appropriate to help—usually for
some at-risk, low-income incapacitated adults. A public guardian is an entity
that receives most, if not all, of its funding from a governmental entity. Public
guardianship programs are funded through state appropriations, Medicaid funds,
county monies, legislated fees from the IP, or some combination of these. Public
guardianship programs may serve several distinct populations: (1) older IPs who
6 PUBLIC GUARDIANSHIP

have lost decisional capacity, (2) individuals with mental retardation and/or devel-
opmental disabilities who may never have had decisional capacity, and (3) adults
of all ages with mental illness or brain injury.
State public guardianship programs are operated from a single statewide of-
fice, or have local or regional components. They are either entirely staff-based
or may operate using both staff and volunteers. Public guardians may serve as
guardian of the property, guardian of the person, and sometimes as a representa-
tive payee or other surrogate decision-maker. They can also provide case man-
agement, financial planning, public education, social services, adult protective
services (APS), or serve as guardian ad litem (GAL), court investigators, and/or
advisors to private guardians.

Empirical Research
As with private guardianship, few published studies exist on the need for
public guardianship and on the operation of public guardianship programs. In
1987, Schmidt and Peters studied the unmet need for guardians in Florida and
found over 11,000 individuals in need, typically female, elderly, and predomi-
nantly white, with many having both medical and psychiatric conditions.34 In
1990, Hightower, Heckert, and Schmidt assessed the need for public limited
guardianship, conservator, and other surrogate mechanisms among elderly nurs-
ing home residents in Tennessee and found over 1,000 residents needing a surro-
gate decision maker.35 A 2000 report by Florida’s Statewide Public Guardianship
Office stated that the need for public guardianship was approaching crisis pro-
portions and estimated that 1.5 guardianships were needed per 1,000 people in
the population.36
In comparison, Schmidt reported that the overall guardianship annual filing
rate ranged from 1 of every 1,785 (.056 percent) for Florida in 1977, to 1 of
every 1,706 (.059 percent) for 6 states (Delaware, Minnesota, North Carolina,
Ohio, Washington, and Wisconsin) in 1979,37 and half a million people total
under guardianship in the United States in 1995.38 Kroch most recently reported
the ratios of the international population adjudicated with guardianship and
trusteeship orders ranging from 0.444 in Alberta, Canada in 2003, to 0.459 for
Israel, 0.625 for Austria, 0.721 for Ontario, Canada, 0.850 in Switzerland, and
1.345 in Germany.39
Schmidt and colleagues conducted the landmark national study of public guard-
ianship, published in 1981. The study sought to “assess the extent to which pub-
lic guardianship assists or hinders older persons in securing access to their rights,
benefits, and entitlements.”40 The study reviewed existing and proposed public
guardianship laws in all states and focused intensively on the most active and ex-
perienced states (Arizona, California, Delaware, Maryland, and Illinois), as well as
one state without public guardianship (Florida, which has since enacted a public
guardianship statute). Using Regan and Springer’s taxonomy, Schmidt classified
 INTRODUCTION 7

public guardianship programs into the following models: (1) court, (2) indepen-
dent state office, (3) division of a social service agency, and (4) county.
The study findings focused on the individuals served, program characteris-
tics (staff size and qualifications), funding, legal basis, due process safeguards,
oversight, and other areas. The study confirmed the need for public guardian-
ship. However, it stated that “public guardianship offices seem to be understaffed
and underfunded, and many of them are approaching the saturation point in
numbers.”41 The study found that, consequently, many IPs received little per-
sonal attention, and noted that there were identified instances of abuse. A core
conclusion for the extent to which public guardianship assists or hinders legally
incapacitated people in securing access to their rights, benefits, and entitlements
was expressed as follows:

The success of public guardianship is dependent upon several clear consid-

erations. The public guardian must be independent of any service provid-
ing agency (no conflict of interest), and the public guardian must not be
responsible for both serving as guardian, and petitioning for adjudication
of incompetence (no self-aggrandizement). The public guardian must be
adequately staffed and funded to the extent that no office is responsible for
more than 500 wards, and each professional in the office is responsible for
no more than thirty wards. A public guardian is also only as good as the
guardianship statute governing adjudication of incompetence and appoint-
ment. Failure of any of these considerations will tip the benefit burden
ratio against the individual ward, and the ward would be better off with no
guardian at all.42

In 1995, Schmidt followed this seminal research with a focused examina-

tion of public guardianship, collected in Guardianship: Court of Last Resort
for the Elderly and Disabled.43 In 2003, Teaster studied the role of the public
guardian from the viewpoint of public administration through contact with
public guardian offices in four states (Delaware, Maryland, Tennessee, and
Virginia).44
Evaluative studies of public guardianship were conducted in three states:
Florida, Virginia, and Utah. First, in 1988, Schmidt examined the evolution of
public guardianship in Florida and found that the volunteer model required sig-
nificant staff time for volunteer management, at the cost of providing direct ser-
vice to IPs.45 Second, in the mid-1990s, the Virginia Department for the Aging
contracted for two pilot public guardianship programs. A program evaluation
compared the staff versus volunteer models and collected information on pub-
lic guardianship functions and clients, using much the same model pioneered
by Schmidt in Florida.46 The evaluation found the pilots to be viable.47 Third,
in 2002, a legislatively mandated evaluation of 10 Virginia projects by Teaster
and Roberto collected detailed information on program administration, client
8 PUBLIC GUARDIANSHIP

characteristics, and needs. The study determined that the programs were per-
forming reasonably well and recommended an extension of the geographic reach
to cover all areas of the state. Other recommendations addressed the need for
rigorous standardized procedures and forms for client assessment, care plans,
guardian time accounting, regular program review of these documents, the need
for an established guardian-to-client ratio, increased fiscal support, and greater
attention to meeting the needs outlined in the care plans. Importantly, the
study determined that the public guardianship program saved the state a total
of over $2,600,000 for each year of the evaluation period through placements
in less restrictive settings and the recovery of assets (at a total program cost of
$600,000).48 Fourth, when the Utah legislature created a public guardian office
in 1999, it required an independent program evaluation by 2001. The evaluation
included on-site visits, interviews, and case file reviews. The study recommended
additional resources and staff, a continued location within the Department of
Human Services, the development of a unified statewide system, and a system in
which the office would not act as petitioner, as well as additional record-keeping,
and educational suggestions.49

J USTIFICATION
As this national public guardianship study was being proposed, there was
widespread agreement among experts in the aging and disability fields regarding
the need for increased attention to guardianship practices in general and public
guardianship in particular. The 2001 national Wingspan Conference on guardian-
ship50 recommended that “research be undertaken to measure successful practices
and to examine how the guardianship process is enhancing the well-being of per-
sons with diminished capacity.” Specifically concerning public guardianship, the
recommendations urged that “states provide public guardianship services when
other qualified fiduciaries are not available;” that “the public guardianship func-
tion [should] include broad-based information and training; ” that “guardianship
agencies [ . . . ] should not directly provide services, such as housing, medical care,
and social services to their own wards, absent court approval and monitoring;”
and that “funding for development and improvement of public [ . . . ] guardian-
ship services should be identified and generated.”
Despite substantial social and demographic changes since the 1981 Schmidt
study, only a handful of state and local studies had examined the institution of
public guardianship until the 2005 national study.

R ESEARCH M ETHODS
A detailed elaboration of the research methods used for the first national study
of public guardianship in 25 years is beyond the scope of this book. Specific de-
scriptions of the research methods are available elsewhere.51
 INTRODUCTION 9

The purpose of the 2005 national public guardianship study was to update the
1981 study conducted by Schmidt and colleagues, which assessed the extent to
which public guardianship assists or hinders older persons in securing access to
their rights, benefits, and entitlements. Like its 1981 predecessor, this study used
multiple case studies to clarify the face of public guardianship. To improve the
science of the study, the original data-gathering instruments (i.e., surveys) were
refined, and disciplines from which the pool of informants was gathered were
increased. This approach is consistent with the iterative nature of qualitative in-
quiry.52 Using Schmidt’s 1981 effectiveness criteria as a baseline against which to
measure, this study attempted to discover how public guardianship had changed
since the original study.
To replicate the original study, the public guardianship programs in Arizona
(Maricopa and Pima counties), California (Los Angeles and San Bernardino
counties), Delaware, Florida, Illinois, and Maryland were investigated. Devia-
tion from the original study occurred in one instance; the original study included
Alameda County in California. Although letters of support were obtained from
the public guardianship program in Alameda County, Alameda withdrew after
funding was awarded.53
Before presenting the examination of the individual states, Chapter 2 ana-
lyzes the legal basis for public guardianship and the state public guardianship
statutes.

N OTES
1. Parens patriae is the alleged authority of a sovereign to act as “the general guard-
ian of all infants, idiots and lunatics” (English common law terminology). Hawaii v.
Standard Oil Co. of California, 405 U.S. 251, 257 (1972) (quoting three W. Blackstone,
Commentaries *47). For a more detailed note on the etiology for parens patriae, ranging
from a 17th-century printer’s error, to a rationalization to exclude juveniles from con-
stitutional protection, to the confinement of persons with mental illness and protective
services for the elderly, see, for example, Winsor Schmidt, “A Critique of the American
Psychiatric Association’s Guidelines for Legislation on Civil Commitment of the Mentally
Ill,” New England Journal on Criminal and Civil Confinement 11, no. 1 (1985): 14–15,
note 20. Cf. O’Connor v. Donaldson, 422 U.S. 563, 583–584 (1975) (Burger, C. J., con-
curring) (“The existence of some due process limitations on the parens patriae power does
not justify the further conclusion that it may be exercised to confine a mentally ill person
only if the purpose of the confinement is treatment”).
2. Nancy Dubler quoted in Naomi Karp and Erica Wood, Incapacitated and Alone:
Health Care Decision-Making for the Unbefriended Elderly (Washington, DC: American
Bar Association Commission on Law and Aging, 2003), 1.
3. Cf. Peter Conrad and Joseph Schneider, Deviance and Medicalization: From
Badness to Sickness (Philadelphia: Temple University Press, 1992); Nicholas Kittrie, The
Right to Be Different: Deviance and Enforced Therapy (Baltimore: Johns Hopkins Press,
1971). See also Sandra Reynolds, “Guardianship Primavera: A First Look at Factors As-
sociated with Having a Legal Guardian Using a Nationally Representative Sample of
10 PUBLIC GUARDIANSHIP

