Home / / Guardianship

Guardianship

Overview | Clinical Scenarios | Additional Tips | References
By Grace Guarnieri and Deborah Giorgi-Guarnieri

OVERVIEW

General Principles

Guardianship or conservatorship is a legal process created to provide support for the individual’s decisions and protection for the individual who a court has found to be in need of a legal guardian or conservator.

  • In general, a guardian is a person the court appoints to make decisions with respect to the personal affairs of another individual. In contrast, a conservator is a person the court appoints to make decisions with respect to the property or financial affairs of another individual. (Link: See page 4) Some states use the terms interchangeably. (Link: VA Legal Aid)
  • Traditional concepts of guardianship dealt with the property of an individual who suffered temporary or permanent disability. (1) More recently, guardianship over a person entails broad powers over the person’s decision-making, healthcare, legal status, and personal affairs. Guardianship over a person might exist independently or co-exist with conservatorship over property. (1) Newer concepts of guardianship take three basic forms: guardianship or conservatorship over property, guardianship over a person, and guardianship over person and property. (3) The latter two forms are relevant to this discussion. 
  • The powers of the guardian are limited to the specific incapacities of the individual. (1) Courts considering legal guardianship issues and the clinicians evaluating the individual are tasked with determining the true incapacities of the person before declaring that the individual is partly or wholly incompetent. (1) Legal guardianships can be temporary or permanent. Once permanent guardianship is established, it is usually difficult to modify. (2) 
  • A guardian may be a family member or friend, but a guardian may also be a professional. (3)
  • Generally, to be considered competent, a person shall possess: (1) an understanding of both the nature of the person’s situation and the nature of his/her alleged impairments, (2) a factual knowledge of the issues, and (3) the ability to rationally process information to reach a decision pertaining to the issues. (1)  Capacity and/or competency are state-defined legal terms. (2) (link: See Table 1 on p. 63)
  • Practically, clinicians assess and determine their patients’ abilities to care for self and make medical decisions in everyday practice. Sometimes the clinician encounters a patient who needs more comprehensive evaluations of their abilities and refers the individual for guardianship proceedings. (1) In guardianship proceedings, court appointed health care experts (usually psychiatrists and psychologists) provide independent medical examinations (IME’s), individually or as a team. Often, in addition to background information and a review of the patient’s current treatments, the evaluations focus on social, conceptual and practical adaptive functioning. (2) (link: See Table 2 on p. 68)
  • The American Bar Association has created a PRACTICAL Tool that helps lawyers consider less restrictive alternatives to guardianship. (8) This may be a helpful tool for physicians in assessing patients facing guardianship issues. 

Special Considerations

Special considerations arise with the who, when, what situation, why, and where of guardianship.

  • Categories of persons subject to guardianships include the psychiatric patient, person with disabilities, medically ill or delirious patient, head trauma patient, aged person, and person with dementia. (1, 3)
  • The National Guardianship Association (NGA) advises that reasonable use of guardianship occurs “when a person can no longer make or communicate safe or sound decisions about [their] person and/or property or has become susceptible to fraud or undue influence.” (3) 
  • National Core Indicators (NCI) data reveals that individuals with guardians are less likely to: live in their own dwellings, participate in making life choices, engage in community activities, invoke their rights, undertake jobs, participate in supportive service plans, communicate with friends, and go on dates or marry. (3a)
  • Persons suffering serious mental illness may lack decision making capacity. Cognitive impairment (not level of insight, diagnosis, or demographics) is the greatest contributor to impaired functional decision making. Neuropsychiatric testing and direct functional assessment, with and without available supports, help determine decision making capacity. (4)
  • The legal right  to make decisions and enter into contracts on behalf of one’s self is considered legal capacity. Mental capacity refers to a person’s underlying cognitive abilities and skills and how they utilize these for decision-making. Mental capacity may vary with the complexity of the decision. The ability to express intention and will is a part of mental capacity. (2)

Jurisdictional Considerations

For an overview of judicial proceedings, watch the video. (Embed video here.)

  • General Considerations: The definition of incapacity and the legal standards of proof for guardianship or conservatorship vary from state to state. In general, (2) Probate laws of the states primarily guide guardianship or conservatorship proceedings. (2) Theoretically, state courts impose guardianships or conservatorships as a last resort. (2) The National Council on Disability has opined that persons are denied due process if less restrictive alternatives to guardianship are not considered. (2) Generally, a court should grant guardianship over a person in a manner that preserves as much of that person’s autonomy as possible. (3) (11, See Figure 1 on p. 55)
  • State Considerations: Depending on the state, individuals subject to guardianship are afforded different degrees of deference in terms of their wishes. (2) Similarly, the definition of legal incapacity and legal capacity required to initiate guardianships vary from state to state. (2, See Table 1)
  • Standards of Proof: Three standards of proof may be used in guardianship proceedings: (1) beyond a reasonable doubt, (2) clear and convincing evidence, and (3) preponderance of the evidence. (11, See p. 61) Most states use a clear and convincing evidence standard, meaning that there must be a high probability of the truth of the facts. (2)
  • Decision-Making Standards: There are five possible state legal decision-making standards: (1) surrogate or substituted decision-making, (2) best interest of the person, (3) maximum self-reliance, (4) least restrictive, and (5) other. (2)
  • After the 2013 Virginia decision in the case Ross and Ross v. Hatch, states have tended to recognize the importance of Supported Decision Making in lieu of a legal determination of permanent guardianship. (9) Supported Decision Making may be very helpful for clinicians because it involves helping the individual work with family and close friends to understand the options and choices they face in each given situation. (6)

