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GUARDIANSHIP/CONSERVATORSHIP – AN OVERVIEW
Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.
Alternatives to Guardianship
Alternatives to guardianship may include:
• Representatives or substitute payees.
• Case/care management.
• Health care surrogacy.
• Durable powers of attorney for property.
• Durable powers of attorney for health care.
• Living wills.
• Community advocacy systems.
• Joint checking accounts.
• Community agencies/services.
Rights that Might be Affected
A good guardian will take into account the wishes and desires of the ward when making decisions about residence, medical treatments, and end-of life decisions. The courts will remove only those rights that the proposed ward is incapable of handling.
When the courts appoint a guardian, the following rights of the ward may be removed.
These rights may include the right to:
• Determine residence.
• Consent to medical treatment.
• Make end-of-life decisions.
• Possess a driver’s license.
• Manage, buy, or sell property.
• Own or possess a firearm or weapon.
• Contract or file lawsuits.
Because establishing guardianship is a legal process that involves the removal of the individual’s rights, considerable due process protection often exists when the guardianship is established. They include:
• Notice to the individual of all proceedings.
• Representation of the individual by counsel.
• Attendance of the individual at all hearings/court proceedings.
• Ability of the individual to compel, confront and cross examine all witnesses.
• Allowance of the individual to present evidence.
• Appeal of the individual to the determination of the court.
• Presentation of a clear and convincing standard of proof.
• The right of the individual to a jury trial.
Individual rights removed and due process rights may vary from state to state, the final authority is the state statues where the person with the disability lives. In any type of guardianship the court may limit the guardian’s authority. The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible. The guardian’s authority is defined by the court and the guardian may not operate outside that authority. A guardian may be a family member or friend or a public or private entity appointed by the court.
Guardianship of the Person
When the court appoints a guardian of the person, the guardian may have the following responsibilities:
• Determine and monitor residence.
• Consent to and monitor medical treatment.
• Consent and monitor non-medical services such as education and counseling.
• Consent and release of confidential information.
• Make end-of-life decisions.
• Act as representative payee.
• Maximize independence in least restrictive manner.
• Report to the court about the guardianship status at least annually.
Guardianship of the Estate or Property
"Estate" is defined as real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.
When the court appoints a guardian of the estate, the guardian is assigned the following responsibilities:
• Marshall and protect assets.
• Obtain appraisals of property.
• Protect property and assets from loss.
• Receive income for the estate.
• Make appropriate disbursements.
• Obtain court approval prior to selling any asset.
• Report to the court or estate status.
The Professional Guardian’s Duties and Responsibilities
The professional guardian does not take the place of a family member, although the guardian may form an emotional bond with the incapacitated person. The professional guardian will coordinate and monitor professional services needed by the incapacitated person, such as selecting a caretaker, in-home care, and other services.
Funds that belong to the ward remain the property of that person, and do not become property of the guardian. All funds are accounted for and kept separate from the guardian’s personal funds. The estate guardian acts on behalf of the incapacitated person only to the extent of the person’s assets. For each person that a professional guardian serves, the guardian stands ready to give an accurate accounting of those funds to the court. The professional guardian is an advocate and acts on behalf of the incapacitated person only to the extent of the court order.
Guardianship is Not a Long-Term Arrangement
The goal of effective guardianship is to be able to restore the rights of the individual who, for whatever reason, has had some of them removed by a court after due process. It is true that in many instances once a guardianship has been initiated by a court, it is in place until the incapacitated person dies. However, an annual review and assessment will monitor the need for maintaining or terminating a guardianship, and alert the court to a potential restoration of some or all of the incapacitated person’s rights.
This brief summary does not attempt to cover all of the aspects of guardianship. Especially in your local area where the law and local court rules may vary from county to county, or from state to state, it is a good idea to make inquires as to what is appropriate for your specific circumstances. Consult your local professional elder law advocate, or contact the National Guardianship Association.
RIGHTS OF AN INDIVIDUAL UNDER GUARDIANSHIP
Guardianship is the legal process by which a court determines that a person is incapable of making decision about some or all areas of life. Because of certain medical conditions, a developmental disability, mental retardation, dementia, mental illness, or the inability to communicate, a person may not be able to take care of his or her own finances, make medical decisions, or understand the need for assistance with the activities of daily living.
After the court has heard medical testimony and other reliable evidence, it may declare a person to be "
incapacitated" and appoint a guardian to make decisions on the person’s behalf. This determination of incapacity and the appointment of a guardian may take specific rights from the person. Once under guardianship, the court might refer to this person as the "ward," the "incapacitated person" or the "protected person."