Community-Dwelling Adults,” Aging and Mental Health 6, no. 2 (2002): 109 (“Particu-
larly for older adults, increasing age, having physical or emotional limitations, a small
family network, and not living with a spouse are associated with having a guardian”).
4. Annina Mitchell, “Involuntary Guardianship for Incompetents: A Strategy for
Legal Services Advocates,” Clearinghouse Review 12, no. 8 (1978): 466. See also Kent
Miller, Managing Madness: The Case Against Civil Commitment (New York: Free Press,
1976).
5. Winsor Schmidt et al., Public Guardianship and the Elderly (Cambridge, MA:
Ballinger Publishing Company, 1981).
6. Pamela Teaster et al., Wards of the State: A National Study of Public Guardianship
(Lexington, KY: University of Kentucky Graduate Center for Gerontology, 2005). The
data for the study were collected in 2004.
7. Ibid.
8. Portions of this section are based on Pamela Teaster et al., “Wards of the State:
A National Study of Public Guardianship,” Stetson Law Review 37, no. 1 (2007): 193–241
(describes the Phase I national study and results). Courtesy of the Stetson Law Review.
9. In most states, a finding of legal incapacity restricts or takes away the right to:
make contracts; sell, purchase, mortgage, or lease property; initiate or defend against suits;
make a will, or revoke one; engage in certain professions; lend or borrow money; appoint
agents; divorce, or marry; refuse medical treatment; keep and care for children; serve on
a jury; be a witness to any legal document; drive a car; pay or collect debts; and manage
or run a business. Robert Brown, The Rights of Older Persons (New York: Avon Books,
1979), 286.
10. Fred Bayles and Scott McCartney, Guardians of the Elderly: An Ailing System (As-
sociated Press Special Report, Sept. 1987). See also Winsor Schmidt, “Guardianship of
the Elderly in Florida: Social Bankruptcy and the Need for Reform,” in Winsor Schmidt,
ed., Court of Last Resort for the Elderly and Disabled 6 (Durham, NC: Carolina Academic
Press, 1995), 6: “The loss of any one of these rights can have a disastrous result, but taken
together, their effect is to reduce the status of an individual to that of a child, or a nonper-
son. The process can be characterized as legal infantalization.”
11. John Regan and Georgia Springer, U.S. Senate Special Committee on Aging,
Protective Services for the Elderly: A Working Paper. (Washington, DC: GPO, 1977), 27.
12. George Alexander and Travis Lewin, The Aged and the Need for Surrogate Man-
agement (Ithaca, NY: Cornell University Press, 1972); Margaret Blenkner, Martin Bloom,
and Margaret Nielsen, “A Research and Demonstration Project of Protective Services,”
Social Casework 52, no. 8 (1971): 483–499; Margaret Blenkner et al., Final Report: Protec-
tive Services for Older People: Findings from the Benjamin Rose Institute Study (Cleveland,
OH: Benjamin Rose Institute, 1974). Cf., for example, “Experience should teach us to
be most on our guard to protect liberty when the Government’s purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-
meaning but without understanding.” Olmstead v. United States, 277 U.S. 479 (1928)
(Brandeis, J., dissenting).
13. Peter Horstman, “Protective Services for the Elderly: The Limits of Parens
Patriae,” Missouri Law Review 40, no. 2 (1975): 215–236; Mitchell, 451–468; Roger
Peters, Winsor Schmidt, and Kent Miller, “Guardianship of the Elderly in Tallahassee,
Florida,” The Gerontologist 25, no. 5 (1985): 532–538; Regan and Springer, op. cit.; Win-
 INTRODUCTION 11

sor Schmidt, “Guardianship of the Elderly in Florida: Social Bankruptcy and the Need
for Reform,” Florida Bar Journal 55, no. 3 (1981): 189–195; Erica Wood, Statement of
Recommended Judicial Practices on Guardianship Proceedings for the Aging (Washington,
DC: American Bar Association Commission on Legal Problems of the Elderly and Na-
tional Judicial College: 1986); National Conference of Commissioners on Uniform State
Laws, Uniform Guardianship and Protective Proceedings Act (1982); The Center for Social
Gerontology, Guidelines for Guardianship Service Programs (Ann Arbor, MI: Center for
Social Gerontology: 1986).
14. Bayles and McCartney, Guardians of the Elderly.
15. U.S. House of Representatives, Select Committee on Aging, Abuses in Guard-
ianship of the Elderly and Infirm: A National Disgrace (GPO Committee Publication No.
100-641: 1987).
16. American Bar Association Commission on the Mentally Disabled and Commission
on Legal Problems of the Elderly, Guardianship: An Agenda for Reform—Recommendations of
the National Guardianship Symposium and Policy of the American Bar Association (Washing-
ton, DC: American Bar Association: 1989).
17. See state statutory charts on adult guardianship, as well as the annual update, on
the Web site of the ABA Commission on Law and Aging at http://www.abanet.org/aging/
legislativeupdates/home.shtml.
18. National Conference of Commissioners on Uniform State Laws, http://www.
law.upenn.edu/bll/archives/ulc/ugppa/guardsh2.htm.
19. For example, Frank Johns, “Guardianship Folly: The Misgovernment of Parens
Patriae and the Forecast of Its Crumbing Linkage to Unprotected Older Americans in the
Twenty-First Century—A March of Folly? Or Just a Mask of Virtual Reality,” Stetson Law
Review 27, no. 1 (1997): 1–93.
20. Alexander and Lewin, The Aged and the Need for Surrogate Management, 136.
21. Blenkner, Bloom, and Nielsen, “A Research and Demonstration Project”; Blenk-
ner, Bloom, Nielsen, and Weber, Protective Services for Older People.
22. Mark Lachs, Christianna Williams, Shelly O’Brien, and Karl Pillemer, “Adult
Protective Service Use and Nursing Home Placement,” The Gerontologist 42, no. 6 (2002):
734–739 (“[I]t is remarkable that controlled studies of differential outcomes of APS have
not been conducted. A review of the literature shows no systematic attempt to evaluate
program outcomes or to examine unintended consequences of APS intervention”). See
also Sandra Reynolds and L. Carson, “Dependent on the Kindness of Strangers: Profes-
sional Guardians for Older Adults Who Lack Decisional Capacity,” Aging and Mental
Health 3, no. 4 (1999): 301–310 (“Wards with family guardians were more likely to be
living in the community than those with professional guardians”).
Cf., for example, Robert Davis and Juanjo Medina-Ariza, Results from an Elder Abuse
Prevention Experiment in New York City (National Institute of Justice: Sept. 2001) (“New
incidents of abuse were more frequent among households that both received home visits
and were in housing projects that received public education”) at http://www.ojp.usdoj.
gov/nij. See also Winsor Schmidt, “Quantitative Information About the Quality of the
Guardianship System: Toward a Next Generation of Guardianship Research,” Probate
Law Journal 10 (1990): 61–80.
23. Lauren Lisi, Anne Burns, and Kathleen Lussenden, National Study of Guardian-
ship Systems: Findings and Recommendations (Ann Arbor, MI: Center for Social Gerontol-
ogy: 1994).
12 PUBLIC GUARDIANSHIP

24. Symposium, “Wingspan—The Second National Guardianship Conference,”

Stetson Law Review 31, no. 3 (2002): 573–1055.
25. National Academy of Elder Law Attorneys, National Guardianship Association,
and National College of Probate Judges, 2004 National Wingspan Implementation Ses-
sion: Action Steps on Adult Guardianship Reform (2004): http://www.guardianship.org/
associations/2543/files/WingspanReport.pdf.
26. In re Orshansky, 804 A. 2d 1077 (D.C. 2002).
27. U.S. Senate Special Committee on Aging, Guardianship Over the Elderly: Secu-
rity Provided or Freedom Denied? (GPO Serial No. 108-3: 2003).
28. U.S. Government Accountability Office, Guardianships: Collaboration Needed to
Protect Incapacitated Elderly People (GAO-04-655: 2004).
29. Mary Joy Quinn, Guardianships of Adults: Achieving Justice, Autonomy and Safety
(New York: Springer Publishing, 2005).
30. Robin Fields, Evelyn Larrubia, and Jack Leonard, “Guardians for Profit” (a four-
part series), Los Angeles Times (November 13–16, 2005). See also Winsor Schmidt, Fevzi
Akinci, and Sarah Wagner, “The Relationship Between Guardian Certification Require-
ments and Guardian Sanctioning: A Research Issue in Elder Law and Policy,” Behavioral
Sciences and the Law 25, no. 5 (2007): 641 (“83.3% of [General Equivalency Diploma]
or [high school] graduates are likely to have more severe sanctions compared to 76.4%
undergraduate or higher education, and 47.7% with an [Associate of Arts] or [Technical]
degree, respectively. Guardians with an A.A. or Tech degree are 0.28 times less likely to
have more severe sanctions than guardians with an undergraduate degree or higher educa-
tion ( p < 0.01).”) Cf. Carol Leoning, “Misplaced Trust: Special Report,” Washington Post,
June 15–16, 2003; Lise Olsen, “New Payment Guidelines Ease Strain Probate Fees Put
on Elderly, Disabled,” Houston Chronicle, September 4, 2007; Cheryl Phillips, “Secrecy
Hides Cozy Ties in Guardianship Cases,” Seattle Times, December 4, 2006; Denise To-
polnicki, “The Gulag of Guardianship,” Money Magazine, March 1, 1989; Barry Yeoman,
“Stolen Lives,” AARP: The Magazine, January–February, 2004.
31. Naomi Karp and Erica Wood, Guardianship Monitoring: A National Survey of
Court Practices (American Association of Retired Persons [AARP] Public Policy Institute:
2006); Naomi Karp and Erica Wood, Guarding the Guardians: Promising Practices for
Court Monitoring (AARP Public Policy Institute: 2007).
32. National Conference of Commissioners on Uniform State Laws, Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act (2007).
33. Erica Wood, State Adult Guardianship Legislation: Directions of Reform—2006,
http://www.abanet.org/aging/docs/gdlegisupdate0106.doc; Erica Wood, State Adult Guard-
ianship Legislation: Directions of Reform—2008, http://www.abanet.org/aging/legislative
updates/home.shtml.
34. Winsor Schmidt and Roger Peters, “Legal Incompetents’ Need for Guardians
in Florida,” Bulletin of the American Academy of Psychiatry and Law 15, no. 1 (1987):
69–83.
35. David Hightower, Alex Heckert, and Winsor Schmidt, “Elderly Nursing Home
Residents: Need for Public Guardianship Services in Tennessee,” Journal of Elder Abuse
and Neglect 2, no. 3/4 (1990): 105–122.
36. Florida Statewide Public Guardianship Office, Forgotten Faces of Florida (2000).
37. Schmidt, “Guardianship of the Elderly in Florida,” 189.
38. Schmidt, Guardianship: Court of Last Resort, xiii.
 INTRODUCTION 13

39. Uri Kroch, “The Experience of Being A Dependent Adult (Ward)-A Hermeneu-
tic Phenomenological Study” (Ph.D. thesis, University of Calgary, 2009), 57.
40. Schmidt et al., Public Guardianship and the Elderly, 3.
41. Ibid., 172.
42. Schmidt, “Guardianship of the Elderly in Florida,” 192. See also Schmidt et al.,
Public Guardianship and the Elderly, 16–17, 34, 38, 170, 174–175, 183–184, 193.
43. Schmidt, Guardianship: Court of Last Resort.
44. Pamela Teaster, “When the State Takes Over a Life: The Public Guardian as
Public Administrator,” Public Administration Review 63, no. 4 (2003): 396–404.
45. Winsor Schmidt et al., “A Descriptive Analysis of Professional and Volunteer
Programs for the Delivery of Guardianship Services,” Probate Law Journal 8, no. 2 (1988):
125–156 (1988); Winsor Schmidt, “The Evolution of a Public Guardianship Program,”
Journal of Psychiatry and Law 12, no. 3 (1984): 349–372.
46. Winsor Schmidt et al., Second Year Evaluation of the Virginia Guardian of Last
Resort and Guardianship Alternatives Demonstration Project (Memphis: The University of
Memphis Center for Health Services Research, 1997).
47. Pamela Teaster et al., “Staff Service and Volunteer Staff Service Models for Pub-
lic Guardianship and ‘Alternatives’ Services: Who Is Served and With What Outcomes?”
Journal of Ethics, Law, and Aging 5, no. 2 (1999): 131–151.
48. Pamela Teaster and Karen Roberto, Virginia Public Guardian and Conservator
Programs: Summary of the First Year Evaluation (Virginia Department for the Aging,
2002). See also Pamela Teaster and Karen Roberto, Virginia Public Guardian and Conser-
vator Programs: Evaluation of Program Status and Outcomes (Blacksburg: The Center for
Gerontology, Virginia Polytechnic Institute and State University, 2003), pp. 11–16; Pa-
mela Teaster, et al., The Florida Public Guardian Programs: An Evaluation of Program Sta-
tus and Outcomes (Lexington: University of Kentucky Graduate Center for Gerontology,
2009)(cost savings to Florida of over $1.8 million in one year from public guardianship),
http://www.panhandleparade.com/index.php/mbb/article/study_public_guardianship_
programs_save_florida_taxpayers_1.9_million/mbb7718858/.
49. Center for Social Gerontology, Utah Office of Public Guardian: Program Evalua-
tion (Ann Arbor, MI: Center for Social Gerontology, 2001).
50. Symposium, Wingspan Conference.
51. Teaster et al., Wards of the State (2005): i–ii, 6, 61–62; Teaster et al., Public
Guardianship After 25 Years: 5, 21–26.
52. John Creswell, Research Design: Qualitative and Quantitative Approaches (Thou-
sand Oaks, California: Sage Publications, 1994); Matthew Miles and A. Michael Hu-
berman, An Expanded Sourcebook: Qualitative Data Analysis, 2nd ed. (Thousand Oaks,
California: Sage Publications, 1994).
53. The following is the verbatim e-mail response from Alameda County. “I’m sorry,
but our County Counsel indicated to you previously that Alameda County will not be
participating in this survey. Sorry the information did not reach you!” The research team
never received such information from the county counsel. Subsequent entreaties by the
principal investigator and project manager to conduct a limited version of the site visit
went unanswered.
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 Chapter 2

