August 15, 2011

Ordinarily the person who will be most directly affected by any specific decision about health care, finances, residential issues, or other personal matters is the person who gets to make that choice. There may be times, however, when the individual is not intellectually and emotionally capable of making and announcing difficult personal decisions. In those cases, 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 intrusion into personal autonomy. One of these legal devices is guardianship/conservatorship.

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; although “conservator” and other terms are used in some states (e.g., California), “guardian” is the more commonly employed term.

Guardianship/conservatorship 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 thinks is appropriate. The origins of some form of guardianship based on the state’s benevolence toward the dependent can be traced back beyond 13th-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 is presumed to be legally competent to make personal decisions in life. This presumption may be rebutted, and a surrogate decision-maker may be appointed, only on a showing by clear and convincing evidence that the individual is cognitively and/or emotionally 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 person must fall within a particular category such as old age, mentally ill, or developmentally disabled. Next, the individual must be found to be impaired functionally—in other words, actually unable to care appropriately for person or property—as a result of being within that first 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 disable” or the equivalent.

In disputed, adversarial guardianship proceedings, medical and psychological experts are usually 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 exclusive, basis for adjudicating incompetence.

A court appoints a guardian or conservator 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.”

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. Some states have developed “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.

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

SEE ALSO: Advance directives, Informed consent, Probate


Category: C