The court should specifically state which rights it is taking from the ward. The ward keeps all rights that the court has not specifically given to the guardian. State laws may also restrict the ward’s rights. The state Constitution, for example, may deny the ward the right to vote. The ward, however, has the right to the
least restrictive guardianship suitable to his or her needs and conditions. The guardian also has the affirmative duty to advise the ward of his or her rights and to attempt to maximize the ward’s self reliance and independence.
Rights of the Ward
In general, the ward keeps all legal and civil rights guaranteed to all residents under the states’ and the United States’ Constitution,
except those rights which the court grants to the guardian.
These rights include, but are not limited to:
1. The right to be treated with dignity and respect.
2. The right to privacy, which includes the right to privacy of the body, and the right to private, and uncensored communication with others by mail, telephone, or personal visits.
3. The right to exercise control over all aspects of life that the court has not delegated to the guardian.
4. The right to appropriate services suited to the ward’s needs and conditions, including mental health services.
5. The right to have the guardian consider the ward’s personal desires, preferences, and opinions.
6. The right to safe, sanitary, and humane living conditions within the least restrictive environment that meets the ward’s needs.
7. The right to procreate.
8. The right to marry.
9. The right to equal treatment under the law, regardless of race, religion, creed, sex, age, marital status, sexual orientation, or political affiliations.
10. The right to have explanations of any medical procedures or treatment. This includes information about the benefits, risks, and side effects of the treatment, and any alternative procedures or medications available.
11. The right to have personal information kept confidential. This may include withholding certain information the ward may not want his or her family to know. The guardian may have to provide personal information to apply for benefits, or in emergency situations where the ward or others may be in danger, or if the information is required by law to be shared with agencies or health departments. Personal information may also be contained in the reports the guardian makes to the court, and which may be available for others to see.
12. The right to review personal records, including medical, financial, and treatment records.
13. The right to speak privately with an attorney, ombudsman, or other advocate.
14. The right to petition the court to modify or terminate the guardianship. This includes the right to meet privately with an attorney or other advocate to assist with this legal procedure.
15. The right to bring a grievance against the guardian, request the court to review the guardian’s actions, request removal and replacement of the guardian, or request that the court restore rights if it can be shown that the ward has regained capacity to make some or all decisions. The guardian also has a responsibility to request that the ward’s rights be restored when there is evidence that the ward has regained capacity.
Removal and Replacement of a Guardian
A petition asking the court to review the guardianship can be filed in the clerk of court’s office by the ward, the ward’s attorney, the ward’s family, or any concerned party. This petition should simply state the reasons a review is being requested. It is strongly recommended that the petitioner seek legal assistance when considering whether to file such a petition. There may be quicker, more effective, and/or less costly remedies available, such as writing a letter to the guardian or asking an ombudsman or other advocate to intervene with the guardian.
The court may order a
hearing at which the party bringing the petition presents evidence. At the conclusion of the evidence, the court may order the guardian to consider or pursue a different course of action, be more responsive to the needs of the ward, file timely reports or accountings, or the court may remove and replace the guardian. Where it can be shown that the ward has regained the capacity to make decisions in some or all areas, the court may dismiss or modify the guardianship.
THE GUARDIAN AND INFORMED CONSENT
A fundamental responsibility of the guardian is to make decisions about the ward’s personal affairs. In doing so, the guardian should exercise the utmost care and diligence, always with the idea of protecting the autonomy, independence and rights of the ward. This is most important when making treatment and/or medical decisions on behalf of the ward. The "Doctrine of Informed Consent" is the means by which the individual’s autonomy, independence and rights are protected.
"Informed Consent" is a person’s voluntary agreement to allow something to happen that is based on full disclosure of facts needed to make the best decision in the given situation.
The guardian stands in the place of the ward and must be afforded the same information and freedom of choice as the ward would have received. Making an informed decision requires adequate information on the issue, and a lack of coercion so that the decision is voluntary. If any of these requirements are not met, an informed decision cannot be made.
Anytime a decision is to be made, the guardian should ensure that he or she has adequate information on both the risks and benefits of the proposed actions, as well as the possible alternatives available. An effective guardian gathers this information by asking the following questions:
• What is the proposed treatment or action?
• What procedures will be followed?
• Who will perform the treatment or action?
• What are the possible risks, side effects, or discomforts?
• What is the intended outcome?
• What steps will be taken to minimize the risks?
• What alternatives are available?
• What will happen if nothing is done?
• Why now and not later?
Additionally, while evaluating this information, the guardian should consider any preferences of the ward that can be ascertained either currently, or prior to the appointment of the guardian. It may be appropriate and helpful to seek input from family members. It may also be necessary to seek a second professional opinion.
The guardian should not make a decision until all of the guardian’s questions are answered in understandable terms.
Every individual is entitled to a second opinion and should be sought if there are outstanding questions or if the guardian is uncomfortable with the information they have received.