STATE STATUTORY ANALYSIS:

ADULT GUARDIANSHIP AND
PUBLIC GUARDIANSHIP LAW

T
wo adult daughters clashed over the care of their mother. One claimed
that her sister drained the mother’s bank account and neglected her care.
Without checking with anyone, she brought her mother to live with her.
The second daughter disputed the allegations and contended that the move
was abusive. APS filed a petition naming the public guardianship program as
the proposed guardian. What would be the process for appointment? Would
the mother receive notice? Have an attorney? Have rights at the hearing? What
would be the court’s criteria for determining whether the mother is incapaci-
tated and requires a guardian? What would be the criteria for selecting the public
guardianship program? If appointed, what accountability would the program
have to the court? If the mother receives insufficient care and services, to what
extent can the program challenge care providers and zealously advocate for her
interests?

O VERVIEW
This chapter provides a summary analysis of state adult guardianship statutes,
highlighting public guardianship provisions. It includes eligibility, scope, peti-
tioners, investigation and examination, due process protections, rights, powers,
costs, and review and monitoring, and outlines key statutory changes over time.

B ACKGROUND
As with the 1981 study, one of the first tasks of the national public guardian-
ship study was to research state statutes to identify jurisdictions with provisions
for public guardianship. In addition, the new study’s practitioners conducted
statutory research and analysis, constructing a table matching the one established
in the original 1981 work.1 (The 2007 table is broken into five sub-tables for ease
of reading.) The tables (Appendix A), as well as the commentary below (updated
to 2007 unless otherwise indicated), generally use the framework of the 1981
table, thus providing two directly comparative snapshots across 26 years. (How-
ever, the 1981 Schmidt table includes only the 34 states with statutory provisions
16 PUBLIC GUARDIANSHIP

for public guardianship, whereas the current table includes all states.) Both tables
integrate basic elements of state adult guardianship and conservatorship statutes
with more specific provisions concerning public guardianship, as an understand-
ing of public guardianship statutes requires a close look at the state guardianship
codes on which they are based. Indeed,

the public guardian, and the public guardian process, do not exist in isola-
tion . . . [but are] an end point in the process of guardianship, which itself
seems to exist in a continuum of protective services and civil commitment.
In fact, the success of a public guardian seems to be quite dependent upon
the quality of the state’s guardianship statute.2

Public guardianship programs are shaped by the overall contours of the state
guardianship codes that determine the procedures for appointment, the defini-
tion of incapacity, the powers and duties of guardians, and the mechanisms for
judicial oversight. For updated state adult guardianship tables with citations for
each provision, see the Web site of the ABA Commission on Law and Aging at
http://www.abanet.org/aging/guardianship/lawandpractice/home.html.

S TATUTORY P ROVISIONS
Adult guardianship is a state, rather than a federal, function. All states have a
general guardianship code. These laws have undergone significant change in the
past two decades, with particular emphasis on procedural protections, the deter-
mination of capacity, limited guardianship, and court oversight.3 These state laws
provide the foundation for public guardianship.
As of 2007, a total of 44 states4 had specific statutory provisions on public
guardianship. Seven states included no such reference in their code. Public guard-
ianship provisions are most frequently included as a section of the state guardian-
ship code. But in some states, the public guardianship provisions are located in
separate statutory sections, such as, for example, services for the aging, APS, or
services for individuals with disabilities.5
In 1981, Schmidt distinguished between “explicit” and “implicit” public
guardianship provisions:

One can distinguish between explicit public guardianship statutes that spe-
cifically refer to a “public guardian” and implicit statutes that seem to pro-
vide for a mechanism equivalent to public guardianship without actually
denominating the mechanism as “public guardian.” The distinction is often
nominal at best. Although an explicit scheme often indicates a progressive
trend in this field, this is not always true. Indeed, several of the implicit
schemes are even more progressive than the typical explicit statute.6
 STATE STATUTORY ANALYSIS 17

Twenty-six years ago, Schmidt found 26 implicit statutory schemes in 26

states, and 14 explicit schemes in 13 states, with some states having more than
one scheme. In 2007, research shows a total of 18 implicit statutory schemes in
18 states, and 28 explicit schemes in 27 states (with one state having both an
implicit and explicit scheme). Implicit schemes often name a state agency or
employee as a guardian of last resort when there are no willing and responsible
family members or friends to serve.

E LIGIBILITY FOR P UBLIC G UARDIANSHIP

The 1981 Schmidt study found that of the 34 states under analysis, 20 gen-
erally provided public guardianship services for incompetents, 17 provided ser-
vices specifically for individuals with mental retardation who needed a guardian,
19 targeted incapacitated elderly persons, and 11 provided a form of public
guardianship for minors. The majority of public guardianship schemes served
limited categories of beneficiaries. Fewer than half of the 34 states had provisions
to aid 3 or more targeted groups. Schmidt noted that the specific needs of indi-
viduals with mental retardation and elders had “come into focus only recently,”
and that the needs of minors are temporary and could perhaps receive adequate
service through private resources.
In 2005, the overwhelming majority of the state statutes provided for services
to incapacitated individuals who were determined to require guardians under the
adult guardianship law, but who had no person or private entity qualified and
willing to serve. Modern guardianship codes rely more on a functional determi-
nation of incapacity and less on specific clinical conditions. Thus, states are less
likely to segregate specific categories of individuals for service, instead filling the
void created when a judge determines a person is incapacitated but no one is
there to act as guardian.
However, a few statutory provisions do target specific groups of IPs. Four
state statutes limit public guardianship services to IPs who are elderly. Con-
necticut, New Jersey, Tennessee, and Vermont serve only those who are 60 years
of age or older. Four states (Arkansas, Maryland, New York, and Texas) limit
services to those requiring APS, or to those in a state of abuse, neglect, or
exploitation.
Four statutory schemes are designed to aid persons with specific mental dis-
abilities. In California, a specific provision enables the appointment of the county
public guardian for “any person who is gravely disabled as a result of mental dis-
order or impairment by chronic alcoholism.” In Maine, one state agency serves
as the public guardian for persons with mental retardation and another agency
serves for other IPs in need. The Ohio public guardianship statutory scheme
solely targets persons who have mental retardation or developmental disabilities.
In South Carolina, the director of the mental health department or the director’s
18 PUBLIC GUARDIANSHIP

designee may serve as the conservator for patients of mental health facilities
whose fees do not exceed $10,000 per year.
In addition, a number of state statutes specify services for persons with fi-
nancial limitations. Connecticut limits services to those with assets that do not
surpass $1,500. Florida indicates that services are primarily for those of “limited
financial means.” In Indiana, services are for indigent adults, as defined adminis-
tratively. In Illinois, one scheme serves individuals with estates of $25,000 or less
and another serves individuals whose estates are over $25,000. In Virginia, the
public guardianship program serves IPs whose resources are insufficient to fully
compensate a private guardian or pay court costs and fees. In the state of Wash-
ington, under a law enacted in 2007, the office of public guardianship serves
individuals whose incomes do not exceed 200 percent of the federal poverty level
and who are receiving Medicaid long-term care services. On the other hand,
Mississippi law specifies that the appointment of a clerk as guardian is only for “a
ward who has property.”

S COPE OF P UBLIC G UARDIANSHIP P ROVISIONS

As Schmidt explained, guardianship terminology differed by state in 1981,
and still does, creating confusion in terms of statutory comparisons. The
Schmidt study cautions that a careful reading of state guardianship code defini-
tions is required to determine the scope of public guardianship services. Today,
the UGPPA7 makes a clear distinction between “guardianship” of a person and
“conservatorship” of property, and close to 20 states have adopted this distinc-
tion. But state terminology still varies considerably.
In Schmidt’s study, only one state with public guardianship provisions, Wyo-
ming, did not clearly provide for public guardianship of both person and prop-
erty. Today, all but four state laws specify that the public guardian program can
provide services as both the guardian of the person and the estate. Two states
appear to cover property only: Alabama provides for the appointment of a gen-
eral county conservator or sheriff; and South Carolina allows the director of the
mental health department to serve as the conservator for limited amounts. One
state, Arkansas, authorizes APS to provide “custodian” services of the person only
and to identify a guardian for the estate if necessary.
In many states, there is no specific provision in the public guardianship statute
granting or restricting services, but reliance on the overall guardianship code af-
fords coverage of both. (In some states, program services are limited by rule or
by practice. For example, in Maryland, the area agencies on aging serve as public
guardians of the person only.) Schmidt observed that in many states, there was only
a cursory mention of guardianship of the person: the emphasis was on providing
for property management. This is less true today (at least on paper), as guardian-
ship codes have changed to more clearly delineate the duties of the guardian of
the person in procuring services and benefits, as well as in maximizing autonomy.
 STATE STATUTORY ANALYSIS 19

P OTENTIAL P ETITIONERS IN G UARDIANSHIP P ROCEEDINGS

The process of appointing a public guardian generally begins with the filing of
a petition in the court of appropriate jurisdiction. The 1981 study found that at
least 26 of 34 states studied permitted a relative or interested person to petition,
and that 12 states allowed the proposed ward to file.
Today, virtually all states allow any person, including the alleged IP, to file,
with many listing a string of categories of potential filers ending with the catch-
all “or any person”, in some cases, “any interested person.” Such provisions are in
line with the UGPPA, which allows “an individual or a person interested in the
individual’s welfare” to file. This could include both public and private guardian-
ship agencies, raising the specter of possible conflict of interest.
Indeed, a question central to the operation of any public guardianship pro-
gram is whether the program can petition to have itself appointed guardian.
Such petitioning could present several conflicts of interest.8 First, if the program
relies on fees for its operation, or if its budget is dependent on the number of
individuals served, the program might petition more frequently, regardless of
individual needs. On the other hand, the program might, as Schmidt points out,
“only petition for as many guardianships as it desires, perhaps omitting some
persons in need of such services.” It could also cherry pick, petitioning only for
those individuals who are the easiest or least costly and time-consuming to serve.
The Schmidt study did not specifically address statutory provisions that allow
the public guardianship agency to petition for its own wards. Today, statutes in
12 states explicitly allow this. Only two states (Vermont and Washington) explic-
itly prohibit the public guardianship agency from petitioning for its own IPS; the
remaining statutes do not address the issue.

