Guardianship and the Constitution:
A System in Violation

A Case From the Ancient World

More than two thousand years ago, a son dragged his elderly father into an Athenian court and charged him with incompetence. The father was Sophocles — playwright, soldier, citizen of Athens at its height. His defense was simple: he stood before the jury and read from the play he had just written. The case was dismissed. The son was fined. The defendant departed in honor.

It is, as one scholar noted, probably a unique instance of poetic justice in any era of civilization. It is also a reminder that the abuse of guardianship as a mechanism for seizing control of an elder's life and property is not a modern invention. It is as old as organized law itself — traceable through the Roman Empire, through English common law, through Colonial America, and into the probate courts of the United States today. What has changed is not the structure of the problem. It is the scale.

The Constitutional Architecture

The constitutional architecture that governs — or should govern — guardianship is not the product of a single provision or a single era. It is built from the accumulated weight of what the American people have, over two centuries, decided cannot be taken from a citizen without the highest justification and the most rigorous process. It begins with the founding command that no person shall be deprived of life, liberty, or property, without due process of law — a promise the Fifth Amendment made to citizens of the new republic and the Fourteenth extended, a century later, to every person in every state. It encompasses the right of the people to be secure in their persons, houses, papers, and effects against unreasonable intrusion — a guarantee the Fourth Amendment places at the center of what it means to have a home and a private life. It protects the freedom to speak, to associate, and to petition — rights the First Amendment secures not as privileges of the healthy and capable, but as conditions of citizenship itself. It demands, through the Sixth Amendment's insistence on counsel, on witnesses, on confrontation, that those accused of anything — even incapacity — have a genuine opportunity to be heard and to challenge the evidence against them. It insists, through the Eighth Amendment's prohibition of cruel and unusual punishments, that the state may not treat its most vulnerable citizens as objects of control. It affirms, through the Ninth Amendment, that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people — that personhood is not exhausted by what the framers thought to name. It preserves, through protections the courts have repeatedly held cannot be stripped without individualized findings and narrow tailoring, the right to vote — the most fundamental act of democratic citizenship. And it requires, through the Americans with Disabilities Act's mandate that public services be provided in the most integrated setting appropriate, that the state not use the law of protection as an instrument of segregation.

Together these provisions say something simple and radical: a citizen does not stop being a citizen because they are old, or ill, or in need of help. The rights do not recede when vulnerability arrives. If anything, due process is flexible — which the Supreme Court has taught us means not that it weakens under pressure, but that its protections must rise to meet the gravity and irreversibility of what is at stake. In guardianship, what is at stake is everything. The constitutional architecture described in this essay was built for exactly this moment. The question is whether we are willing to use it.

That question has an answer. The Constitution already provides it.

The Constitutional Stakes

"The guardianship process gives insufficient attention to indispensable constitutional safeguards, such as the rights to equal protection of the laws and due process." — Mark D. Andrews, The Elderly in Guardianship: A Crisis of Constitutional Proportions, 5 Elder L.J. 76 (1997)

Guardianship is authorized by state law. But the people it affects are citizens of the United States, and the rights it removes are not creatures of state statute. They are constitutional guarantees — some among the most fundamental recognized in American law. When a court strips a person of the right to decide where they live, whom they may see, how their money is spent, and whether they may vote, it is not merely making an administrative determination. It is depriving a citizen of liberty and property interests that the Constitution protects.

That deprivation is not inherently unconstitutional. The state has a legitimate interest in protecting vulnerable adults, and the Supreme Court has long recognized that interest as sufficient to justify carefully circumscribed interventions. What the Constitution does not permit is the casual, opaque, and effectively unreviewable removal of fundamental rights that characterizes guardianship practice in too many American courts today.

As Andrews observes, guardianship represents perhaps the most severe form of civil deprivation that can be imposed on a citizen of the United States — one that strips a person of more rights than a convicted criminal. A person adjudicated incapacitated loses the right to marry or divorce, to vote, to make or revoke a will, to manage money, to drive, to buy or sell property, to consent to or refuse medical treatment, and to decide where to live. An accused murderer, by contrast, retains the presumption of innocence and the full procedural protections of the adversarial system. The person facing guardianship often has neither.

This essay examines what the Constitution demands of guardianship proceedings, and asks a question that the system has been too slow to answer: by what constitutional authority does a probate court, in a brief hearing, on the basis of a single clinical assessment, remove the rights of citizenship from a person who has done nothing wrong?

Progress on Paper — and Its Limits

The constitutional failures described in this essay did not emerge from legal theory. They were documented in courtrooms, case files, and court archives across the United States — first and most consequentially by The Associated Press.