Voluntary and Without Coercion
The guardian giving the "Informed Consent’ should not be forced into the decision. It is incumbent upon the individual proposing the treatment or action to inform the guardian that he or she has the right to refuse consent and that once given, the guardian can withdraw his or her consent at anytime without risk of punitive action. The guardian should inquire about the ramifications to the individual, if consent is not granted. Additionally, guardians should understand that once consent is given for an ongoing treatment or program, guardians can
withdraw it at anytime in the future.
It is therefore imperative that guardians monitor and evaluate the treatment closely once it is implemented.
A guardian can also give "time-limited" consent by stating in writing the date it becomes invalid. This is often effective when trying new medications or behavioral treatment plans.
When asked to give consent for long-term treatment programs, it is advisable to grant consent for a time period no longer than one year. This will require that the individual providing the treatment program once again ask you for your consent at the end of the 12 months, allowing the guardian to re-ask his or her original questions and any new ones he or she may have.
Using "Informed Consent," the guardian must:
• Ask questions until he or she is satisfied that he or she has all the information needed to make an "informed" or "the best" decision.
• Seek a second opinion if necessary.
• Evaluate whether the decision is in keeping with the ward’s known wishes/desires.
• Evaluate whether the decision is in the ward’s "Best Interest."
• Be clear about what is being consented to.
• Specify in writing the time frame of the consent.
• Monitor the ward’s reaction to the treatment or action and withdraw consent if necessary.
THE GUARDIAN AS SURROGATE DECISION-MAKER
A fundamental responsibility of the guardian is to make decisions about the ward’s personal and financial affairs. The responsibility of making decisions for another individual on a daily basis both characterizes and sets apart the role of the guardian from that of any other service provider. As a surrogate decision maker, the guardian must exercise the utmost care and diligence, always with the idea of protecting the autonomy, independence, and rights of the ward. Two important principles, often embodied in guardianship legislation, act as guidelines in the decision-making process: "Substituted Judgment" and "Best Interest."
"Substituted Judgment" is the principle of decision making that requires implementation of the course of action which comports with the ward’s wishes expressed prior to the appointment of the guardian, provided the ward was capable of expressing his or her wishes relevant to the matter at issue and reliable evidence of these wishes remains. The ward’s current opinions and desires shall be considered and may be relevant to a determination of the ward’s views prior to the appointment of the guardian.
The principle of "Substituted Judgment" is considered to be the manner in which the autonomy, values, beliefs and preferences of the ward are best protected.
Utilizing this principle, the guardian attempts to learn as much as possible about the lifestyle, behaviors, preferences, and decisions made by the ward prior to his or her incapacity. Taking these factors into careful consideration, the guardian makes a decision that would as closely as possible reflect what the ward would have decided if he or she were capable of making the decision.
To do this properly, the guardian must become a detective – carefully unraveling the ward’s personal life history by consulting anyone, including the ward, his/her relatives, friends, caretakers, or clergy, who may be able to provide information on the ward’s preferences and past history of decision making.
In some instances, the guardian may not be able to determine what the ward would have done or chosen on a particular issue. There may be no history of decision making because the ward has never been competent, perhaps, due to severe developmental disabilities or because the ward might not be able to communicate his or her wishes and the guardian has been unsuccessful in locating anyone with information on the ward’s previous decisions. In these situations, the guardian must make decisions based on what is believed to be in the "Best Interest" of the ward.
This "Best Interest" principle of decision-making is not based upon the ward’s wishes, but on what a reasonable person would do after considering all the options and alternatives and their potential risks, side effects and dangers. When making a decision under the "Best Interest" principle, the guardian must consider whether the option chosen is the least intrusive and least restrictive, and offers the ward the best opportunity for a "normal" life. It may be necessary for the guardian to obtain formal evaluations of the ward and/or seek expert advice from medical and financial professionals or from special ethics committees.
It is NGA’s position that the "Best Interest" principle of decision-making should only be used when the guardian cannot utilize the principle of "Substituted Judgment."
Least Restrictive Alternative
The principle of the "Least Restrictive Alternative" means that the guardian will carefully evaluate the options that are available, and choose the one that most fully meets the needs of the ward while placing the least restriction on his/her freedom, rights, and ability to control his/her environment. The object is to look at the whole picture and with as much input from the ward as possible, weigh the advantages against the disadvantages, the risks versus the benefits, and develop a balance between maximizing the ward’s growth potential while maintaining the ward’s safety and security.
When making decisions on behalf of the ward, the guardian must:
• Determine the ward’s current wishes and desires, if ascertainable.
• Consider how the ward would have decided the questions by considering the ward’s religious, moral, and ethical beliefs as well as previous decisions.
• Diligently seek the opinion of people close to the ward.
• Consider the opinion of the court, the ward’s attorney and/or guardian ad litem if available.
