Guardianship and Jurisdictions – an essential relationship

This article is part of a series that we (Jo Spencer and I) are writing on how a digital model for Guardianship can be implemented. These articles are based on, and highlight, the Sovrin Foundation work that we co-chaired.

The first article (published on LinkedIn here) gives the background to the work of the Sovrin Guardianship Working Group and describes how we got to what we think is a powerful and simple model for Guardianship. It also names the team we were lucky enough to work with.

The second article is Jo’s explanation of how this model of Guardianship can benefit the Financial Services Sector, and can be found on LinkedIn here.

This article visits the fundamental role that of the jurisdiction in a guardianship arrangement, and how Verifiable Credentials and Decentralized Identifiers – the building blocks of Self-Sovereign Identity (SSI) based solutions – can be used to deliver powerful, digital, privacy preserving guardianship arrangements that can work across multiple jurisdictions.

In the Implementation Guidelines document, we present a mental model of Guardianship (building on work performed in parallel in the eSSIF-Lab Framework) that describes how each party is involved in defining, issuing and “running” a guardianship arrangement. 

A summary diagram of the model presented in the Implementation Guidelines document is provided below:

This article focuses on the left hand side of this diagram, the Jurisdiction.

A key simplifying moment in our thinking about guardianship was when we recognised the essential role of the jurisdiction in any guardianship arrangement.

The jurisdiction is the context in which the guardianship arrangement is defined, recognised and enacted. For many guardianship arrangements, such as powers of attorney, guardianship for children, executors of estates, we can expect the jurisdiction to be a sovereign legal body such as a State or a Country that can set and enforce laws. Clearly, for a legally binding arrangement, we need the arrangement to comply with the laws of the jurisdiction in which it is created.

In the model depicted above , the Jurisdiction defines the types of guardianship arrangement that it recognises, specifies the objectives for guardianship arrangements that are served by different guardianship types, enforces guardianship arrangements, and recognises legal entities (people) that are involved in guardianship arrangements.

Drilling down a little further, the Implementation Guidelines makes a distinction within the document between Legal Systems and Jurisdictions. The definitions used within the document are:

We explore how this works below, and provide a way of considering how this can be extended.

It is possible, and we think very useful, to consider jurisdiction in a broader context. For example, we might consider a not-for-profit aid organisation operating a camp to be a jurisdiction, or a for-profit company and its employees, an indigenous tribal group and their people, and perhaps even social groups such as families. Each of these jurisdictions is different in terms of the people that recognise the authority of the jurisdiction and the nature of guardianship arrangements that it recognises.

Ideally Jurisdictions will also choose to recognise the authority of other jurisdictions when this is appropriate, so that guardians and dependents are able to prove their arrangement and the rights and duties that come with it as they present themselves to new jurisdictions.

The “power” or utility of guardianship credential can be seen as proportional to the function it provides within the jurisdiction and the number of other jurisdictions that recognise it. In a similar way to passports, the more widely recognised a jurisdiction is by other jurisdictions, the more powerful/useful the credentials are that it issues. [you can read an article by the World Economic Forum on this topic here]

The scenarios considered in the 2019 Sovrin Guardianship Whitepaper are a child refugee (Mya) and a senior living with dementia (Jamie). We explored these use cases in some detail in the implementation guidelines using a full transcript for the analysis (the original use cases are presented as videos). 

In Mya’s case, the jurisdiction of the guardianship relationship was deemed to be the non-governmental organisation (NGO) running the camp. In the Jamie use case the Jurisdiction was deemed to be the country (or State) in which Jamie’s wife was recognised as the guardian of Jamie.

There were additional complexities in both use cases. In the Mya use case for example: 

In Jamie’s use case we had:

The implication in each of these use cases is that guardianship credentials are made useful when they are recognised by the verifier (the person who needs to be convinced that the guardianship arrangement is valid and allow something to happen for the guardian or dependent). 

For example, if nation states recognise an NGO issued credential, then the credential becomes useful in these nation states as well as within the NGO. 

We expect that Jurisdictions will create a rich diversity of guardianship credential types with associated rights and duties for the Guardian and Dependent. The technology of linked data and Verifiable Credentials, and emerging concepts such as overlays capture architecture provide mechanisms which can make this variety possible to process digitally.

It may seem attractive to look for a global “standard” for guardianship, however we identified early on that we did not have that right, and nor does any other organisation that we know of. Guardianship is the preserve of the Jurisdictions in which it is defined. It is essential that the design can support the different ways in which it is recognised within these jurisdictions.

The Verifiable Credentials “container” that we describe in the Implementation Guidelines and Technical Requirements documents is intended to be flexible enough to accommodate all variations of guardianship arrangement.

This flexibility gives us a decentralised and “loosely coupled” quality to the design. Guardianship credentials can be issued by multiple issuers in multiple jurisdictions and these credentials can be used independently. We can accurately mirror our “real world” understanding of Guardianship without the need to take over digital wallets or have multi-purpose skeleton keys. We believe designs for digital guardianship should focus on maximising the benefit, minimising the risks, and preserving the dignity of guardians and dependents.

We provide a few examples organisations below from the countries that the team were personally familiar with. All are liberal democracy based jurisdictions. This is clearly a small subset of the broader, global, picture of how guardianship is understood across other jurisdictions and cultures. However, even this limited view shows that while there are similarities, there are important differences in how guardianship is seen in jurisdictions, even between states in the same country.

Australia: NSW

Office of the Children’s Guardian (https://www.kidsguardian.nsw.gov.au/) 

Australia: VIC

The Office of the Public Advocate, Guardianship and administration https://www.publicadvocate.vic.gov.au/guardianship-and-administration   

Australia: QLD

Office of the Public Guardian (https://www.publicguardian.qld.gov.au/ )  

Netherlands

[business page in English] Legal Representation https://business.gov.nl/regulation/legal-representation/ 

New Zealand

Ministry of Justice, guardians and enduring powers of attorney https://www.justice.govt.nz/family/powers-to-make-decisions/

United Kingdom

Ministry of Justice, Office of the Public Guardian (https://www.gov.uk/government/organisations/office-of-the-public-guardian)  

It took us some time to realise the importance of Jurisdictions, and the simplification they offered to our thinking [you can read about that in our first post of Guardianship here].

Hopefully this article has provided sufficient explanation of why we think the role of the jurisdiction is essential in understanding guardianship and in designing its digital manifestation.

One thing that is very important to those of us who worked on this framework is that it must be able to support guardianship as understood by different countries and cultures. This is one of the key areas that we are very keen to explore and understand as we test out this approach.

We are very keen to hear views, comments, questions and suggestions. This is very much a work in progress for us. While we believe the work is mature enough to publish and be useful, we’re also mature enough to look forward to it being continued and improved by others.