CLINICAL SCENARIOS

Guardianship is primarily a court proceeding. The following Clinical Scenarios demonstrate psychiatrists’ different roles in guardianship proceedings.

Scenario #1: A 29-year-old female, Jenny, with Down Syndrome has countered her guardians’ petition to be her permanent guardians. The court has asked a forensic psychiatrist to evaluate her need for permanent guardians. The forensic psychiatrist found that Jenny has worked at the same community-based, decent-paying job for 5 years, has lived in and cared for her own apartment, remained politically active,  attended church regularly, and has seen her friends frequently. She had a limited IQ. She demonstrated some short-term memory deficits on testing. She had assistance from friends and a local agency with decision-making, safety, and life choices. She expressed that she enjoyed her quality of life when living independently. What should the forensic psychiatrist advise the court?

Discussion: This is the Hatch case. In the Virginia case of Ross and Ross v. Hatch, Jenny Hatch was a was 29-year-old woman with Down Syndrome. Two experts were obtained and determined that Hatch had an IQ of between 46 and 57, and their evaluations evidenced that Hatch had significant trouble with short term memory. Although one expert determined that Hatch should live dependently with her guardians, the second expert found that Hatch would not meet the statutory definition of “incapacitated” if she had support in making financial and property-related decisions. The court also heard evidence from witnesses who testified to troubles that Hatch had in the areas of personal finances and judging safety around strangers. The court ultimately granted a limited guardianship over Hatch with a goal of transitioning to supported decision-making. (9)

Scenario #2: A resident is on call when an 85-year-old man, Thomas, comes into the emergency room with his friend, Don. Thomas is unable to move his right arm and leg, and he is confused. He has a history of mild dementia and cardiovascular disease. Don presents the resident with Power of Attorney (POA) paperwork, making him the POA, that was signed last week. Don requests only a minimal work-up. Thomas says he wants full care. Thomas asks the resident to call his son who lives nearby to help him make healthcare decisions because Don doesn’t have authority to make decisions for Thomas. Don tells the resident that it is not necessary to call the son because Thomas signed the POA and requested a “do not resuscitate” status. What should the resident do?

Discussion: If the wishes of the patient align with the POA, then the resident could assume assent and proceed. When the wishes of the patient do not align with those of the POA, as in this case, the resident may seek further information. The resident may call the son. In emergency situations, the resident can petition the court for an emergency order to proceed with treatment. The issues of the POA can be dealt with later.

This fact situation is similar to the Hoellen case. In the Illinois case In re Estate of Theodore Hoellen, Nos. 1-05-0067, 1-05-0090 (Ill. App. Ct. Aug. 29, 2006), Hoellen was an octogenarian suffering with dementia who lived on his own. A public guardian was appointed from the Chicago Office of the Public Guardian to advocate for Hoellen after a man, Donald Owsley, was accused of financially exploiting Hoellen. Owsley, a police officer living in Chicago, first met Hoellen in 1999 while responding to a call from one of Hoellen’s neighbors. Hoellen, confused, had entered the neighbor’s home instead of his own. The Public Guardian who later filed the complaint against Owsley presented evidence that Owsley had exploited Hoellen financially over time. The Public Guardian also showed that Hoellen’s dementia was progressive and that he was incapable of informed decision making. In the time that Owsley and Hoellen had known one another, Hoellen had made Owsley the beneficiary of a death benefit policy and the executor of a trust in Hoellen’s name which would have made Owsley the sole heir of Hoellen’s estate. Hoellen had also given Owsley powers of attorney for his real property and health care. (10)

The appeals court affirmed the probate court’s award of nominal damages in the amount of $1 and punitive damages in the amount of $50,000. The court awarded punitive damages because it viewed Owsley’s conduct as reprehensible and subject to punishment. (11)