In 1987, prompted by a year-long nationwide investigation of more than 2,200 guardianship case files, the AP published findings that were, in the words of Congressman Claude Pepper — chair of the House Select Committee on Aging's Subcommittee on Health and Long-Term Care — nothing short of a national disgrace. Chair, Pepper expressed in his introduction:

“The typical ward has fewer rights than the typical convicted felon… By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die. In one short sentence, it is the most punitive civil penalty that can be levied against an American citizen, with the exception…of the death penalty.”

AP findings revealed that forty-four percent of those facing guardianship had no attorney. Nearly half were not present at their own competency hearings. In thirty-four percent of cases, no medical evidence appeared in the court file. Once a guardianship was opened, the AP found, courts routinely lost track of both the paperwork and the person. The system was, in the AP's own summary, "a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect."

The hearing and its companion report — Abuses in Guardianship of the Elderly and Infirm: A National Disgrace — prompted congressional scrutiny, state legislative activity, and a wave of professional reform efforts that continued through the 1990s and into the present century.

Before examining the constitutional failures in detail, intellectual honesty requires acknowledging what has changed. In 1997, when Andrews published his analysis, he drew primarily on that same AP investigation and its legislative aftermath. The findings were devastating: nearly half of all persons subject to guardianship had no legal representation. A quarter of cases involved no hearing at all. One-third of those placed under guardianship were removed from their homes. Judges approved guardianship petitions ninety-seven percent of the time.

In the years that followed, those findings prompted significant legislative activity. Writing in 1999, elder law attorney A. Frank Johns documented that at least thirty-four states had revised their guardianship statutes to incorporate constitutional procedural protections — higher standards of proof, mandatory notice requirements, statutory rights to counsel, limited guardianship provisions, and monitoring requirements. The statutory landscape, Johns argued, no longer supported Andrews's claim of a constitutional crisis.

Johns is right that the statutes have improved. He is wrong that this resolves the problem — and his own analysis reveals why. As Johns himself concedes, judges continue to exercise powers beyond those statutorily granted, applying the ancient doctrine of parens patriae — the state as benevolent parent — years after legislatures have moved away from it. Historical habits of the bench, he acknowledges, have been slow to change. The gap between the law on the books and the law in practice is, as John Parry observed in the civil commitment context — and as Johns argued applies with equal force to guardianship — well documented.

That gap has not closed. If anything, it has widened. The demographics that Pepper warned about in 1987 have arrived: an aging population of unprecedented scale, carrying unprecedented wealth, moving through a system that has been modestly reformed but not fundamentally changed. 

In the wake of the AP investigation and the 1987 congressional hearing, the American Bar Association established WINGS — the Working Interdisciplinary Networks of Guardianship Stakeholders — under its Commission on Law and Aging, as a vehicle for the sustained, multidisciplinary reform the crisis demanded. More than three decades later, the need for that vehicle has not diminished. In a 2020 Briefing Paper, the Commission observed that exposés in a growing number of states continue to disclose "the experiences of individuals and families in a system that does not serve them well and may result in exploitation or harmful isolation — and that too casually removes rights without proper accountability." The national disgrace Pepper named in 1987 has a different scale today. The structure is the same.

That gap is the constitutional problem. A statutory right to counsel means nothing if the attorney appointed meets their client for the first time on the morning of the hearing. A clear and convincing evidence standard means nothing if judges do not apply it. A limited guardianship provision means nothing if courts default to plenary orders because it is the path of least resistance. The constitutional violations catalogued below are not, in most cases, violations of statute. They are violations that occur within and despite statutory frameworks that, on paper, should prevent them. That is precisely what makes them constitutional failures — and precisely what makes legislative reform, while necessary, insufficient on its own.

The Fifth and Fourteenth Amendments: Due Process and Equal Protection

The due process guarantees of the Fifth Amendment and Fourteenth Amendments are the constitutional provisions most directly implicated by guardianship. The Fifth Amendment prohibits the federal government from depriving any person of life, liberty, or property without due process of law. The Fourteenth Amendment extends that prohibition to the states.

Guardianship implicates both liberty and property interests of the highest order. The Supreme Court has recognized that the right to remain in one's home, to make decisions about one's own medical care, and to manage one's own financial affairs are among the most significant liberty and property interests protected by the Constitution. When the state proposes to transfer those interests to a third party — permanently, by court order, without the person's consent — due process requires, at minimum, adequate notice, a meaningful opportunity to be heard, the right to meaningful legal representation, and a decision grounded in articulated findings of fact.