I NVESTIGATION OF I NDIVIDUALS IN N EED

The 1981 study included a section on state approaches toward “discovering
the identity of those individuals who are in need of public guardianship services.”9
The study pointed out that this problem was addressed in “only a handful of
states” through an investigative body or professional reporting laws.
Today, the landscape has changed completely. Every state has enacted and
administers an APS law10 with: reporting requirements for various professions;
investigation of possible abuse, neglect, or exploitation; and mechanisms to ad-
dress the problems of at-risk adults, including the initiation of a guardianship.
Indeed, in many cases, APS programs are a primary referral source for public
guardianship programs. Because of these developments in APS, as well as the
aging of the population, many more cases are likely to come to the attention of
public guardians than in 1981. (Note that the APS laws are not shown in Table 1,
but statutory charts are available on the Web site of the ABA Commission on
Law and Aging at: http://www.abanet.org/aging/about/elderabuse.shtml.)
20 PUBLIC GUARDIANSHIP

D UE P ROCESS P ROTECTIONS
IN G UARDIANSHIP P ROCEEDINGS
In the quarter century since the Schmidt study, state procedural protections
for respondents in guardianship proceedings have undergone a paradigm shift,
with virtually all states bolstering the requirements for due process protections.
Schmidt discovered that 5 of the 34 states studied made no provision for a hear-
ing. Today, all states provide for a hearing. In 1981, 29 of the states studied
required notice to the respondent, as well as to family members and other inter-
ested parties. Today, all states require notice. Moreover, many state notice provi-
sions now require large print and plain language, as well as information about
hearing rights and the rights potentially lost as the result of the hearing. In ad-
dition, states generally maintain that the respondent has a right to be present at
the hearing. An increasing number go beyond this entitlement to require the
respondent’s presence unless it would be harmful or there is other good cause for
his or her absence. Courts today are subject to the provisions of the Americans
with Disabilities Act, which call for reasonable accommodations at the person’s
request.

Right to counsel. A key to providing procedural due process for respondents

in guardianship proceedings is representation by counsel. Approximately 22
of the states studied in 1981 provided a right to counsel during guardianship
proceedings. Today, there is a growing recognition of the right to counsel as an
empty promise for a vulnerable indigent individual. Thus, over 25 states require
the appointment of counsel, generally making counsel available without charge
to indigent respondents. The remaining states allow a right to counsel or, in a few
instances, do not address the issue. Some states require appointment only under
designated circumstances: if the respondent requests counsel, if the GAL recom-
mends it, or if the judge determines that counsel is necessary.

Free counsel for indigents. In 1981, 17 states made counsel available free
of charge to indigent persons. Today, over 20 states provide for such free counsel
in their guardianship statutes, and there may be additional states with relevant
provisions in other parts of the code.

Right to jury trial. Eleven of the states studied in 1981 gave the individual the
opportunity to have a trial by jury. Today, 27 states provide for trial by jury if the
respondent requests it. It is particularly notable that Kentucky makes a jury trial
mandatory in every adult guardianship case.

Right to cross-examine. In 1981, only nine states made explicit provisions

for the respondent or counsel to cross-examine any witnesses who testify against
the alleged IP. This is critical in preserving the integrity of the hearing process.
 STATE STATUTORY ANALYSIS 21

Today, 35 state guardianship statutes provide for this important right, and there
are probably additional states with relevant provisions in the rules of evidence or
civil procedure.

Standard of proof. The Schmidt study found only a couple of states that used
a “clear and convincing evidence” standard of proof. Today, a total of 36 states
require clear and convincing proof that the respondent lacks decisional capacity
and requires a guardian. One state (New Hampshire) uses a standard of “beyond
a reasonable doubt”; two (North Carolina and Washington) use a standard of
“clear, cogent, and convincing evidence”; one (Wyoming) uses a mere “prepon-
derance of the evidence”; two (Idaho and South Carolina) state that the court
must be “satisfied” that a guardian is necessary; and the remaining eight states
provide no statutory standard.

Appeal/review. In 1981, only three of the states provided a direct and immedi-
ate review of the findings of a guardianship proceeding. Today, some 29 states
refer to an appeal or review within their guardianship statutes. However, there
may be additional states with relevant provisions in the rules of civil procedure.

E XAMINATION OF THE A LLEGED

I NCAPACITATED I NDIVIDUAL
Clinical examinations provide important evidence for judicial determina-
tions.11 Schmidt found that in 1981, over half of the 34 states studied required
a medical examination prior to the determination of the need for a guardian,
14 provided for a psychological examination, and 10 provided for other examina-
tions. He also noted that some states required a more comprehensive capacity-
specific assessment.
Today, at least 40 states refer to examination by a physician and 31 specifically
include a psychologist. Other examiners named by state statutes include psychia-
trists, mental health professionals, social workers, nurses, and “other qualified
professionals.” The UGPPA calls for examination by “a physician, psychologist,
or other individual appointed by the court who is qualified to evaluate the respon-
dent’s alleged impairment.” A growing number of states provide a comprehensive,
interdisciplinary team approach. For instance, Florida uses a three-member exam-
ining committee; Kentucky calls for an interdisciplinary evaluation by a physician,
psychologist, and social worker; North Carolina alludes to a “multi-disciplinary
evaluation;” and Rhode Island sets out a detailed clinical assessment tool.12

T HE R IGHTS OF I NCAPACITATED P ERSONS

One aspect examined by Schmidt et al. in 1981 was the preservation of in-
dividual civil rights under guardianship. Some fundamental rights (such as the
22 PUBLIC GUARDIANSHIP

right to vote) are personal in nature and not delegable to the guardian. Thus,
they are either retained or lost under guardianship, but not transferred. Other
fundamental rights are delegable, but state law may include a presumption that
the individual retains them unless they are specifically removed in the court
order (see the section on limited guardianship below). Schmidt found that only
10 state statutes explicitly preserved the civil liberties of IPs.
Today, 27 state laws include a provision designed to preserving basic rights.
For example, such a provision may state that the individual under guardian-
ship “retains all legal and civil rights except those which have been expressly
limited by court order or have been specifically granted by order to the guard-
ian by the court.” Florida has one of the most extensive provisions, setting out
the rights retained by the individual (such as the right to retain counsel, to
receive visitors and communicate with others, to privacy); rights that may be
removed by court order, but not delegated to the guardian (such as the right to
marry, vote, have a driver’s license); and rights that are removable and delega-
ble to the guardian (such as the right to contract, to sue, and to defend against
lawsuits).

W HO S ERVES AS G UARDIAN
Guardians are family members, other individuals, professionals, private non-
profit or for-profit agencies, or public guardianship entities. In 1981, Schmidt
found that about one-third of the states used “the usual probate priority scheme,”
that is, a hierarchy that provides for the appointment of a spouse, adult child,
parent, or other relative. Such a list often states that any suitable person or insti-
tution may serve, and that the court should make the selection in the best interest
of the incapacitated individual.
Today, most states continue to offer such a hierarchical scheme, building suf-
ficient court discretion to act in the IP’s best interest. In addition, 43 states in-
clude a mechanism for the input of the IP in the form of advance nomination
of a guardian, the most recent nomination of an agent under a durable power
of attorney “in accordance with the IP’s stated wishes,” or the “person preferred
by IP.”
A recent examination of APS laws found that approximately 11 states specifi-
cally allow the APS agency to serve as the guardian of an APS client, either on a
temporary or permanent basis.13

G OVERNMENTAL L OCATION OF P UBLIC G UARDIANSHIP

Perhaps the most fundamental issue that arises in analyzing public guardian-
ship statutes is: where in the governmental administrative structure is the public
guardianship function placed? This question was a basic element of both the
 STATE STATUTORY ANALYSIS 23

1981 study and the project’s national survey. As explained above, an important
distinction evident in comparing the statutory schemes is between states that
merely name a state agency or employee as a last resort guardian (generally, im-
plicit schemes) and states that establish an office with the sole mandate of serv-
ing as public guardian (generally, explicit schemes). States that establish a public
guardianship office (such as Delaware, Florida, Virginia, New Jersey, Utah, and a
number of others), have detailed statutory provisions on powers and duties, staff-
ing, funding, record keeping, and review.
Schmidt relied on an earlier classification by Regan and Springer using four
models: (1) a court model; (2) an independent state office; (3) a division of a
social service agency; and (4) a county agency. He noted, however, that while the
four models “at first appeared to provide a useful classification,” upon further
analysis, there were “many exceptions and variations” and that “few states fit the
exact organization described in the models.” This study uses the same classifica-
tion, with the same caveat.

Court model. The court model establishes the public guardianship office as an
arm of the court that has jurisdiction over guardianship and conservatorship.
In 1981, there were six states with a court model for public guardianship. In
2007, statutory provisions revealed five. In Delaware, Hawaii, Mississippi, and
Washington, the public guardian is located in the judiciary. In Georgia, recent
legislation created a public guardianship program in which qualified and trained
individuals are approved and registered by the county probate court to serve as
public guardians, yet the training, administration, and funding of the program
is conducted through the Division of Aging in the Department of Human Re-
sources, which must maintain a master list of registered public guardians.

Independent agency model. The independent state office model is one in

which the public guardianship office is established in an executive branch of
the government that does not provide direct services for IPs or potential IPs.
Schmidt found three independent state offices. Today, statutory provisions show
four states that approximate this model: Alaska, in which the office is located in
the Department of Administration; Illinois, in which the Office of State Guard-
ian (one of the state’s two schemes) is located in the guardianship and advocacy
commission; Kansas, in which the Kansas Guardianship Program is independent,
with a board appointed by the governor; and New Mexico, in which the office of
guardianship is in the developmental disabilities planning council.

Social service agency. The placement of the public guardianship function in

an agency providing direct services to IPs presents a clear conflict of interest. The
1981 study explained that:
24 PUBLIC GUARDIANSHIP

The agency’s primary priority may be expedient and efficient dispersal of its
various forms of financial and social assistance. This can be detrimental to
the effectiveness of the agency’s role as guardian. If the ward is allocated in-
sufficient assistance, if payment is lost or delayed, if assistance is denied alto-
gether, or if the ward does not want mental health service, it is unlikely that
the providing agency will as zealously advocate the interests of that ward.14

Schmidt found that over one-half of the states studied configured the public
guardianship function in a manner that presented a conflict of interest between
the role of guardian (deciding on, monitoring, and advocating for services) and
the role of the social services agency (providing services). That is largely still true
today. The percentage of states with statutes providing a potential for conflict
appears to have increased. More than half of the 44 states with public guard-
ianship statutory provisions name a social service, mental health, disability, or
aging services agency as guardian, or as the entity to coordinate or contract for
guardianship services. For example, Connecticut names the Commissioner of So-
cial Services. New Hampshire authorizes the Department of Health and Human
Services to contract for public guardianship services. Vermont, Virginia, Florida,
and other states charge the Department on Aging with the administration of the
public guardianship program.
Schmidt noted that some of the states with potential conflicts of interest had
sought to alleviate the problem within the statutory scheme, for example, by stat-
ing that the agency is not to serve unless there is no other alternative available.
The majority of statutes include such language today. Moreover, most specify
that a key duty of the public guardian is to attempt to find suitable alternative
guardians. In Florida, the statewide Office of Public Guardian must report on
efforts to find others to serve within six months of appointment. A few statutes
include more specific language addressing conflict of interest. For instance, the
Illinois Office of State Guardian may not provide direct residential services to le-
gally IPs. North Dakota allows the appointment of any appropriate government
agency, unless the agency provides direct care and has custody of the IP (except
if the court offers the specific finding of no substantial risk). Indiana requires
that regional guardianship programs have procedures to avoid conflict of inter-
est in providing services. Montana prohibits the appointment of guardians who
provide direct services to the IP, but makes an exception for the agency serving in
the public guardianship role.