ADDITIONAL TIPS

  • Since judges rely on lawyers and medical professionals to gather facts and inform the court about the proposed guardianship, clinicians should be prepared to provide statements for the guardianship petition. (5) The clinician also may be mandated to evaluate the capacity of the respondent/patient for a hearing within a certain number of days prior to the hearing. (5)
  • Medical professional’s report typically contains: 
    • A description of the person’s cognitive and functional limitations and abilities, including specifics about the medical conditions, cognitive or functional limitations, temporary or reversible status;
    • A cognitive and/or mental status evaluation, including alertness, orientation, language, memory, insight, reasoning, and visuospatial ability;
    • An evaluation of the person’s mental conditions (psychiatric as well as neurological), physical conditions, adaptive behavior, educational potential, and social skills;
    • The person’s ability to carry out activities of daily living (ADL’s) and instrumental activities of daily living (IADL’s)(5, see p. 166 for examples);
    • The person’s prognosis and potential treatment plan; and,
    • The date of the evaluation. (5)
  • The court expects the medical professional, in comparison to the “visitor” or social services, to have the most training and experience in medical capacity and less knowledge of policy issues of legal capacity and guardianship alternatives. (5)
  • Whenever an issue of competence or capacity arises and the clinician is uncertain how to proceed, a clinician may check with the hospital attorney, institutional counsel, or the legal division of the clinician’s malpractice carrier. 

Documentation Tips

  • Physicians treating a patient who is the subject of guardianship proceedings should use standard documentation. (13, p.13)
  • A patient’s attorney or the court may ask the treating clinician to fill out a simple form, giving their opinion as to the patient’s competence.  Documentation supporting the opinion should appear in the patient’s chart. Minimally the clinician should document the diagnosis, the specific functional impairment, the persistence of the impairment, the link between the decisional impairment and the specific mental diagnosis/lack of function. The documentation should also note available services, medications, social supports, and family caregivers. (6, pp 146-7)
  • In comparison, documentation for Geriatric Forensic report writing should follow a standard guideline. (6, pp. 178-85.) 
  • The mental status examinations for older adults might include additional factors of alertness, behavior, cognitive domains, mood state, safety variables, sensory input and perceptions, symptom experience, and thought content and process. (6, p. 28) 

REFERENCES

  1. Gutheil TG, Applebaum PS. Clinical handbook of psychiatry and the law. 1st ed. NY : McGraw-Hill. 1982. 
  2. Kelly AM, Hershey LB, Marsack-Topolewski CN. A 50-state review of guardianship laws : specific concerns for special needs planning. J Financial Serv Professionals. 2021 Jan ;75(1) :59-79.
  3. What is Guardianship? [Internet]. Bellefonte: National Guardianship Association c2022 [cited 2022 Apr 2] Available from: https://www.guardianship.org/what-is-guardianship. 3a. https://www.nationalcoreindicators.org/upload/core-indicators/NCI_GuardianshipBrief_April2019_Final.pdf
  1. Jeste DV, Eglit GML, Palmer BW, Martinis, JG, Blanck P, Saks ER. Supported decision making in serious mental illness. Psychiatry. 2018 :81(1):28–40. 
  2. Rosenthal, LK. Revisiting the visitor: Maine’s new Uniform Probate Code & the evolving role of the court-appointed visitor in adult guardianship reform. Maine Law Review 2022:74(1): 141-184.
  3. Reimers, Karen. The Clinician’s Guide to Geriatric Forensic Evaluations. Academic Press, 2019.
  4. Soliman, Sherif. “Evaluating older adults’ capacity and need for guardianship.” Current Psychiatry 11.4 (2012): 39-42.
  5. https://www.americanbar.org/content/dam/aba/administrative/law_aging/PRACTICALGuide.pdf
  6. Martinis, Jonathan, et al. “State Guardianship Laws and Supported Decision-Making in the United States After Ross and Ross v. Hatch: Analysis and Implications for Research, Policy, Education, and Advocacy.” Journal of Disability Policy Studies (2021): 10442073211028586.
  7. In re Estate of Hoellen, 854 N.E.2d 774 (Ill. App. Ct. 2006).
  8. Kelly, Annemarie M., Lewis B. Hershey, and Christina N. Marsack-Topolewski. “Implementing Guardianship Policies in Special Needs Planning: Five Potential Positives.” Journal of Financial Service Professionals 74.6 (2020). https://www.emich.edu/cob/documents/faculty-profiles/guardianship-five-potential-positives.pdf
  9. Olmstead v. L. C., 527 U.S. 581 (1999).
  10. Professional Risk Management Services, Risk Management Plan: Preparing for Private Practice 2016, Available from: https://www.prms.com/media/2221/private-practice_booklet_new.pdf. 

Additional Reading

  1. UNIFORM GUARDIANSHIP, CONSERVATORSHIP, AND OTHER PROTECTIVE ARRANGEMENTS ACT https://www.guardianship.org/wp-content/uploads/2018/09/UGCOPPAAct_UGPPAct.pdf
  2. Final Order in Ross and Ross v. Hatch,  http://www.supporteddecisionmaking.org/sites/default/files/ross_hatch_trial_court_decision.pdf

 

Buy Now