In practice, guardianship proceedings routinely fall short of each of these requirements. Hearings may proceed within days of filing, before the person subject to guardianship has had a genuine opportunity to retain and consult with counsel. This is not merely a scheduling problem. It is a structural contradiction at the heart of the proceeding. The very basis of the guardianship petition — the allegation that the respondent lacks the cognitive capacity to manage their own affairs — is simultaneously used to justify moving quickly and to undermine the respondent's ability to mount a defense. A person alleged to be incapacitated may not fully understand what is being filed against them, may not comprehend the consequences of the proceeding, and may lack the practical ability to identify, contact, retain, and instruct an attorney in the compressed timeframe the court allows. In other words, the allegation of incapacity is doing double duty: it is both the charge and the mechanism by which the accused is prevented from effectively answering it. No other civil proceeding of comparable consequence operates this way. The result is a hearing that wears the formal clothes of due process while systematically stripping the respondent of the practical means to exercise it.

The clinical assessment on which the finding of incapacity rests compounds the problem. A single examination, conducted in a clinical setting, is rarely sufficient to capture the full picture of a person's capacity — which can fluctuate with health, medication, stress, and environment. Genuine determination of incapacity requires evaluation by qualified experts across different settings and over time: not only the doctor's office or the hospital room, but the kitchen, the garden, the familiar routines of daily life where a person may demonstrate judgment, memory, and competence that no clinical encounter would ever reveal. What courts too often receive instead is a brief report, a checkbox, and a signature. On that basis alone, a person can lose the rights of citizenship they have held for a lifetime.

Andrews identifies a further due process failure that is rarely acknowledged: in many jurisdictions, the petition itself — and the accompanying clinical report — is treated as prima facie evidence of incapacity, effectively reversing the burden of proof before the hearing begins. Rather than requiring the petitioner to prove incapacity by clear and convincing evidence, the system places the burden on the person subject to guardianship to prove they are capable of managing their own affairs. For someone already alleged to be incapacitated, often without meaningful representation, that burden is frequently insurmountable. Due process demands a specific presumption of capacity and requires the petitioner to allege and prove specific facts giving rise to a finding of incapacity. Too many states fall far short of that standard — and too many judges in states that have reformed their statutes continue to behave as if they have not.

The Fourteenth Amendment's equal protection guarantee adds a further dimension that Andrews develops with particular force. Older adults subject to guardianship are, as a practical matter, held to a double standard that younger adults are not. Andrews illustrates this vividly: if a middle-aged person squanders their savings, neglects their diet, or makes what others consider reckless financial decisions, those choices may prompt disapproval but are unlikely to trigger a guardianship petition. The same conduct by an elderly person routinely does. Advanced age alone was, at the time Andrews wrote, treated in thirty-five states as a sufficient basis to initiate guardianship proceedings. That is not a protective measure. It is age discrimination — and it violates the equal protection guarantee of the Fourteenth Amendment.

As historian Heather Cox Richardson has observed, the Fourteenth Amendment was ratified in 1868 not as an abstract philosophical commitment but as a direct legislative response to a documented pattern — the Black Codes — in which state legal systems used formally lawful mechanisms to strip rights from people deemed inferior or incapable of governing their own lives. The codes required deference. They restricted association. They criminalized independence. They wore the costume of order and protection while functioning as instruments of control. They were legal in form and devastating in effect.

The parallel to guardianship is not metaphorical. It is structural. When state courts remove the rights of older adults on the basis of age-based assumptions rather than individualized evidence — applying different standards to the elderly than to any other citizen facing comparable legal proceedings — they are operating within a recognizable American tradition: the use of law against the people it claims to protect. Ageism does not merely create the cultural conditions for guardianship abuse. It provides the legal system with the assumptions it needs to make that abuse invisible — to make the removal of rights look like care, and the exercise of power look like protection.

The Fourteenth Amendment was written precisely to interrupt that pattern. It has not yet been fully applied to guardianship. That is the work that remains.

The First Amendment: Freedom of Expression and Association

The First Amendment guarantees, among other things, the freedom of speech and the freedom of association. These are not abstract principles. For a person subject to guardianship, they are the daily texture of a life — the right to call a friend, write a letter, receive a visitor, express a preference, or refuse a relationship.

Guardians routinely exercise authority over these interests. Mail is monitored or withheld. Telephone calls are screened or terminated. Visits from family members are restricted or denied. In some cases, gag orders issued by guardianship courts prohibit family members from speaking publicly about what is happening to their relative — foreclosing not only private association but public accountability.

These restrictions are sometimes justified as being in the best interest of the person subject to guardianship. That justification deserves scrutiny. The First Amendment does not recognize a best-interest exception to the freedom of association. The state may not suppress speech or restrict association merely because a court-appointed guardian has decided, in their largely unreviewable discretion, that a particular relationship is not beneficial. Where guardianship orders operate as prior restraints on speech or systematic restrictions on association, they implicate the First Amendment directly — and the courts have been insufficiently attentive to that implication.