County model. Approximately 13 of the statutory schemes place the public

guardianship function at the county level, and a number of others have designed
programs coordinated at the state level but carried out administratively or by
contract at the local or regional level. For example, in Arizona, the county board
of supervisors appoints a public fiduciary, and in California, the county board
creates an office of public guardian. In Idaho, the board of county commissioners
 STATE STATUTORY ANALYSIS 25

creates a “board of community guardian.” In Missouri, the county public admin-

istrators serve as public guardians.

T HE P OWERS OF THE G UARDIAN

AND P UBLIC G UARDIAN

Every state guardianship code sets out an array of duties and powers for the
guardians of the person and the estate. In some states, guardians have a great deal
of flexibility in their authority to sell property, invest assets, make major health
care or end-of-life decisions, or relocate the individual, while in other states,
guardians must obtain a court order to take some of these actions.
Public guardianship statutes generally provide that the public guardian has
the same duties and powers as any other guardian. However, many of the stat-
utes list additional duties and powers for public guardianship programs. For
example, mandatory duties may include specifications about visits to the IP.
At least eight states dictate the frequency of public guardianship IP visits or
contacts. A few states require the public guardianship program to take other
actions, such as developing individualized service plans, making periodic reas-
sessments, visiting the facility of proposed placement, and attempting to secure
public benefits.
Most of the additional listed duties, though, are programmatic in nature. Stat-
utes may require the public guardianship entity to maintain professional staff;
contract with local or regional providers; assist petitioners, private guardians,
or the court; provide public information about guardianship and alternatives;
contract for evaluations and audits; and maintain records and statistics. Public
guardianship statutes frequently set out additional powers, as well as duties, for
example, the authority to contract for services, recruit and manage volunteers,
and intervene in private guardianship proceedings, if necessary.

T ERMINATION OF G UARDIANSHIP AND R ESTORATION

The Schmidt study discussed guardianship termination, indicating that 20 of
the states studied had an explicit termination mechanism. The most common
reason for termination, of course, is the death of the IP. Additional reasons cited
by Schmidt include restoration to capacity or, in some cases, other changes, such
as exhaustion of the person’s estate or the institutionalization of the IP.
Today, the UGPPA provides that a guardianship may terminate upon the death
of the ward or upon the order of the court “if the ward no longer needs the assis-
tance or protection of a guardian.”15 The Uniform Act established a procedure for
terminating a guardianship. Virtually all states provide a termination procedure,
including one for the restoration of the rights of the individual. At least 45 states
allow the IP to petition for restoration if a guardian is no longer needed.
26 PUBLIC GUARDIANSHIP

C OSTS OF P UBLIC G UARDIANSHIP

In 1981, the Schmidt study observed that the funding of public guardianship
programs “has not been given much mention in the statutory schemes” and that
the lack of explicit funding may leave programs subject to “the vicissitudes of an
annual budget.” Equally unclear, the study noted, was whether the ward’s estate
or the governmental agency must bear the cost of guardianship services. This
lack of clarity could result in hardship for wards with few resources. The study
found that statutes in 11 of the states said that the agency must bear the cost,
and statutes in 15 states noted that the ward must pay for public guardianship
services.
Today, some 31 of the 44 states with statutory provisions make some mention
of cost. At least 10 states include references to state appropriations. Some states
may have separate statutory provisions for appropriations, but others may not
have made any provisions, leaving the public guardianship program financially
at risk. Florida has especially elaborate provisions, referencing the inclusion of
the program’s annual budget as a separate item in the budget of the Department
of Elderly Affairs’ legislative request; the establishment of a “direct support or-
ganization” to raise funds for the program; and the establishment of a matching
grant program to assist counties in supporting public guardianship. Utah allows
for the acceptance of private donations and Virginia allows local or regional pro-
grams to accept private funds for supplemental services for IPs. At least four states
(Idaho, Illinois in its county program, Nevada, and Oregon) specifically enable
the county to budget for the public guardianship program.
Twenty-four states identify the governmental agency (state or county) as being
responsible for the payment of costs, while 22 reference the estate of the IP. Sev-
enteen hold both the governmental agency and the estate accountable for the
payment of guardianship services, as well as for the costs and fees associated with
the initiation of the guardianship. A common scenario is that the IP’s estate pays,
but if the IP is unable to pay, the county or state makes up the difference. A num-
ber of states mention recovery from the estate after death, and two states (Indiana
and New Jersey) allow for a lien on the estate. Washington facilitates the payment
of guardianship fees from Medicaid funds. Statutes in seven states (Idaho, New
Jersey, Ohio, Oregon, Tennessee, Utah, and Washington) provide either that the
court may, or must, waive filing fees and court costs, at least for indigent IPs.

C OURT R EVIEW OF G UARDIANSHIP

At the time of the 1981 study, guardianship monitoring was fairly rudimen-
tary. Schmidt maintained that “a greater emphasis upon improved review might
effect a significant improvement in the guardianship scheme as a whole.” Schmidt
reported that 20 of the 34 states studied had some provision for review, with
16 providing for an annual report to the court. He also noted that the review
 STATE STATUTORY ANALYSIS 27

provided focused primarily on property, neglecting any examination of the ward’s

condition.
Currently, all states provide for regular financial accountings and, as of 2007,
all but two states (Delaware and Massachusetts) provided regular status reports
on the personal well being of the IP (but in 2009, Massachusetts law required a
report). In some 40 states, the accounting or personal status report is submitted
to the court on an annual basis. Most states set levy sanctions for the failure to
report. Some 18 states provide for post-hearing investigators to visit the IP and
verify the accuracy of the report, at least if the judge finds this necessary. Califor-
nia has the most comprehensive model of review, with a regular visit to each IP
by a court investigator six months after appointment and every year thereafter.
Unfortunately, in practice, state courts often lack sufficient resources to fully
implement a monitoring scheme.16
Public guardianship programs are subject to the same provisions for guardian-
ship accountability and monitoring as other guardians. However, in close to 20
states, the public guardianship statute either specifically mentions that the pro-
gram must report to court and abide by state requirements for guardian review,
or provides for special additional oversight. States such as Maine, Minnesota, and
New Hampshire call for an annual report to the court on each public guardian-
ship case, and one state (Delaware) requires court review of public guardianship
cases every six months. In Florida, the public guardianship office must report to
court on its efforts to locate a successor guardian and on potential restoration
within six months of appointment.
In addition to requiring court reports, several statutes call for annual reports
on the program or on cases to governmental entities. For instance, in Hawaii, the
office must submit an annual report to the chief justice and in Kansas, the pro-
gram must report annually to the governor, legislature, judiciary, and the public.
Five state statutes (Florida, Indiana, Kansas, Tennessee, and Vermont) call for an
annual audit of the program. Several states call for local or regional programs to
report annually to the coordinating state agency. Maryland has a unique over-
sight mechanism, providing county review boards to conduct biannual reviews
of each public guardianship case, including face-to-face hearings by volunteer
multidisciplinary panels. Two states (Utah and Virginia) require an independent
evaluation of the program. Finally, a majority of the state statutes specify bonding
requirements for the public guardianship program.

E MERGENCY P ROCEDURES
The Schmidt study also referred to the need for emergency procedures when
the “needs of an individual may be so acute as to require immediate aid.” This is
particularly relevant for public guardianship, as frequently vulnerable individuals
without societal contacts (candidates for public guardianship appointment) ex-
perience crises that put them in jeopardy. Schmidt discovered that in 1981, only
28 PUBLIC GUARDIANSHIP

“a handful of states” had emergency procedures, and that these were outlined in
APS legislation and emergency guardianship procedures in “some states.”
Currently, as reported above, all states have APS legislation and programs in
place, which frequently funnel cases to public guardianship programs. In addi-
tion, virtually all states have provisions for emergency guardianships. One issue
is that due process safeguards for emergency guardianship are typically less strin-
gent than for permanent guardianship, yet emergency guardianship often func-
tions as a gateway to the more permanent status. Thus, some individuals may end
up in a guardianship with less than full due process protection.17

L IMITED G UARDIANSHIP
In 1981, the Schmidt study touched on the issue of limited guardianship,
which at that time was “becoming more prevalent of late.” The principle under-
lying limited guardianship is that there is no “bright line” of capacity; incapacity
is not all or nothing. A limited guardian has powers only in those areas in which
the person lacks capacity, allowing the IP to retain as much independence and
autonomy as possible. This is in accordance with the principle of using the “least
restrictive alternative.”
In 1982, the UGPPA incorporated limited guardianship provisions, giving a
major boost to the adoption of the concept in state law. Today, virtually all state
guardianship statutes include provisions for limiting or tailoring the court order
(in some cases, stating a preference for limited over plenary guardianship), and
most include language acknowledging the importance of “maximizing [the] self-
determination and independence” of the individual.18 Such language on limited
guardianship, however, is difficult to put into practice. A 1994 study found that
nationwide, the overall use rate for limited guardianships (excluding one high-
use state) was about 5 percent.19
In nine states, statutory language specifically mentions that the public guard-
ianship program may serve as a limited guardian, thus emphasizing the legisla-
tive intent. In some of these states (such as California and Illinois), the public
guardianship program may petition to serve, and could thus petition for a lim-
ited order. The recent Washington legislation states that the public guardianship
providers must annually certify that they have reviewed the need for continued
public guardianship services and the appropriateness of limiting or further limit-
ing the scope of the order.

A PPRAISAL OF S TATUTORY C HANGES

Clearly, much has changed since the statutory review conducted in 1981.
Schmidt remarked on the variability of state guardianship law and the need for
“renewed impetus for uniform state laws” on public guardianship specifically and
guardianship generally. Since that time, the UGPPA has undergone two revisions
and is adopted in whole or piecemeal in a number of states. However, as shown
 STATE STATUTORY ANALYSIS 29

by the ABA Commission on Law and Aging statutory tables, state guardianship
law remains variable, causing particular problems when guardianship jurisdiction
issues arise. The Uniform Law Commission has developed the UGPPA, which is
being enacted by state legislatures. State statutes have reflected significant progress
in affording procedural protections, including a more functional determination of
incapacity, promoting limited orders, and bolstering court oversight procedures.
State public guardianship statutes are markedly variable, as well. There is no
uniform public guardianship law. A now-and-then statutory comparison shows
that some nine additional states have adopted explicit public guardianship legisla-
tion. Explicit provisions provide for an actual program, rather than a governmen-
tal entity to serve as guardian of last resort, and can articulate standards with much
greater specificity. These explicit provisions are more likely to provide for budget-
ary appropriations and to establish greater oversight than that required for private
guardians. Finally, it is important to note that seven states now reference staffing
ratios. This is a great leap forward, which is probably attributable to the 1981
study’s emphasis on adequate staffing. However, a substantial portion of states still
place public guardianship programs in a governmental agency with the potential
for conflicts of interest. While some attempt to mitigate these potential conflicts
with statutory language, the conflicting agency roles remain problematic.

