July/August 2009

Assessing the Need for Guardianship
By Donald Vanarelli, Esq
Aging Well
Vol. 2 No. 3 P. 32

Professionals whose practices are devoted to the aging population are often confronted with older adults who appear to be struggling to manage their financial or medical affairs. Questions may arise regarding an individual’s competency based on advanced age, physical infirmities, and/or cognitive deficits. Understanding the issue of capacity and the options available to these vulnerable elders and their loved ones may be critical for the successful management of your field of practice.

Questions of capacity necessarily involve the competing issues of an individual’s personal freedom and right of autonomy on the one hand and the protection of vulnerable individuals on the other.

When making a capacity assessment, professionals must be mindful of the gravity of a judicial declaration of legal incapacity. According to the congressional document “Abuses in Guardianship of the Elderly and Infirm: A National Disgrace,” “Despite the seemingly benevolent nature of the guardianship system, the consequences of guardianship are very harsh. When a court appoints a guardian, the ward loses all rights to determine anything about [his or her] life. ... By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die...”

However, those of us engaged in fields of practice involving older adults feel an obligation to protect those in need of assistance. And when an elder’s ability to make rational decisions is sufficiently impaired, particularly in situations in which the elder has not made effective alternate voluntary arrangements, such as through a durable power of attorney, the appointment of a healthcare surrogate, etc., legal intervention may be necessary.         

Guardianship Background
Adults are presumed to be legally competent unless they are declared by a court to be incompetent (incapacitated) or incapable of caring for themselves.

A guardianship, which some states refer to as conservatorship or a similar term, is a formal legal action for substitute decision making. It confers on a designated individual (the guardian) the right to make decisions on behalf of another (the ward). A guardianship action is an involuntary proceeding and may be established over the opposition of the incapacitated person.

There is no federal law governing guardianship; state law applies to guardianship actions. The substance of these laws, including the legal standards for determining incapacity, varies considerably among states.

Guardianship Appointments
In the event that a judicial determination of incapacity is made, the court may appoint a “guardian of the person” to make personal choices such as living arrangements and health decisions, a “guardian of the property” to manage the incapacitated elder’s estate and finances, or a “plenary guardian” with power over both the person and the estate. The court may also order a limited guardianship.

Courts are increasingly recognizing the concept of limited guardianship, in which the subject of the guardianship action is found to be an incapacitated individual and a guardian is appointed. But the guardian’s powers are limited to those areas in which the incapacitated person does not retain decision-making capacity.

In practice, however, the use of limited guardianship is generally more prevalent in cases involving the developmentally disabled, as opposed to older adult clients suffering from dementia or Alzheimer’s disease.

Determining Incapacity: Legal Requirements
The legal standard for determining capacity varies, depending on the transaction in issue. For example, testamentary capacity (the capacity to make a valid will) is said to exist if, at the time the will is made, the testator is able to comprehend, in general terms, the property comprising his or her estate, the natural objects of his or her bounty, the disposition he or she is making by executing the will, and how each of these factors relates to the others.

Contractual capacity (the capacity to enter into a contract) is said to exist if the person reasonably appreciates the effect and consequences of the transaction and is capable of exercising free will with respect to the contract. Donative capacity, or the capacity to make a gift, exists if the donor is able to understand the “nature and effect of his or her act.”          

In contrast, as set forth above, a guardianship action is predicated on a finding by a court that the individual in question is incapacitated. The legal standard for determining incapacity is based on the statutory and common law of a particular state, and there is no universal legal definition of incapacity. However, the general standard is that a guardianship is appropriate in cases in which a person, because of mental or physical illness or disability, lacks sufficient capacity or understanding to make decisions regarding his or her affairs or to communicate those decisions to others.

A Practical Guide to Determining Incapacity
The aforementioned general legal definition notwithstanding, the inquiry into whether a client is incapacitated is often a troubling and difficult issue. The following assessment tools may provide guidance and serve to inform the decision as to whether further action is necessary:

Functional Assessment
A functional assessment involves the examination of an individual’s behavior in order to assess his or her contextual capacity. Functional assessments recognize that an individual may be incapacitated for some purposes but not for others.

Cognitive Assessment
A cognitive assessment, a traditional mental health assessment, helps shed light on an individual’s orientation to time, place, person, and intellectual functioning, such as the Mini Mental State Examination and the Mental Status Questionnaire.

If You Suspect Incapacity
In the event that you suspect an aging client is incapacitated and a guardianship may be appropriate, you can report your concerns to a variety of sources, including the elder’s family, close friends, healthcare provider, or attorney. If the individual is institutionalized, you can report your concerns to the facility administrator. If the individual is not institutionalized and the individual’s family, friends, or physician are unable or unwilling to take notice of your concerns (or if you know of no family members, friends, or treating physicians of the individual), you may also contact local adult protective services agencies in your area.

— Donald Vanarelli, Esq, is a certified elder law attorney, an accredited professional mediator, and a founding member of the Elder Mediation Center of New Jersey.