The Fourth Amendment: Unreasonable Search and Seizure

The Fourth Amendment protects against unreasonable searches and seizures and guarantees the right of persons to be secure in their houses, papers, and effects. For a person subject to guardianship, these protections are frequently rendered theoretical.

Guardians may enter and search the home of the person subject to guardianship, inventory and remove personal property, access private financial records, and make decisions about the disposition of a lifetime's accumulated possessions — all without the kind of individualized judicial authorization the Fourth Amendment ordinarily requires. The guardianship order itself, granted in a brief proceeding, serves as a blanket authorization for intrusions that would be constitutionally impermissible in any other context.

The sale of a person's home — often their most significant asset and the center of their personal life — without their consent, over their objection, and for the financial benefit of the guardianship estate, raises Fourth Amendment concerns that have received far less attention than they deserve.

The Sixth Amendment: The Right to Counsel, to Obtain and Cross-Examine Witnesses, and to a Jury

The Sixth Amendment guarantees, in criminal proceedings, the right to counsel, the right to compel the attendance of witnesses, the right to confront witnesses, and the right to a jury trial. While guardianship is a civil proceeding, the magnitude of the liberty interests at stake — which Andrews argues exceed those surrendered in a criminal conviction — demands that analogous protections apply.

On counsel: the right to an attorney is meaningless if that attorney substitutes their own judgment of the respondent's best interests for the respondent's own expressed wishes. Andrews makes this point with precision. The role of counsel in a guardianship proceeding is to advocate zealously for what the client wants — not to make an independent determination of what would be good for them. When courts appoint attorneys who proceed on a best-interests theory rather than a client-directed advocacy model, they are not providing representation in any constitutionally meaningful sense. They are providing a legal fig leaf for a predetermined outcome.

Johns's research complicates but ultimately confirms this point. He documents that by 1998, all fifty states had recognized a statutory right to counsel in guardianship proceedings. Yet he also acknowledges, citing a national study of guardianship practice in Maryland, that even where the statutes are on the books, judges may fail to institute due process reforms due to practical considerations — and that the role of appointed counsel is frequently confused, with attorneys assuming guardian ad litem functions that require them to advocate best interests rather than client wishes. The statute says counsel. The practice says something else. That gap is a constitutional failure, not a statutory one.

On witnesses: persons subject to guardianship frequently lack any meaningful ability to present evidence, call witnesses, or challenge the clinical assessments on which the finding of incapacity is based. Independent neuropsychological evaluation is expensive and rarely court-funded. The clinical assessor whose report drives the proceeding may never appear in court to be questioned. Andrews argues that because the liberty potentially surrendered in guardianship matches or exceeds that surrendered by those to whom the Sixth Amendment facially applies, the right to compel and cross-examine witnesses must be understood as constitutionally required — whether grounded in the Sixth Amendment by analogy, or in the due process and equal protection guarantees of the Fourteenth. Every person making an allegation of incapacity should be available for cross-examination on their expertise, motives, recollection, and the factual basis for their conclusions.

On jury trial: the absence of a jury in most guardianship proceedings leaves a single judge as both trier of fact and arbiter of law — often in a brief, non-adversarial hearing, with a respondent who may be unrepresented or represented by counsel who has just met them. Andrews argues that the jury's variety of experience, diversity of worldview, and common-sense grounding make its involvement not a burden but a necessity in proceedings of this consequence. Johns documents that the statutory right to jury trial has actually declined — from twenty-nine states in 1993 to twenty-seven by 1998 — moving in precisely the wrong constitutional direction. If a small claims defendant can receive a jury trial, a person facing the loss of every fundamental right of citizenship deserves one as well.

The Structural Failure: Deference Without Due Process

The constitutional violations described above occur at the level of the hearing — in the courtroom, in the brief proceeding, in the inadequate assessment and the absent attorney. But there is a deeper structural failure that permits those violations to persist even when they are visible: the way guardianship decisions are reviewed on appeal.

In January 2026, this author submitted to members of the New York State Legislature — including the chairs of the Senate and Assembly Standing Committees on Aging, Judiciary, and Disabilities — a legal analysis titled Deference Without Due Process: Appellate Review and the Constitutional Failure of Adult Guardianship. The brief argues that the routine application of deferential abuse-of-discretion review to guardianship decisions constitutes a structural constitutional failure — one that does not merely tolerate rights violations but actively produces and perpetuates them.