N OTES
Portions of this chapter are based on Teaster, Pamela, Erica Wood, Susan Lawrence,
and Winsor Schmidt. “Wards of the State: A National Study of Public Guardianship.”
Stetson Law Review 37, no. 1 (2007): 193–241. Courtesy of the Stetson Law Review.
1. Schmidt et al., Public Guardianship and the Elderly.
2. Ibid., 179.
3. See state statutory charts on adult guardianship, as well as the annual update, on
the Web site of the ABA Commission on Law and Aging at http://www.abanet.org/aging/
legislativeupdates/home.shtml. See also Teaster et al., Public Guardianship After 25 Years,
33–37; and Erica Wood in Quinn, Guardianships of Adults.
4. In mid-2007, Arkansas passed a public guardianship bill, S.B. 820, creating an
office of public guardian for adults within the Division of Aging and Adult Services. The
Act does not take effect until and unless the director of the division determines that ad-
equate appropriations or other funding are available and appoints a public guardian.
5. This project did not include a systematic search of all state adult protective ser-
vices statutes, which might reveal additional guardianship provisions. See ABA Commis-
sion on Law and Aging, Adult Protective Services Agency Authority to Act As Guardian of
A Client: Guidance and Provisions from Adult Protective Services Law, By State, http://www.
abanet.org/aging/elderabuse.shtml. Throughout this chapter, the District of Columbia is
counted as a state.
6. Schmidt et al., Public Guardianship and the Elderly, 26.
7. National Conference of Commissioners on Uniform State Laws, Uniform Guard-
ianship and Protective Proceedings Act (1982).
8. Cf. Washington Certified Professional Guardian Board, Ethics Advisory Opin-
ion 2005-001-Professional Guardian Petitioning for Appointment, http://www.courts.
30 PUBLIC GUARDIANSHIP

wa.gov/committee/?fa=committee.display&item_id=644&committee_id=127 (“The
practice of nominating oneself as guardian automatically raises the appearance of
self-dealing.”)
9. Schmidt et al., Public Guardianship and the Elderly, 34.
10. See http://www.ncea.aoa.gov/NCEAroot/Main_Site/Find_Help/APS/Analys
is_State_Laws.aspx. Cf. Winsor Schmidt, “Adult Protective Services and the Therapeutic
State,” Law and Psychology Review 10 (1986): 101–121; Winsor Schmidt and Kent Miller,
“Improving the Social Treatment Model in Protective Services for the Elderly: False Needs
in the Therapeutic State,” Journal of Comparative Social Welfare 1, no. 1 (1984): 90–106.
11. See ABA Commission on Law and Aging, American Psychological Association,
and National College of Probate Judges, Judicial Determination of Capacity of Older Adults
in Guardianship Proceedings (ABA and APA, 2006).
12. Michael Mayhew, “Survey of State Guardianship Laws: Statutory Provisions for
Clinical Evaluations,” BIFOCAL 27, no. 1 (2005): 1–2, 13–19. See also Jennifer Moye,
Stacey Wood, et al., “Clinical Evidence in Guardianship of Older Adults Is Inadequate:
Findings From a Tri-State Study,” The Gerontologist 47, no. 5 (2007): 604–612; Jennifer
Moye, Steven Butz, et al., “A Conceptual; Model and Assessment Template for Capacity
Evaluation in Adult Guardianship,” The Gerontologist 45, no. 5 (2007): 591–603.
13. ABA Commission on Law and Aging, Adult Protective Services Agency Authority
to Act As Guardian of A Client: Guidance and Provisions from Adult Protective Services Law,
By State, http://www.abanet.org/aging/elderabuse.shtml.
14. Schmidt et al., Public Guardianship and the Elderly, 38.
15. U.G.P.P. A. section 318.
16. Karp and Wood, Guardianship Monitoring: A National Survey of Court Prac-
tices; Karp and Wood, Guarding the Guardians: Promising Practices for Court Monitoring.
See also Sally Hurme and Erica Wood, “Guardian Accountability Then and Now: Trac-
ing Tenets for an Active Court Role,” Stetson Law Review 31, no. 3 (2002): 867–940.
A recent Guardianship Task Force report in the state of Washington not only recom-
mends that adequate public funding should be allocated to the guardianship system, but
also advocates that courts should actively, and not just passively, monitor guardianship
cases. Elder Law Section, Washington State Bar Association, Report of the Guardianship
Task Force to the WSBA Elder Law Section Executive Committee (Seattle, WA: Washington
State Bar Association, 2009), http://www.wsba.org/lawyers/groups/elderlaw/
17. See Peter Barrett, “Temporary/Emergency Guardianships: The Clash Between
Due Process and Irreparable Harm,” BIFOCAL 13 (1992–1993): 3. See also Grant v.
Johnson, 757 F. Supp. 1127 (D. Or., 1991), ruling a state emergency guardianship statute
unconstitutional because it lacked sufficient due process protection.
18. See the state-specific chart of statutory provisions on limited guardianship by
the AARP Public Policy Institute, on the Web site of the ABA Commission on Law and
Aging, http://www.abanet.org/aging/guardianship/lawandpractice/home.html.
19. Lisi, et al., National Study of Guardianship Systems: Findings and Recommenda-
tions. See also Sally Hurme, “Current Trends in Guardianship Reform,” Maryland Journal
of Contemporary Legal Issues 7, no. 1 (1995–1996): 143–189; Lawrence Frolik, “Promot-
ing Judicial Acceptance and Use of Limited Guardianship,” Stetson Law Review 31, no. 3
(2002): 735–755; Winsor Schmidt, “Assessing the Guardianship Reform of Limited
Guardianship: Tailoring Guardianship or Expanding Inappropriate Guardianships?,”
Journal of Ethics, Law and Aging 2, no. 1 (1996): 5–14.
 Chapter 3

CASE STUDIES

Helen is an 87-year old woman with a history of mental illness. Two years
ago, the group home sought the payment of fees that were six months in ar-
rears. The courts found that there were no family members and no one able
and/or willing to serve as guardian. As a result, Helen was made a ward of
the state. ABC Services was named to provide guardianship services. ABC
staff resolved the financial confusion and Helen was delighted to be able
to stay in the place she calls her home. Several months later, Helen fell and
broke her shoulder. Again, ABC stepped in and sought her input and was
able to ensure that physical therapy services were provided and Helen was
able to regain most of her mobility. Six months ago, Helen was diagnosed
with inoperable cancer. Yet again, ABC stepped in and, with its knowledge
of Helen’s values, ensured that she would be provided hospice care, in keep-
ing with her wishes.

O VERVIEW
Chapter 3 presents information about and an assessment of site visits to nine
public guardianship programs in six states. Florida and Illinois were studied
using focus groups composed of key stakeholders, while individual interviews
were utilized in the other four states. Thus, the headings for Florida and Illinois
differ from those for California, Arizona, Maryland, and Delaware. Programs are
presented within the context of how stakeholders regard them, as well as consid-
eration of the programs’ strengths, weaknesses, opportunities, and threats. Cases
that either made the newspapers in each state or were described during the site
visit are also included.

T HE F LORIDA S TATEWIDE P UBLIC

G UARDIANSHIP O FFICE
The state interview contact for the Florida Statewide Public Guardianship
Office (SPGO), which falls under the administrative umbrella of the Florida
Department of Elder Affairs in Tallahassee, was Michelle Hollister, Executive
Exploring the Variety of Random
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The Project Gutenberg eBook of Little
Miss Moth
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Title: Little Miss Moth

The story of three maidens: Charity, Hope, and Faith

Author: Amy Le Feuvre

Release date: April 2, 2024 [eBook #73317]

Language: English

Original publication: London: Pickering & Inglis, 1927

*** START OF THE PROJECT GUTENBERG EBOOK LITTLE MISS

MOTH ***
 Transcriber's note: Unusual and inconsistent spelling is
as printed.

A LITTLE BREEZE BLEW IN AT THE OPEN WINDOW,

AND THEN A RED AND BROWN BUTTERFLY FLEW IN.
 THE RED CORD SERIES

"The Comforter . . . whom the Father will send. . ."

LITTLE MISS
MOTH

THE STORY OF THREE MAIDENS

CHARITY, HOPE, AND FAITH

BY

AMY LE FEUVRE

Author of "Probable Sons," "Teddy's Button," "Tested,"

"Andy Man," "Chats with Children," etc.
 PICKERING & INGLIS

14 PATERNOSTER ROW, LONDON, E. C. 4

229 BOTHWELL STREET, GLASGOW, C. 2

THE RED CORD LIBRARY

OF HEALTHY MORAL STORIES

FOR ALL YOUTHFUL READERS

By JOHN BUNYAN
THE PILGRIM'S PROGRESS

By AMY LE FEUVRE
LITTLE MISS MOTH
TESTED

BY M. L. CHARLESWORTH
MINISTERING CHILDREN
THE BASKETMAKER'S SHOP
(A SEQUEL TO MINISTERING CHILDREN)

BY CHARLOTTE MURRAY
WARDLAUGH; OR, WORKERS TOGETHER
 THROUGH GREY TO GOLD
STUART'S CHOICE
MURIEL MALONE
FROM SCHOOL TO CASTLE

BY PANSY
A NEW GRAFT ON THE FAMILY TREE

BY M. E. DREWSEN
GRACIE AND GRANT, A HIGHLAND TALE
NEDDIE GARDNER; OR, THE OLD HOUSE

BY GRACE PETTMAN
GIVEN IN EXCHANGE

BY J. GOLDSMITH COOPER
HOPE GLYNNE'S AWAKENING

BY SYDNEY WATSON
WOPS THE WAIF, A TALE OF REAL LIFE

Made and Printed In Great Britain

CONTENTS

CHAPTER

I. A NEW HOME

II. FIRST ADVENTURES

III. AN INVITATION TO THE HALL

IV. CHARLIE'S RAFT

V. THE PIRATE

VI. CHARLIE STILL IN COMMAND

VII. THE PIRATE'S HOME

VIII. CHARITY PLAYS TRUANT

IX. FAITH'S OLD FRIEND

X. STRAWBERRY PICKING

XI. THE GREY DONKEY

XII. THE ACCIDENT

XIII. A WONDERFUL LEGACY

XIV. FAITH'S GIFTS

XV. THE PIRATE'S CHRISTMAS STORY

LITTLE MISS MOTH

CHAPTER I
 A NEW HOME

THREE little girls were looking out of the window on a

very wet afternoon in March. They were so close together in
age and height that sometimes two of them were taken for
twins, yet there was a year between each of them. And they
were unlike each other in looks.

Charity, the eldest, had a quantity of red auburn hair

down her back. She was very lively and talkative, and her
eyes were always sparkling with fun and happiness.

Hope, next to her in age, had fair golden hair and blue
eyes; she was sweet tempered and rather apt to be an echo
of anyone with whom she was.

Faith, the youngest, was a quiet child, with short, dark,

curly hair, and thoughtful brown eyes. She had a very sweet
little face, but looked fragile and delicate beside her rosy,
sturdy sisters.

It was not a very cheerful scene outside the window.

One of those quiet, dingy streets towards the outskirts of
London, where rows of houses faced each other, all exactly
alike, and where the only traffic was the tradesmen's carts
rattling along, and an occasional cab or motor. But the little
girls were talking fast and happily. The rain beating against
the window panes did not depress them. The dark grey sky,
the wet pavements, the wind whirling the smoke along the
street from the chimneys opposite, the people hurrying by
under sodden umbrellas, all interested the six bright eyes.

And at last three voices shouted happily:

"Here she comes, Granny! Here's Aunt Alice!"

 They left their post at the window and rushed to the
door. Mrs. Blair, their grandmother, who was sitting in an
easy chair by the fire, knitting small stockings, sprang up as
if she were twenty instead of nearly seventy. She took a
small kettle off the hob, and poured the hot water into a
teapot.

Tea was laid on a round table in the middle of the room.

