Toxic: A Feminist Legal Theory Approach to Guardianship Law Reform

Margaret Bushko

From Netflix’s 2021 film “I Care a Lot” to the New York Times’ unauthorized documentary “Framing Britney Spears” and the #FreeBritney movement, guardianships and conservatorships have burst into the upper echelons of the popular consciousness in the last year. Fundamentally, conservatorships in the United States are designed to help protect some of the most vulnerable members of the population—providing legal and financial oversight for those who are unable to manage their own affairs due to mental illness, substance abuse, dementia, or other medical conditions. While conservatorships are meant to help those who are unable to manage their finances or certain day-to-day decisions, the welfare of the conservatee is not always protected as well as it could be throughout the court proceedings or the conservatorship process overall. Modern courts have come to recognize conservatorship proceedings as adversarial, because potential heirs and creditors often have interests that conflict with each other and with the conservatee.

The United States has a long history of exploitation disguised as “care,” from early coverture laws in which a woman’s legal rights were subordinate to those of her husband, to the use of guardianships to remove Native Americans from their land. Feminist legal theory, which has existed in some form for over a century, but was formalized as a body of work in the academic world in the 1970s, highlights the ways in which the law perpetuates gender inequality. Various categories of feminist legal theory offer insights into laws that are either gender-neutral with a discriminatory impact, or gender-specific with a paternalistic, discriminatory effect. While adult conservatorships have been extensively examined for their potential for elder abuse, this Comment seeks to offer a different perspective on conservatorship law. This Comment will examine the historical development of conservatorship laws, as well as the emergence of feminist legal theory and its sub-categories. This Comment will also examine conservatorships through the lens of feminist legal theory (particularly the sub-categories of dominance theory and anti-essentialism), exploring the ways in which seemingly neutral conservatorships legally perpetuate and codify existing social issues and gender inequality. Drawing upon the insights gained from the feminist legal perspective, this Comment will compare the conservatorship laws of California and the adult guardianship laws of Maryland as a case study. While conservatorship laws differ by state, the statutes for California and Maryland offer a helpful point of comparison, as they reflect legislative approaches to conservatorships and judicial intervention that are at opposing ends of the philosophical spectrum. Finally, this Comment will discuss proposed conservatorship reforms at the federal level and in several states, and recommend reforms to adult guardianship laws in the state of Maryland that aim to increase protection of individual liberties under adult guardianships. In particular, this Comment recommends that the Maryland General Assembly pass a law requiring detailed annual reporting of conservatorship data for the purpose of transparency and accountability.