The argument proceeds from a foundational premise: abuse-of-discretion review, properly understood, is not a grant of unlimited judicial authority. It presupposes that the trial court has identified the correct legal standard, grounded its decision in facts supported by the record, and articulated its reasoning with sufficient clarity to permit review. When those conditions are absent — as they routinely are in guardianship proceedings — appellate deference is not a doctrine of restraint. It is abdication.

The Supreme Court's procedural due process framework, established in Mathews v. Eldridge, requires courts to weigh three factors in evaluating whether procedures are constitutionally adequate: the private interest affected, the risk of erroneous deprivation through the procedures used, and the government's countervailing interest. Guardianship fails this test at its core. The private interest is total legal agency — among the most significant interests recognized in constitutional law, exceeding what is surrendered in many criminal convictions. The risk of erroneous deprivation is substantial, driven by abbreviated hearings, reliance on conclusory clinical reports, predictive judgments about future capacity, limited or conflicted representation, and the near-total absence of adversarial testing. The government's interest in efficiency and administrative convenience cannot plausibly justify procedural minimalism in the face of that combination.

Yet appellate courts routinely affirm guardianship orders without engaging this analysis at all — treating trial-court discretion as self-justifying even where the record precludes meaningful review. The Mathews framework demands that procedures be evaluated by their capacity to prevent mistaken deprivation. A system that tolerates opaque reasoning and unreviewable discretion does the opposite: it entrenches error rather than correcting it.

Findings of Fact: Constitutional Gatekeepers, Not Procedural Formalities

Central to this structural failure is the routine absence of articulated findings of fact. Guardianship courts frequently issue orders that extinguish fundamental rights without specifying which rights are being removed, why less restrictive alternatives are insufficient, how the evidence satisfies the applicable burden of proof, or what functional limitations justify the scope of the order imposed. Appellate courts nevertheless affirm these orders, invoking discretion as though it were a substitute for reasoning.

This inversion has serious constitutional consequences. Findings of fact are not procedural housekeeping. They are the mechanism through which judicial discretion becomes accountable and appellate review becomes possible. Without articulated findings, there is no way to determine whether the correct legal standard was applied, whether the evidence was sufficient, or whether the order was narrowly tailored to the person's actual limitations. An appellate court that affirms in the absence of findings is not deferring to discretion. It is relinquishing review altogether.

The requirement is not novel. Administrative agencies must explain their decisions to permit judicial review. Courts terminating parental rights must make detailed findings because the loss is permanent and the stakes are fundamental. Civil commitment requires clear and specific justification because liberty is at stake. Guardianship — which combines the severity of all these deprivations — has been permitted to proceed on less than any of them. That is not a reasoned doctrinal choice. It is an unjustified exception, and it is constitutionally indefensible.

Conclusory findings are no remedy. An order that recites statutory language without explaining how the evidence satisfies each required element — that declares incapacity without specifying its scope, that invokes best interests without identifying alternatives considered — provides no insight into how discretion was exercised, and no basis for constitutional evaluation. Where fundamental rights are extinguished through such boilerplate reasoning, the absence of meaningful findings is not a technical defect. It is a denial of due process.

Secrecy as a Constitutional Failure

The structural problem is compounded by a third feature of guardianship adjudication that has received insufficient constitutional attention: the routine use of secrecy mechanisms that foreclose the correction of error even when error is present.

Sealed records, ex parte practice, closed proceedings, and court-imposed gag orders do not merely limit access to sensitive information. They disable the institutional mechanisms through which due process violations are detected, evaluated, and remedied. They operate cumulatively: secrecy deprives affected individuals and their advocates of the information necessary to challenge erroneous decisions, deprives appellate courts of a record capable of meaningful review, and deprives the public of the transparency necessary to identify systemic patterns of abuse and judicial overreach.

The Supreme Court has repeatedly held that openness is not a discretionary courtesy in judicial proceedings — it is a structural safeguard of due process, implicit in the guarantees of the First Amendment. Courtroom closure is constitutionally permissible only where it is supported by case-specific findings and narrowly tailored to serve a compelling interest. Guardianship practice routinely inverts this standard: sealing is the default, closure is categorical, and gag orders are imposed without individualized findings, temporal limits, or consideration of less restrictive alternatives.

The constitutional harm is not limited to loss of transparency. It is the erosion of the very conditions under which adjudication remains law-governed: reason-giving, contestability, and the possibility of correction. A system structured to prevent error from being seen cannot plausibly claim to correct it.

Sealing and deference operate symbiotically. Secrecy deprives appellate courts of the materials necessary to evaluate error. Deferential review normalizes and excuses the absence of those materials. Together, they convert procedural safeguards into formalities and transform the constitutional obligation to justify deprivations of fundamental rights into an unstated presumption that justification is unnecessary.

