Guardianship

Ordinarily the person who will be most directly affected by any particular decision about health care, finances, social services, residential issues, or other personal matters is the person who gets to make that decision. There may be times, however, when that individual is not capable of making and expressing difficult personal choices. In those instances, the legal system may need to intervene on behalf of the incapacitated individual. This may be accomplished through a variety of legal devices that vary in terms of their invasiveness into personal autonomy. One of these legal devices is guardianship.

Incapacity to make and express valid decisions is a problem that affects older persons in disproportionate terms. The extent of mental disorders in old age, representing decrements in both intellectual and emotional functioning, is considerable. For some older persons, mental dysfunction may be a carryover from earlier life. For most of the elderly, though, mental health problems develop later in life as a result of organic brain disorders (primary degenerative disorders or multi-infarct dementia), paranoid disorders, drug reactions, excessive use of alcohol, or as the by-product of various physical illnesses. These problems may take the form of cognitive impairment (dementia) in memory, attention, or information processing; emotional lability (psychosis) often manifested as aggression; or pseudodementia (depression). Because of this prevalence of impairment, guardianship is a legal device that disproportionately affects older persons, especially those residing in institutions.

Court-appointed surrogates

Every state has enacted statutes that empower the courts to appoint a surrogate with the authority to make decisions on behalf of a mentally incompetent ward. The terminology for the court-appointed surrogate decision-maker varies among jurisdictions; "guardian" is the most commonly used term, although "conservator" and other terms are employed in some places.

Guardianship statutes are an example of the state's inherent parens patriae power to protect those who cannot take care of themselves in a manner that society believes is appropriate. The origins of some form of guardianship based on the state's benevolence toward the dependent stretch back beyond thirteenth-century England.

The terms "capable" or "having capacity" usually are used to describe individuals who, in a health care clinician's professional judgment, have sufficient capacity to make their own choices. The terms "incompetent" or "incompetence" refer to a court's formal ruling on the decision-making status of an individual in the context of an official guardianship proceeding, although some modern guardianship statutes use the term "capable" to refer to a judicial judgment.

Every adult person is presumed to be legally competent to make personal decisions in life. This presumption may be overcome, and a surrogate decision-maker may be appointed, only on a sufficient showing that the individual is mentally unable to participate authentically (i.e., consistent with previously held values) and self-sufficiently in a rational decision-making process.

State guardianship statutes contain a two-step definition of competence. First, the individual must fall within a particular category such as old age, mentally ill, or developmentally disabled. Second, the individual must be found to be impaired functionally—that is, actually unable to care appropriately for person or property—as a result of being within that category. The requirement of functional impairment is emphasized in those states, such as California, whose statutes restrict eligibility for guardianship to those who are "gravely disabled" or the equivalent.

In disputed, adversarial guardianship proceedings, medical and psychological experts usually are called on to testify by each side about the proposed ward's categorical problem and its impact on the proposed ward's functional abilities. In practice, this medical and psychological testimony frequently becomes the primary, if not the sole, basis for adjudicating incompetence.

A court appoints a guardian (referred to in a few jurisdictions as a conservator or committee) as substitute decision-maker for an incompetent person. The incompetent person for whom a guardian is appointed is a "ward," and the relationship created between the guardian/ conservator and ward is called "guardianship" or "conservatorship."

Procedural protections

There has been a strong movement since the late 1980s toward greatly strengthening the procedural protections available to prospective wards. In response to widespread public advocacy of greater autonomy and dignity for older persons and sharp criticism of the guardianship system as overly intrusive and paternalistic, most U.S. jurisdictions have adopted extensive revisions to their guardianship statutes. These statutory reforms create or enhance requirements concerning court-appointed legal counsel with adversarial duties, notice to the proposed ward, a hearing, personal attendance of the proposed ward at the hearing, clearly defined standard of proof (varying among states from a preponderance of the evidence test to a higher standard of clear and convincing evidence to the strictest test of beyond a reasonable doubt), explicitly delineated contents of the guardianship petition, and more specificity in the court order finding the ward incompetent and appointing the guardian. In a majority of states, statutes allow for the relaxation of normal procedural requirements to permit the appointment of a temporary or emergency guardian when there is an immediate life-threatening situation or when a permanent guardian can no longer serve.

The guardian who is appointed ordinarily is a private person (relative, friend, or attorney) or institution (bank or trust company); the majority of guardians are relatives of the ward. Many state statutes establish procedures through which competent adults are empowered to nominate in advance the person they wish to serve as guardian for them in the event that guardianship is ordered at some future time, and the courts are required to give strong deference to these preferences.

In a growing number of cases, older individuals are left without any friends or family members who are willing and able to act as a surrogate decision-maker. In response to this significant social phenomenon, some states have devised "public guardianship" systems under which a government agency, acting either directly or through contract with a private not-for-profit or for-profit organization, functions in the guardian role for a ward who has no one else. Elsewhere, some private corporations and organizations offer their services as guardians directly to the courts, either for a fee or on a voluntary, pro bono basis.

Guardian's powers

A court may confer different types of powers on a guardian. Plenary power is complete authority over the ward's person and estate, encompassing virtually every element of the ward's life, including health care and residential choices. Alternatively, guardianship powers may be restricted to control of the ward's estate. In the latter event, the guardian of the estate may make decisions only about the handling of the ward's financial assets—real and personal property—and income. A court may also appoint a guardian ad litem who has authority to represent the ward just in a particular legal proceeding, such as a petition for authority to terminate life-sustaining medical intervention.

Courts and legislatures traditionally have treated mental competence as an all-or-nothing concept, even though an older person's functional capacity may wax and wane from time to time and vary widely depending on the kind of choice facing the individual and various environmental factors. In recognition of this reality, all states now allow courts to grant "limited" or "partial" guardianship explicitly delineating the particular, limited types of decisions that the ward is incapable of making and over which the guardian may exercise surrogate authority, with all remaining power residing with the ward. This approach is driven by the constitutional principle that, when the state absolutely must intervene in the life of a person without that person's voluntary permission, the state should engage in the least restrictive or intrusive alternative possible, consistent with accomplishing the state's legitimate goals. Limited or partial guardianship statutes may be permissive, allowing but not requiring courts to carefully tailor the guardian's powers to the ward's needs, or they may mandate that the guardian's powers be drawn as narrowly as possible by the appointing judge.

Any ward, but especially one for whom a plenary guardian has been appointed, inevitably suffers a serious deprivation of decision-making authority. Among numerous kinds of choices taken away, a ward may lose the right to enter into a binding contract, to vote, to hold public office, to marry or divorce, to hold a license (such as a motor vehicle driver's license), to execute a will, to own and sell or give away real and personal property, and to sue and be sued in the courts.

Once a guardianship has been imposed, the appointed guardian is expected to act in a fiduciary, or trust, manner. This responsibility may be fulfilled by performing in a way that is either (1) in accordance with the guardian's judgment of the ward's best interests or (2) consistent with previously expressed or implied values and preferences of the ward. The latter approach is called substituted judgment, which is now preferred by most legislatures and courts as most respectful of the ward's own life experiences and deeply held principles. The court retains continuing jurisdiction or power to oversee the guardian's conduct.

Any guardianship may be discontinued when it is no longer needed, and in some states appropriateness must be reviewed at least annually. The successful termination of a guardianship is difficult, because the party arguing for termination bears the burden of proving that competence has been restored.