There was only a loaf of bread and a pot of treacle, but
everything was very bright and clean; and the little room
looked quite cheerful in contrast to the grey, dingy street
outside. There was a canary hanging up in the window, and
a handsome black cat sat washing its face on the hearthrug.
Bright pictures were on the walls, and in the centre of the
table was a big bunch of yellow daffodils.

Now the door opened, and Aunt Alice appeared, with a

bright, rosy face; and her three small nieces were instantly
hanging round her.

"Oh, Granny, she's got some primroses!"

"She's picked them herself!"

"And there's a parcel—very special for you!"

"Now let me speak, chicks! And first I must shed my

wet shoes. Charity, run and get me my slippers from
upstairs. Yes, Faith, you can take these out into the kitchen,
and ask Mrs. Cox to dry them for me."

Aunt Alice bent down and kissed Granny.

"You do look cosy here. I shall be thankful to have a cup

of tea!"
 In a few minutes all were gathered round the table, and
then Granny opened her parcel, which contained a pound of
golden butter.

"There!" said Aunt Alice. "What do you think of that?

Old Mrs. Horn sold it to me. They are not rationed in butter
down there. And, Mother, dear, I have had a very successful
day, and the cottage is sweet. I have seen Sir George, and
he will let it for ten pounds a year. Think of it, with no rates
or taxes, and a garden big enough to grow our own
vegetables, and an orchard with six good apple trees in it!"

"And what about the water?"

"Quite a good well close to the house, and these

primroses are out of the orchard, and Mrs. Horn who lives
only a field away will supply us with milk."

"What is the cottage like?"

"There is a big kitchen and dairy; the kitchen larger

than this; a tiny best parlour, which I don't think we will use
at all, and four good bedrooms, and cupboards in every
room built into thick walls."

Granny's eyes sparkled as brightly as the children's.

"And when can we have it?"

"Sir George said he would have it papered and painted

throughout. It is in good repair. His coachman lived there
for ten years before he went to the war, and his wife was a
'clean body,' so Mrs. Horn informed me. Poor thing, she died
a month after she had left it. She had a weak heart, and
she heard of her husband's death suddenly, and it just killed
her."

"Did you see Lady Melville?"

 "Just for a moment. Sir George sent his love to you. He
said it would be like old times to see you again."

There was silence. The little girls were busy eating their
bread and treacle, but their ears were taking everything in.

"And is the cottage lonely?" asked Granny.

"No, I don't think so. It lies just off a road. There's not
much passing, but, Mother dear, you will revel in the peace
and quiet after this!"

Aunt Alice waved her hand out of the window. She was
smiling brightly. Granny looked at her rather wistfully. "And
you have quite made up your mind to give up your war
work and come with us? You don't think I could manage
with the children?"

"I am sure you could not, Mother. There will be wood to

be sawn, and the garden to be tilled. Sir George has given
us leave to gather all the wood we want from his woods,
but we can get no man or boy to help us. Mrs. Horn told me
that. She is running her small farm without any man at all,
her two daughters do everything. The children must make
themselves useful."

"And what about their lessons?"

Aunt Alice looked grave.

"I don't know. If we can't find any one to teach them, I

suppose I must try myself. There is the village school a mile
off."

"No, Alice, I shall not let them sink to that."

Aunt Alice laughed and shrugged her shoulders

 "Oh, Mother dear, we won't bring them up with empty
brains as well as empty purses! They will have to earn their
own living, so they must have a good education."

"Well, we will talk about that later."

"And we'll all have a slice of bread and butter now," said
Aunt Alice briskly. Then she turned to the children, and
began to tell them of all that she had seen and heard since
she had left them two days ago.

And when tea was over, Charity slipped out to the

kitchen. She was longing to impress Mrs. Cox with the
wonderful new life in front of them.

Mrs. Cox was a thin, gaunt woman who came every day
from eight o'clock to six in the afternoon. She cleaned, she
cooked, she washed and ironed, and was the children's
devoted friend. They were never tired of listening to her
stories, but Mrs. Cox always enjoyed very dismal subjects.
Funerals and illnesses were her chief topics; and her friends
seemed to the children to have had the most marvellous
diseases, and the most miraculous cures that they had ever
heard.

"Oh, Mrs. Cox," cried Charity, dancing up to her, as she

sat at the kitchen table enjoying her cup of tea, "we're
going to the country to a house all our own, and no lodgers
in the top floors of it, a house with a well, and primroses,
and apple trees, and we shall have butter—real butter—
every day, and a forest with big trees, and we shall pick up
wood in it and light our fires. And Aunt Alice will be home all
day!"

Mrs. Cox stared at her.

 "Ah, well, yer h'aunt did say to me times was hard, and
you couldn't h'afford to go on livin' here, that and the h'air
raids—but never did I think you'd all sink down to the
country! 'Tis only where folks live in their dotage, or sick
children be sent for their 'olidays; nobody with brains or
money be content with such a hom'! Why, me sister Ivy
went down to a place there, an' were that skeered she's
never prop'ly recovered since. She left before the end o' her
month; she said when you looked out of the windys, there
were nothin' but trees tapping their branches on the windy
panes, and earwigs a crawlin' inter the beds, if you please,
and you walks miles and never meets a single human soul,
an' the nights black pitch, so's the evenings out were a
crool joke! Not to speak of mud comin' up your legs over
your boots—!"

"Go on—how perfectly lovely!" cried Charity with

glowing eyes.

But Mrs. Cox shook her head gloomily, and refused to

say another word.

"Granny lived in the country when she was little, and

our Dad was born in the country, and when Grand-dad was
alive, he kept a school in the country for little boys, and
Granny used to love them, and they loved her. And George
Melville had curly hair, and Granny used to keep a bag of
chocolates in her room for him, and now he's grown-up,
and has a big house, and he's going to let Granny and us
live in one of his small houses. We're going to be awfully
happy in the country, Aunt Alice says everything is nice
there."

Mrs. Cox gave an unbelieving sniff.

 "Once I went on a Mothers' treat. It rained twelve hours
on end—and I sat on a damp log o' wood, and was ill in bed
of rheumaticks for a month h'after! Give me a proper
Lunnon park for beauty. Why, the park flowers beat the
country ones holler!"

Charity left her. Mrs. Cox would not understand the joy
of looking forward to a move into an unknown country.

Two hours later, the three little girls were in bed in one
room upstairs. Aunt Alice and Granny always slept together.

They were talking hard over the prospect in front of

them.

"I s'pose," said Hope with knitted brow, "that we're

very, very poor. It's only since Granny and Aunt Alice were
doing up sums together in their account books that they
said they couldn't stay here any longer."

"No," said Charity; "it was when Faith was so ill the
other day. The doctor said Granny must take her to the
country, and Granny shook her head. And I heard her say to
Aunt Alice after:

"'I should like to have something worth selling, my dear,

but I've no more jewels, and all our silver is gone, and the
bits of furniture left us are worth nothing.'

"Poor Granny! She wiped her spectacles when she said

it, and she always does that when she's unhappy."

"And we do wear out our shoes, and eat a lot," said

little Faith with fervour. "If we live in a cottage, p'raps it
won't cost so much."
 "And perhaps we shall be allowed to run about without
shoes and stockings," said Hope; "that would be lovely, like
we did at the sea, when Aunt Alice took us to Margate."

"I know one thing," said Charity, rolling round in bed in

ecstasy; "I mean to get lost in the wood as soon as ever I
can."

"And I shall climb the apple trees," said Hope.

"And I shall sit on the well," said Faith, "and draw water
up and down in a bucket all day long!"

"And as for Mrs. Cox," said Charity, "she's only talking

of the country she's seen—not of our cottage, which is
perfectly beautiful. Aunt Alice says so!"

Then sleep overtook them, and when Granny came up

to bed, she paid them her usual nightly visit.

"Poor little souls!" she said. "Life will not be so difficult

for us in the country; we may be able to give them more
pleasures."

The following days were full of bustle and excitement to

the children. They had been going to a small private day
school a few streets away, but now they were taken away
from it, and Charity expressed a hope that they would
never go to another school as long as they lived.

"It's our names," she confided to her aunt; "why did our
father and mother give us such names? The girls all laugh
at us, 'specially me! 'Charity' means everything nasty. If
you live on people's charity, it means you're a nobody, and
Charity schools are for the very lowest. I hate my name!
I'm glad we're going to the country. Mrs. Cox says we shall
have nobody there to notice what we're called."
 "I like your names," said Aunt Alice laughing. "Don't be
a little goose. Your Mother was a saint, and she got your
names from the Bible, and so far from 'Charity' being a
name to be despised, it is the greatest of all other names.
We are told so, you read the chapter about Charity and see
all you ought to do if you're worthy of your name."

"Oh, I know! Granny read it to me once. It is in

Corinthians, but I couldn't be like that chapter, no, never!"

She shook her red hair vehemently and danced away.

Charity was always jumping or running or dancing; she
hated keeping her legs still, and school was a real trial to
her.

Granny and Aunt Alice packed day after day. Mrs. Cox
asked how they were going to manage in the country if they
had no one to clean for them, and Hope asked her aunt
anxiously about it, but she was laughed at.

"I am going to stay at home, and do all Mrs. Cox's

work. I must, that is why I am leaving my work at the War
Depôt. Don't you think I am able to keep a cottage clean,
Hope? You will all have to help. Granny is not so young as
she used to be, and we must spare her all heavy work."

"I love scrubbing," said Hope happily. "I hope you'll let
me do that. Are we as poor as Mrs. Cox is?"

"Poorer, I think," said Aunt Alice cheerfully.

Nothing seemed to depress her, and Granny was just as

cheerful, so Hope said to Mrs. Cox, "It will be all right, Mrs.
Cox. Aunt Alice says it will. We are going to do everything
ourselves. We've got very poor, I don't know how, but
Granny always says a beggar is happier than a king! And we
shall love it all, I know we shall."
 The day came when a cab drew up to the door, and the
little girls with their arms full of parcels and baskets
followed Granny out of the house in which they had spent
most of their lives, and rolled away to the big, bustling
station. The journey in the train was a delight to them, and
when early in the afternoon they arrived at a quiet little
station called Deepcombe, and were told by their aunt that
they must get out, they looked round them with shining
eyes noting every detail around them.

There was a shabby little cart waiting for them outside

the station, and it was a tight fit to pack themselves and
their luggage into it. A girl drove it, and she and Aunt Alice
walked up all the hills. It seemed as if the road was never
going to end, but the children had plenty to see as they
went along. Lambs in the meadows; primroses on the
banks, and pretty thatched cottages and farmhouses
standing back from the road.

Charity was loud in admiration and wonder, Hope asked

questions about everything. Little Faith was the silent one,
she looked up into the blue sky and across the green fields
with a dreamy smile upon her small white face.

Granny bent down to her once: "Are you tired, darling?"

Faith's back ached, but she never acknowledged it. She

only smiled up at her grandmother. "It's like heaven, I
should think!" was all she said.

Granny put her arm round her. Faith was very delicate,
and she was continually in her grandmother's thoughts.
Granny often said to Aunt Alice that Faith lived at Heaven's
gates, and she was afraid that any day she might slip inside
them.
 At last they reached the Cottage. It had a white gate
which had been freshly painted, and the door stood open;
and kind Mrs. Horn had lighted a fire, and put a kettle on to
boil and was standing outside the door, ready to welcome
them.

The little girls tumbled over each other in their

excitement to get inside. It seemed at first like a doll's
house to them; the stairs were steep and narrow, and the
rooms low, and the windows very small, but they loved the
quaint cupboards; and then they ran out into the garden
and orchard, and visited the well and picked some
primroses, and whilst Granny and Aunt Alice were seeing to
the luggage being carried in, their tongues wagged fast.