State constitutional law reinforces and in some cases exceeds the federal baseline. New York's Article I, Section 6 guarantees due process protections that courts have construed as at least as protective as the federal clause — and in matters implicating personal liberty and dignity, more so. California's Article I, Section 7, Minnesota's Article I, Section 7, and Massachusetts's Declaration of Rights each impose independent due process obligations that are incompatible with truncated hearings, deferential review, and tolerance of systemic error. The problem is not that the law is insufficient. It is that courts are not honoring protections that already exist.

The Eighth Amendment: Cruel and Unusual Punishment

The Eighth Amendment, with its prohibition on cruel and unusual punishment, is not typically invoked in civil proceedings. But the conditions under which some persons subject to guardianship are held — isolated in facilities they did not choose, denied contact with family, deprived of personal possessions, and subjected to chemical restraint through court-authorized medication regimens — raise questions that the Eighth Amendment's underlying principles, if not its literal text, were designed to address.

Where the conditions of a court-ordered guardianship arrangement are punitive in effect — where isolation, restraint, and deprivation are imposed not as necessary consequences of care but as instruments of control — the constitutional prohibition on cruel and unusual treatment provides at least an analogical framework for evaluating their legitimacy. Courts have been reluctant to apply Eighth Amendment reasoning in this context. That reluctance deserves to be challenged.

The Ninth Amendment: Unenumerated Rights

The Ninth Amendment provides that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people. It is among the least litigated provisions of the Bill of Rights — and among the most relevant to guardianship.

The rights most directly threatened by guardianship — the right to make decisions about one's own body and medical care, the right to choose where one lives, the right to manage one's own financial affairs, the right to maintain intimate relationships — are not all explicitly enumerated in the Constitution. They are, however, recognized in the broader constitutional tradition as fundamental aspects of personal autonomy and human dignity. The Ninth Amendment provides the textual foundation for arguing that these unenumerated rights retain constitutional protection even when they are not explicitly catalogued — and that their removal by court order requires the same rigorous justification as the removal of any enumerated right.

The Twenty-Fourth Amendment and the Right to Vote

The right to vote is among the most fundamental rights of democratic citizenship. In many states, a person subject to guardianship loses that right automatically — not because a court has made an individualized finding that they lack the capacity to cast a ballot, but because the guardianship order, by its terms, extinguishes voting rights as a collateral consequence of a finding of general incapacity.

This automatic disenfranchisement is constitutionally suspect. The Supreme Court has repeatedly held that voting rights may not be restricted without a compelling governmental interest and narrow tailoring. An across-the-board rule that strips voting rights from all persons subject to guardianship, regardless of the nature or degree of their incapacity, cannot survive that standard. The right to vote is not a proxy for general legal competence. A person may lack the capacity to manage a complex financial portfolio while retaining the full capacity to understand candidates, issues, and the act of casting a ballot. Treating those two determinations as equivalent is not only constitutionally dubious — it is empirically wrong.

The Americans with Disabilities Act and Olmstead v. L.C.

No constitutional and statutory analysis of guardianship is complete without sustained attention to the Americans with Disabilities Act and the Supreme Court's landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999).

The ADA prohibits discrimination against persons with disabilities in the provision of public services and programs. Title II of the Act requires that states administer their services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. This integration mandate — and its enforcement through Olmstead — has profound implications for guardianship.

In Olmstead, the Supreme Court held that the unjustified institutionalization of persons with disabilities constitutes discrimination under the ADA. States are required to provide community-based services to persons with mental disabilities when such services are appropriate, when the affected persons do not oppose community-based treatment, and when the placement can be reasonably accommodated. The decision established, as a matter of federal law, that segregation and institutionalization are not neutral administrative choices — they are discriminatory acts when less restrictive alternatives are available and appropriate.

The implications for guardianship extend well beyond the question of physical institutionalization. In a landmark law review article, Leslie Salzman, Clinical Professor of Law at the Benjamin N. Cardozo School of Law, argues that guardianship itself — the legal construct of substituted decision making — constitutes a form of disability-based segregation that violates the ADA's integration mandate. 

Salzman's analysis begins with what she calls the constructive isolation of guardianship. When a person loses the legal right to make financial, medical, and personal decisions, they are systematically removed from the interactions of ordinary civic and community life. The person who cannot authorize their own transactions stops banking and shopping independently. The person whose medical decisions pass to a guardian stops being consulted by their own physicians. The person whose social associations are controlled by a guardian loses contact with friends, family, and community. This isolation is not physical confinement — but it is real, cumulative, and precisely the kind of disability-based exclusion the ADA was enacted to eliminate. The ADA's finding that the historical isolation and segregation of people with disabilities is a serious and pervasive social problem applies with full force to the legal isolation that guardianship imposes.

