News coverage of guardianship and conservatorship matters abound. But how did these systems come to be? That is, what is the history of guardianship?
Ancient Rome and even earlier
Early Roman law adopted processes that existed even before the modern era. In 449 BC, for instance, the Twelve Tables of Roman law provided for establishment of a curatelle and appointment of a curator for incapacitated adults. In fact, those ancient terms are still in common use in France, and in Louisiana (which largely maintains its French legal origins). Louisiana now calls the process itself an interdiction, but retains the curator title for the person appointed to manage the incapacitated person.
Those terms are roughly analogous to what we in Arizona would call a guardianship today. They also encompassed the separate-but-related notion we adopted (just 50 years ago) of a “conservatorship.” But of course, ancient Roman processes were far less precise and not nearly as closely regulated. And they arrived in Britain in the first century AD along with Roman soldiers and bureaucrats.
Before Romans left Britain, they had introduced other distinctions. For instance, the guardian of a child under 14 (or 12 for girls) was called a “tutor.” And the Roman law distinguished between adults who were feeble-minded and insane. We don’t endorse the now-archaic terms, but the distinction continues to the present day, as guardianship systems are often different for the developmentally disabled, the feeble elderly, and the mentally ill.
Feudal England
The Norman conquest of Britain in 1066 brought in a new legal system. But there was still a structure for overseeing the care of incapacitated adults. And, though the ages were different than those we think of today, there was a system for management of the affairs of minor children, as well.
Generally, the crown took control of and managed the affairs of minor children who owned property. And the King kept the profits from that property until the child attained majority. Initially, similar rules applied to adults who had become incapacitated or had been incapacitated before attaining their majority. Over time, though, the local noble would increasingly retain control over the affairs of adults who had lost their capacity.
Resentment built over the nobles’ perception that they were losing control over property rightly belonging to them (forgetting that they — or their ancestors — had received that property from the King initially). The issues continued to agitate the barons, who by the beginning of the thirteenth century had reached a breaking point. And one of their key complaints related directly to the modern history of guardianship.
The Magna Carta in the history of guardianship
You probably know about the Magna Carta, signed by King John and a group of unhappy barons on June 15, 1215. The original Magna Carta included 63 clauses, and created an early version of the House of Lords to act as a check on the King. But what you might not know is that the first Magna Carta included several clauses expressly dealing with guardianship.
Most of the issues the barons had with guardianship focused on minors who had inherited wealth. The very first clause of that original Magna Carta guaranteed the independence of the English Church. But the next five dealt with the death of a baron and the property left to a minor child. Well, that plus the ability to control the marriage of the minor heir.
Interestingly enough, several other sections dealt with other issues germane to the modern probate practice — like the rights of a widow to receive her deceased husband’s property “at once and without trouble.” But we digress.
The Magna Carta, of course, was nullified by Pope Innocent III just ten weeks after King John signed it. But it was revised and reissued by King Henry III shortly after King John’s death. The Pope did not make any objection to the revised version. But that does mean that it’s hard to say that any one document is “the” Magna Carta. Nonetheless, the guardianship provisions stayed in the English law until the mid-nineteenth century.
Ecclesiastical Courts in the History of Guardianship
By the early fourteenth century, most of the management of guardianships had moved to the ecclesiastical courts. That church-based court system allowed for legal resolutions other than money damages, the primary province of the “law courts” of the English legal system. The King was nominally in charge of these ecclesiastical courts, but they were operated by clerics.
Among the other subjects of the ecclesiastical courts were probate, divorce and criminal matters. These courts applied Roman law and were notable for long, scholarly and reasoned opinions. From early times, a parallel legal system developed into the courts of equity. Those were usually overseen by churchmen but contolled by the Chancellor of the Exchequer. They tended to have overlapping authority. The distinction: the ecclesiastical courts dealt with sin and spirituality, while the courts of equity focused on fairness and conscience.
The specific guardianship-related provisions of the Magna Carta had long been abandoned when, in 1863, the English Statute Law Revision Act recognized the legal shifts and repealed many of the original clauses — including all of those related to guardianship. But by that time the American system had developed its own version of guardianship — and mostly with remarkable consistency from state to state.
American history of guardianship
The American colonies (and later states) had strong interests in managing the welfare of the poor, the mentally ill and people with limited capacity. But even the relatively more enlightened views that prevailed by that time made little distinction between taking care of financial and personal care matters.
American states almost universally (with the exception of a handful of states — or commonwealths — that adopted their laws from a different source, like Louisiana) used the term “guardianship” to refer to court supervision of both finances and welfare. By fits and starts, the different state systems began to recognize that a given person might require a guardianship over their person but not their estate, or vice versa. But until the beginning of the twentieth century, courts seldom took the time to make the distinction clear, and appointment of different individuals to fill the two roles was extremely rare.
Meanwhile, in Arizona
As with the distinction between guardianship of the person and guardianship of the estate, distinctions between different flavors of incapacity were rarely clear. Arizona’s first statutory framework, adopted in 1912 with statehood, provides for appointment of a guardian for individuals who are “insane, or is mentally incompetent to manage his property.” Those terms remained undefined; presumably, the statute’s authors thought they made perfect sense.
It was not until 1945 that Arizona clearly distinguished between guardians of the person and the estate, and the possibility that different people might fill the different roles, or that appointment of only one of the offices might be appropriate. That distinction dealt with the World War II phenomenon of large numbers of missing servicemen.
And it wasn’t until Arizona’s 1974 adoption of the Uniform Probate Code that the terms “guardian of the person” and “conservatorship of the estate” made the distinction explicit. Arizona was not alone in this evolution of the language. At about the same time, some other states began to refer to conservators of the person or estate, or distinguishing between guardians for minors and conservators for adults. Arizona adopted the more-common (but hardly universal) convention of guardianships of the person and conservatorships of the estate.
What does it all mean?
Our modern guardianship and conservatorship system has ancient roots. It began at least two millennia ago. From early days, it focused as much on the rights of the guardian as on protecting the subject of the proceedings. But it has come a long way.
The opportunities for abuse and neglect are unquestionably still there. But more modern concepts have reduced the risk. Guardians today have to file annual reports about the individual’s progress, and have some high hurdles to overcome from the beginning of the proceedings. And conservators must account annually, and post a surety bond, to help protect against abuse.
But perhaps most importantly, the shift in emphasis has made a difference. Today, guardians and conservators must pay attention to, and prove, that they are protecting the individual’s rights and well-being. That may seem obvious, but it hasn’t always been the focus throughout the history of guardianship.
