Assessing the Need for Guardianship
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.
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.
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
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
If You Suspect Incapacity
— 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.