Building on Olmstead, Salzman argues that states are required to provide decision-making assistance in the least restrictive manner appropriate to a person's actual needs — and that supported decision-making arrangements, which preserve the legal rights of the person while providing assistance in making and communicating decisions, satisfy this requirement in ways that guardianship does not. Crucially, she argues that supported decision making is not a new service the ADA cannot require. It is an integrated alternative to decision-making assistance that states already provide — just in a more restrictive and segregating form. Under the reasoning of Olmstead and subsequent integration mandate cases, states may be required to modify their guardianship systems to offer supported decision-making options as a less restrictive alternative, unless they can demonstrate that doing so would fundamentally alter their programs.

When a guardian removes a person from their home and places them in a nursing facility over their objection, without a genuine evaluation of less restrictive alternatives, that placement may constitute exactly the kind of unjustified institutionalization that Olmstead condemns. When a guardianship court routinely imposes plenary guardianship without meaningfully considering supported decision-making, powers of attorney, or other less restrictive alternatives, it may be administering its program in violation of the ADA's integration mandate. And when the legal construct of guardianship itself isolates a person from the decisions and interactions that constitute a full civic life, Salzman argues, the ADA's promise of integration has been broken — not at the door of an institution, but in a probate courtroom.

Olmstead provides the doctrinal foundation. Salzman provides the analytical framework for applying it to guardianship directly. What remains is the institutional will to build on both.

The Standard by Which Incapacity Is Judged

Andrews identifies the standard for determining incapacity as the most consequential and most frequently deficient element of guardianship law. Three principles, he argues, must govern any constitutionally adequate standard.

First, incapacity is a legal determination, not a medical conclusion. Medical opinion is relevant, but it is not dispositive. A diagnosis of dementia, Alzheimer's disease, or any other condition does not automatically establish legal incapacity. The law's question is not what condition a person has, but what that condition prevents them from doing — and what, if anything, requires judicial intervention. Johns's review of state statutes confirms that many jurisdictions have moved toward functional definitions of incapacity that focus on specific abilities rather than diagnostic labels. The constitutional problem is not only that some statutes remain vague — it is that even well-drafted functional statutes are routinely misapplied by judges who continue to treat medical diagnosis as determinative.

Second, capacity is not binary. A person may lack capacity in one area while retaining it fully in others. A finding of incapacity to manage complex financial affairs does not establish incapacity to decide where to live, whom to see, or what medical treatment to accept or refuse. Plenary guardianship — which removes all of these rights at once — is constitutionally overbroad whenever the incapacity it addresses is less than total. Andrews is unequivocal on this point: an all-or-nothing guardianship scheme, applied to partial incapacity, is a deprivation of liberty that exceeds the state's legitimate interest and fails constitutional scrutiny. Johns acknowledges that limited guardianship has become the stated policy preference in many reformed statutes — but also that plenary orders remain the default in practice, because courts lack the capacity or the inclination to design individualized alternatives.

Third, capacity is context-dependent. It can fluctuate with health, medication, environment, and circumstance. A clinical assessment conducted on a bad day, in an unfamiliar setting, under stress, may not reflect the person's actual functional capacity in the conditions of their daily life. Courts must account for environmental factors — existing support structures, living arrangements, access to family and community resources — before concluding that judicial intervention is necessary at all. Andrews proposes a functional model of capacity assessment that focuses on specific, concrete activities of daily life rather than on vague statutory formulations. Statutes that grant too much discretion to judges and fact-finders, without providing specific and measurable criteria, produce inconsistent results, invite bias, and cannot withstand constitutional scrutiny.

Conclusion: The Gap Between the Law and the Lives It Governs

Andrews wrote more than two decades ago that the reforms required are, in the main, commonsense measures — measures that stem from treating the guardianship proceeding as what it is: an adversarial process in which a citizen stands to lose more than a convicted criminal, and deserves at least as much protection.

Johns responded that the statutes had improved — and he was right. But Johns's own evidence reveals the deeper truth that neither statutory reform nor judicial goodwill has been sufficient to close the gap between constitutional requirement and constitutional reality. Judges exercise powers beyond what statutes grant. Counsel confuse their roles. Hearings proceed in minutes. Clinical assessments substitute for genuine functional evaluation. Plenary orders issue where limited ones would serve. And the person subject to guardianship — legally silenced, practically isolated, and procedurally disarmed — has almost no effective means to object.

