Comparative Perspectives on Adult Guardianship.

• Author: Kapp, Marshall B.

Comparative Perspectives on Adult Guardianship

By A. Kimberley Dayton

In the United States and around the world, every adult person begins with a legal presumption of capacity to make personal and financial decisions about his or her own life. That presumption is rebuttable, however, and for some people in our rapidly aging state, nation, and world, the cognitive and emotional capacity to understand choices, appreciate their consequences, and engage in a rational decisionmaking mental process is so seriously impaired that autonomous, self-determined, independent action is not possible. In such situations, the state is authorized to intervene, if necessary, under its inherent parens patriae (father of the land) power to protect from harm those individuals who are not capable of self-protection.

The primary legal mechanism for protective state intervention, both domestically and internationally, is guardianship (precise terminology varying somewhat among jurisdictions). Comparative Perspectives on Adult Guardianship is an excellent, coordinated collection of essays on a variety of topics pertaining to the history, philosophy, jurisprudence, and operational details of the respective guardianship systems of the U.S. (including its tribal subdivisions) and many other nations (Australia, Canada, China, Israel, Japan, the Netherlands, Korea, Sweden, and Turkey). The 28 authors of 23 well-organized and thoroughly referenced chapters comprise an international constellation of highly respected law professors, jurists, human services professionals, and advocates involved in guardianship services and reform movements.

Several chapters are likely to be especially interesting to Florida attorneys who touch upon guardianship issues through their elder law, family law, or health law practices, or whose clients (e.g., banks or realtors) have business relationships with individuals whose decisional capacity to take part in certain transactions may subsequently be questioned. Chapter three journeys through transnational and multistate guardianship jurisdictions...