"It's all beautiful," said Charity, "just like the cottages in

story books; and I hope we'll never go back to London
again in our lives!"

"And we can pick flowers wherever we see them," said

Faith, "without paying for them or having the keepers
coming up to see what we're doing."

"Where is the wood?" asked Hope.

Charity began to climb one of the apple trees.

"I think I see some trees over there," she said, pointing
to the corner of a field a short distance off. They were going
to set off immediately in search of it, when they heard their
aunt call them in.

"You mustn't run away," she said; "we're all going to

have some tea, and then you must help me get your beds
made up. There will be lots to do before we go to bed to-
night."
 "Is this our furniture?" asked Charity, looking round the
room, which had only an empty glass-paned cupboard, a
square table, a dresser, and six wooden chairs.

"Yes, we've taken over the furniture left here, but we'll
make this kitchen quite pretty with nice curtains, and some
cushions and some of Granny's pretty things."

So they gathered round the table for their evening

meal, and then till bed-time Aunt Alice kept them all busy.

When they at last went up to the sloping-roofed

bedroom where they were to sleep, the little girls were too
tired to talk any more.

It was Charity who said just before she dropped asleep:

"To-morrow—we'll find the wood, and then our

adventures will begin."

CHAPTER II
FIRST ADVENTURES

THE next day came, and Aunt Alice gave her small
nieces permission to go off for the morning anywhere they
liked.

"I don't think you can get into any mischief," she said.
"Charity has a wise little head of her own, and if you like to
go to the wood, and bring back some sticks for the fire, I
shall be very glad."

"Aunt Alice seems to guess what we should like to do

best," said Hope, skipping over the field as joyfully as the
lambs had skipped the evening before.

They crossed the orchard, and found a footpath going

through some fields. I do not think any little girls in the
whole world could have been so happy as these three were
on this bright sunny morning. And then just as they reached
the wood, something happened to dim their joy. They heard
the pitiful shrieks and cries of an animal in pain.

"Oh, what is it?" asked Faith with big eyes. "Is it a wild
beast, do you think? It may be a wolf or a fox!"

"We must go and see," said Charity bravely.

They entered the wood by a narrow footpath, and trod

one behind the other. Charity hurried along in front, and
very soon found a beautiful brown dog writhing on the
ground, with one of its legs fast caught in a gin.

They stood and looked at it with pitying eyes; but not

one of them knew how to release it. Faith began to sob as if
her heart would break. She never could bear to see the
smallest creature in pain, and had often cried over a dead
mouse in London.

"Let's call somebody," she cried, "he'll be dead, he's

bleeding. Oh call somebody quick!"

"But there's nobody to come in the country, Mrs. Cox

says so!" said Charity.

Hope and Faith raised their voices.

 "Help! Help! Murder!" they cried, for Mrs. Cox had often
told them how cries like that brought the policeman to help.

And then Charity joined them, and suddenly they heard

a crackling of branches, and an old man appeared. He had a
grey beard and a big shady felt hat over his eyes. A great
knotted stick was in his hand, and he had leather gaiters up
to his knees.

"Hullo! Hullo! What's doin' here?" he said, in a gruff

voice.

Faith seized hold of his hands, and her tears dropped

fast.

"It's a poor darling dog got caught in an iron thing.

Come and get him out quick! Oh, it's cruel, cruel!"

The old man quickened his pace.

"'Tisn't my Sandy! Eh, sure enough it be, an' I be

huntin' for him high and low. Still, my boy! So!"

He put his foot on the gin, and with a wriggle and a cry,
the dog was free. He stopped whining and stood before his
master trembling from head to foot. The old man knelt
down and with his handkerchief began to bind up the poor
torn leg. Charity and Hope watched the proceeding with the
greatest interest, Faith shut her eyes tight. She was as
white as a sheet, and, like Sandy, trembled from head to
foot.

But Charity began to talk, she asked the old man his
name.

"'Tis just Timothy Bendall, shepherd to Farmer Cratton,

an' I be livin' at that small cottage three fields off. An' who
be ye little ladies? Strangers in these parts, I reckon."

Charity told him all about themselves, how they had

just come from London and had come over to the wood, in
the hopes of finding some adventures.

He smiled at her, only half understanding what she said.

And then when poor Sandy's leg was bound up, he took him
up in his arms, and bade the children "Good morning."

Charity and Hope began to run on through the wood,

but Faith stood still, and Timothy looked at her. He was fond
of children, and he saw how white and shaken she was.

"You poor little maid, what be the matter then?"

"Oh, will he get well? Is he going to die? Does his leg

still hurt him?"

"Bless yer little heart, he will be right as rain in a day or

two. Would ye like to come on to my cottage and sit there
for a bit?"

"Oh, yes."

Faith stretched out her little hand and took hold of his.

"I don't want to go through the wood, we might get our

feet in a horrid trap. Who puts them there? Isn't it very
wicked?"

"No, no, 'tis just the boys who will trap rabbits, but they
oughter open them by day, an' I'll have a word to say to
'em on that score. Come along, and your sisters will find us
when they get through the copse."

"What's a copse?"
 "What you call a wood."

"But the boys don't catch dear little rabbits?" Faith's

face was so distressed and horror-stricken that the old man
tried to soothe her.

Charity, seeing her walk off with the old man, came
running back, but Timothy told her he was taking Faith to
his cottage to rest.

She looked up into his face very earnestly:

"You aren't a wicked robber or ogre in disguise?" she

asked. "For we've read lots of stories about children being
carried off in woods."

He shook his head.

"Old Timothy wouldn't harm a hair of your heads," he

exclaimed; "and 'tis grateful I be, for you callin' help for my
poor Sandy!"

"It's all right," said Charity gravely. "I see you've a good
face, and if Faith likes to go with you she can; but we want
to pick up firewood for Aunt Alice, and find some more
adventures!"

She and Hope spent an exquisite hour in the wood. It

was as the old man had said, only a small copse; beyond,
were big stretches of coverts, but to the two little girls this
wood held all their desires. They caught sight of a couple of
rabbits scudding away in the undergrowth to their holes;
they picked a bunch of the delicate white wood anemones
and primroses; they rooted up some moss, and beautiful
bits of young ivy; they collected some fir cones, and then
began to gather wood. The fresh smell of the moss and
earth around them, and the pure spring air filled their little
souls with delight. And then they hushed their breaths to
listen to the singing of the birds, and the cooing of a wood
pigeon in the distance.

"Oh, Faith is missing a lot!" Hope said. "She was stupid

to go off with that old man, instead of coming on with us."

"She looked white and sick," said Charity; "I think that
trap frightened her, and the sight of Sandy's bleeding leg!"

They were busy picking up some wood, and tying it into

small bundles with string, which their aunt had given them,
when they heard a man's heavy step amongst the bushes,
then a whistle, and Hope caught hold of Charity with
frightened eyes:

"Let us hide, it may be a robber!"

"It's too early in the morning," said Charity sceptically,

but she pulled her sister round to the back of a big tree,
and both peeped round the corner with anxious, expectant
eyes.

A tall, broad-shouldered man came in sight, followed by

a big black retriever. He was a gentleman, and Charity took
courage, and stepped out of her hiding place.

"Hullo! Whose little girls are you?"

"We've just come here, and we're picking wood for Aunt
Alice."

"Then you must be related to Mrs. Blair."

"She's our Granny."

 He smiled upon them, and emboldened by his smile,
Hope came out and confronted him.

"Is this your wood?"

"Yes. Do you know who I am?"

"The boy who always came for sweets to Granny's

room," Charity said.

Sir George laughed delightedly.

"The very same; and I'm on my way to pay my respects

to her. Do you think she has any sweets to give me now?"

"No, Granny is too poor, and since the war she says it's
wicked to buy sweets; for they take the sugar."

He laughed again.

"You must come up and see my wife. She loves small

girls. We've only two boys; and school takes them from us
most of the year."

Charity's eyes sparkled.

"We came out to meet adventures," she said

confidentially; "and you're the second one we've met. Faith
has gone off with the first one."

Sir George was then told about the dog, and the old
man.

"Mrs. Cox said we would see nobody at all in the

country," said Hope; "but we knew she was wrong, for all
the books say you meet people in a wood, and we have."

"So you're fond of books."

 "Oh," cried Charity, "we love them! I wish we could buy
hundreds of books, and have them in book cases up to the
top of the ceiling. When I grow up, I shall keep a book
shop, and I shall read them all, every one of them."

"Capital! I'm a book lover myself, and you shall come

up one day soon, and spend an afternoon with me and my
books."

Charity beamed.

"Thank you very much," she said, trying to speak

quietly.

"And what does this little maid like?"

He put his hand on Hope's shoulder as he spoke; and

she gave her golden hair a shake, as she looked up into his
kind eyes.

"Oh," she said, with determined lips, "I shall be a doctor

for animals, 'specially horses. I shall keep one to ride
myself, and I shall go riding over the country and make all
the sick animals well. I bandaged Dinah's paw the other day
when she got her claw hurt, and Aunt Alice said I did it
better than she did. And I would have loved to bind up
Sandy's leg, but I wasn't asked."

"You're going to be a couple of useful women one day,"

said Sir George; "and they say in the next generation you're
going to rule us all. Whilst your sister is reading my books,
you can be visiting my stables. They're rather empty these
days, but horses are easier to keep than oil, and I believe
we have a rough pony who isn't required now to mow the
lawn, and who might be ridden upon by a small girl."

Hope's eyes sparkled.

 "Why, you've come along just like a fairy," she said,
"only you're a man and not a woman."

"And can't a poor man be a fairy?"

"Yes," said Charity hastily, "of course you can, but I

think men are generally magicians."

Sir George gave a nod.

"That's what I am, of course," he said. "Good-bye, I

shall see you again soon."

He strode along the footpath, and the little girls

watched him out of sight.

Charity drew a deep breath of delight.

"Think what Faith has missed. Oh, Hope, you think he

really meant what he said?"

"I'm sure he did. His eyes looked so straight and firm,

they didn't wobble at all!"

Then they went on picking up their sticks. And when

they had got as much as they could carry, Charity said:

"Shall we go to the cottage to find Faith?"

"It's quite near," said Hope, "but we can't carry all this
wood up there. Let her find her way home herself."

They retraced their steps, and when they had got

outside the wood, they saw Faith running across the field to
them.

She looked quite rosy and happy again. They were so

full of their meeting with Sir George and had so much to tell
her, that they did not ask her what she had been doing, but
at last Faith said:

"Well, you've had a lovely time, but I wouldn't have

missed my time for all the world."

"What have you been doing?"

"He took me to his cottage; it's smaller than ours, and

he lives there all alone, only once a week his niece comes
from the village to cook and clean for him. He has the
darlingest kitchen with lovely china plates, and mugs and
shells, and a stuffed owl, and pictures of hunting. He was a
keeper when he was younger, to Sir George, not like a park-
keeper; he used to shoot and take care of dear little
pheasants. But now he looks after sheep and cattle. And he
gave me a drink of milk, and then he sat and talked to me,
and he told me of things I've never heard before!"

"And how is Sandy?" asked Hope.

"He is lying in a basket. Do you think Aunt Alice would

let me go and see old Timothy again?"

Faith's eyes were shining. Her sisters laughed at her.

"We're going to Sir George's big house, it will be much

more adventure than yours."

But Faith shook her head.

"I've had such a wonderful talk," she said.

Hope looked at her curiously, but said nothing. She and

Faith were better friends when Charity was not present.
Faith had many quaint fancies which Charity laughed at, but
Hope never laughed at Faith when she was alone with her.
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