The three structural failures identified in this essay — deference without due process, findings of fact routinely absent or conclusory, and secrecy mechanisms that foreclose external scrutiny — do not merely permit constitutional error to occur. They ensure that constitutional error, once embedded in a guardianship order, is effectively permanent. The Mathews v. Eldridge framework demands procedures calibrated to minimize erroneous deprivation. Guardianship practice, as currently structured and reviewed, inverts that demand at every level.

The gap between the law and actual practice is well documented. Narrowing that gap, particularly with respect to fundamental constitutional principles, should be a major objective of any guardianship system. It has not been. That failure is the constitutional crisis Andrews identified. It has not been resolved by the decades of statutory reform that followed. It remains.

Companion Brief

This publication's companion brief, Deference Without Due Process: Appellate Review and the Constitutional Failure of Adult Guardianship, submitted to the New York State Legislature in January 2026, examines in full technical and doctrinal detail how the combination of deferential review, opaque proceedings, and sealed records forecloses the appellate correction that constitutional error requires. It was submitted to the chairs of the Senate and Assembly Standing Committees on Aging, Judiciary, and Disabilities. 

 Legislative Overview

For legislators, advocates, and families navigating the system, the companion overview Adult Guardianship as a Due-Process and Accountability Failure addresses a practical and under-discussed dimension of the same problem: many guardianship cases do not meaningfully reach appellate courts at all, and when they do, the record and posture often make genuine appellate correction unlikely. The system's corrective mechanisms are routinely unavailable to the very people whose rights are being curtailed.

The constitutional case for guardianship reform is not a peripheral argument. It is the foundation on which every other argument rests. A system that removes the rights of citizens must be held to the Constitution that protects them. That is not a radical proposition. It is the minimum that the rule of law requires. 

Sources and Authorities

United States Constitution 

First Amendment 

https://law.justia.com/constitution/us/amendment-01/  

Fourth Amendment 

https://law.justia.com/constitution/us/amendment-04/  

Fifth Amendment 

https://law.justia.com/constitution/us/amendment-05/  

Sixth Amendment 

https://law.justia.com/constitution/us/amendment-06/  

Eighth Amendment 

https://law.justia.com/constitution/us/amendment-08/  

Ninth Amendment 

https://law.justia.com/constitution/us/amendment-09/  

Fourteenth Amendment 

https://law.justia.com/constitution/us/amendment-14 / 

Twenty-Fourth Amendment

https://law.justia.com/constitution/us/amendment-24/  

Abuses in Guardianship of the Elderly and Infirm: A National Disgrace, Hearing Before the Subcomm. on Health and Long-Term Care of the House Select Comm. on Aging, 100th Cong. (Sept. 25, 1987) (Rep. Claude Pepper, Chairman).

https://files.eric.ed.gov/fulltext/ED297241.pdf 

American Bar Association Commission on Law and Aging, Advancing Guardianship Reform and Promoting Less Restrictive Options: WINGS Working Interdisciplinary Networks of Guardianship Stakeholders Briefing Paper (2020).

https://www.americanbar.org/content/dam/aba/administrative/law_aging/2020-wings-briefing-paper.pdf 

Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101 et seq.

https://www.ada.gov/law-and-regs/ada/ 

Claude Pepper Foundation

https://claudepepperfoundation.org/ 

Mathews v. Eldridge, 424 U.S. 319 (1976)

https://supreme.justia.com/cases/federal/us/424/319/ 

Olmstead v. L.C., 527 U.S. 581 (1999)

https://supreme.justia.com/cases/federal/us/527/581/ 

Mark D. Andrews, The Elderly in Guardianship: A Crisis of Constitutional Proportions, 5 Elder L.J. 76 (1997)

https://theelderlawjournal.com/wp-content/uploads/2019/04/7-The-Elderly-In-Guardianship-A-Crisis-of-Constitutional-Proportions.pdf 

A. Frank Johns, Ten Years After: Where Is the Constitutional Crisis with Procedural Safeguards and Due Process in Guardianship Adjudication?, 7 Elder L.J. 33 (1999)

https://theelderlawjournal.com/wp-content/uploads/2019/04/Ten-Years-After-Where-Is-the-Constitutional-Crisis-with-Procedural-Safeguards-and-Due-Process-in-Guardianship-Adjudication-1.pdf 

John Parry, Involuntary Civil Commitment in the 90s: A Constitutional Perspective, 18 Mental & Physical Disability L. Rep. 320 (1994) 

https://www.jstor.org/stable/20783589 

Heather Cox Richardson, Letters from an American (March 21, 2025)  

https://heathercoxrichardson.substack.com/p/march-21-2026 

Leslie Salzman, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans With Disabilities Act, 81 U. Colo. L. Rev. 157 (2010)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567132