ASSISTING THE GUARDIAN IN SELECTING A NURSING FACILITY
Finding a suitable nursing home is often a difficult and time-consuming process for the guardian. Since options are now available in the range of long-term care services, consider alternatives that are less restrictive than nursing facility care. If the client/ward is able to provide most of his/her own care, but minimal disability requires some assistance, care at home with additional services may be the best option. If more assistance is required than what can be efficiently and effectively provided at home, the move to an assisted living facility may be indicated. Contact the public health department, local Area Agency on Aging, mental health department or a professional care manager for a pre-admission assessment of the client’s needs and abilities regarding a supportive living arrangement.
Selecting A Nursing Facility
A nursing facility should be selected based upon the ward’s/client’s needs; for example, transportation, social activities or on-site dialysis may or may not be provided. Usually several options are available; check the opportunities for socialization, nursing care, shared meals and housekeeping services. In some communities the entire rage of services (CCRC = continuing care retirement communities) are within the same facility and as more services are needed, residents are moved to the next level of care.
Prior to selecting a nursing home facility it is essential that the guardian visit the facility at lease once. Make an appointment or drop in to see the facility. Spend at least an hour for the visit. It is a good idea to have the visit coincide with the meal service at noon. During the visit, talk to staff, administrators and other residents if possible. Ask questions about policies of the facility such as visitation, discharge, transportation, and resident council. Ask questions about the programs in the home such as activities, worship services, volunteers or outings. It is important to observe all aspects of the facility’s life and to observe the staff. Note the number of staff and how they treat the residents. Observe the residents involvement in activities – do they appear to be happy, alert and well tended to? Observe meal service if possible – is the food attractive and are the portions adequate? Check the living quarters for cleanliness, adequate storage, proper privacy, appropriate furnishings, and evidence of personalization with pictures, furniture, bed clothing and such. Furthermore, observe the general cleanliness and safety of the facility, checking for odors, safety features and marked fire exits. Look at the facility’s license and request to look at the last survey conducted. It is helpful to make a second visit when most of the administration out of the building, such as in the evening or early morning. Compare observations between the two visits.
After the ward has moved into the facility, make unannounced visits at different times of the day and week to obtain different views of the care on different shifts, visiting with other residents and staff.
States vary greatly in the availability and charges for services. Selections may be limited if:
• The individual’s physician does not practice in the chosen facility.
• The facility does not provide the level of care needed or have an available bed.
• Some health plans refer to selected facilities.
Selection of Long-Term Care Services:
• Contact your local Area Agency on Aging or the National Citizen’s Coalition for Nursing Home Reform in Washington, DC (202) 332-2275 to obtain contact information for the local ombudsmen. Each state will give you information on available services.
• Contact state health department for results of most recent inspections. These will reveal deficiencies that may need to be corrected or that may be chronic problems.
• Schedule an extensive tour of the facility and make observations of odors, cleanliness or residents, time required to answer call lights, attitudes of staff toward residents, and other meal service.
Guidelines for Matching the Ward/Client to the Service:
During the selection process, the guardian should consider and review the following to ensure that the ward is being placed in the appropriate facility:
• Secure an accurate assessment of the ward’s physical, cognitive, social abilities and needs (Activities of Daily Living).
• Review financial status/resources of the ward (insurance, etc.) and investigate eligibility for public benefits..
• Consider the ward’s preferences/best interests, such as ethnic and religious values.
• Inquire as to whether short term rehabilitation is required. Sub-Acute units with active physical, occupational and speech therapy will be essential.
• Ask if cognitive impairment require round-the-clock care giving (Adult Day Care and/or special
Alzheimer’s units may be indicated). • Attempt to find a facility in a location that will make it easy for friends and family to visit.
Making the Transition Easier
• If possible, bring bits of the old home to the new home – pictures, an afghan or blanket or a favorite book or nick-knack. Caution should be exercised in leaving something valuable at a nursing home. • Give the ward as many choices as possible. He or she may or may not be able to choose not to go into the facility, but can be given the choice of which facility or which room in the facility or which bed in the room (by the window or by the door) or what color the bed covering should be. • Some facilities offer respite care. The ward can stay just during the day while the care giver is on vacation. This gives the ward the opportunity to make friends at the facility and find out some of the positive aspects of life in a nursing facility. • Take with the staff about maintaining old routines. If the ward likes to drink hot chocolate before bed each night, find a way that he or she can continue to have the hot chocolate each night at bed time.
• Elder Care Locator, (800) 677-1116.
• National Association of Professional Geriatric Care Managers, (520) 881-8008.
• National Association of Area Agencies on Aging, (202) 296-8130.
• National Long-Term Care Ombudsman Resource Center, (202) 332-2275.
• American Association of Homes and Services for the Aging, (202) 783-2242.
All of the foregoing information is from guardianship.org. We stringly recommend this website as a resource.