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Adult Guardianship: (1) Fundamentals (2) Reform: Where Do We Stand

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Adult Guardianship: (1) Fundamentals (2) Reform: Where Do We Stand Erica Wood Commission on Law and Aging American Bar Association For National Health Law and Policy ... – PowerPoint PPT presentation

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Title: Adult Guardianship: (1) Fundamentals (2) Reform: Where Do We Stand


1
Adult Guardianship(1) Fundamentals(2) Reform
Where Do We Stand
  • Erica Wood
  • Commission on Law and Aging
  • American Bar Association
  • For National Health Law and Policy Resource
    Center
  • University of Iowa College of Law
  • February 16, 2012


2
  • Fundamentals of Guardianship

3
(No Transcript)
4
What IS Adult Guardianship?
  • Relationship
  • Created by state law
  • In which court gives
  • One person or entity (guardian)
  • Duty and power
  • To make personal and/or property decisions
  • For another (incapacitated person)
  • Upon finding that adult lacks capacity to make
    decisions self.

5
Guardianship Terminology
  • Guardian
  • Guardian of person
  • Guardian of property
  • Conservator
  • Plenary guardian
  • Limited guardian
  • Emergency guardian
  • Incapacitated person
  • Incompetent
  • Ward
  • Termination restoration

6
Refresher on Capacity
  • Not global decision-specific time-limited
  • Never put period after capacity
  • Fluctuating like lava lamp
  • cant pin down
  • Influenced by external factors
  • More like a dimmer control than on-off switch

7
Incapacity Societys Trigger
  • Statutory Definitions
  • Medical condition
  • Functional status
  • Cognitive element
  • Harm necessity
  • Iowa Definition
  • decision-making capacity which is so impaired
    that the person is unable to care for the
    persons personal safety or to attend to or
    provide for necessities for the person such as
    food, shelter, clothing, or medical care, without
    which physical injury or illness may occur Iowa
    Code 633.3

8

Incapacity What is it Not?
  • Incapacity ?
  • Cognitive impairment alone
  • Medical diagnosis alone
  • Advanced age
  • Eccentricity
  • Refusal of care Disagreement in high risk
    situations

9
Who Is Under Guardianship?
  • Elders with dementia, chronic cognitive
    impairments
  • Adults with
  • intellectual disabilities
  • mental illness
  • head injuries
  • substance abuse
  • dual or multiple conditions
  • Changing demographics
  • Lack of data

10
But Who Are They?
  • High profile wealthy Brooke Astor, Joan Kennedy
  • People with pensions, assets Transfer of assets
    to Boomers retirees
  • Individuals with federal/state benefits
  • Unbefriended individuals with no money and no
    one at all

11
Who Are the Guardians?
  • Family members friends
  • Professional guardians stranger guardians
  • Private non-profit and for-profit agencies
  • Lawyers
  • Banks
  • Public guardian last resort
  • Volunteers
  • Dedicated? Caring? Conflicted? Abusive? Yes no
    data on practice

12
Roots of Guardianship
  • Ancient Greece and Rome
  • 14th Century England parens patriae
  • Paternalistic model in Colonial times
  • Enacted into state law
  • 51 guardianship systems

13
Guardianship Proceedings
  • Any person file petition (IA Code 633.552)
  • Notice (633.554), possible appointment of counsel
    (633.561, shall appoint), sometimes court
    visitors, investigators, guardians ad litem
  • Hearing
  • Judicial order
  • Appointment of guardian
  • Bond
  • Annual reports (633.670)and accountings (633.670)

14
Why is Guardianship Last Resort?
  • Parens patriae Paternalistic, protective
  • Removes basic rights
  • Constant inherent tension
  • Protection v autonomy
  • Rights v needs
  • Double-edged sword
  • Societys most extreme intervention

15
Families decide
Courts decide
Individual
Others designated by individual
16
Guardianship Part ogre and part Santa Claus
17
Why Else Avoid Guardianship
  • Expense use up estate
  • Cumbersome time consuming
  • Stigmatizing
  • Intimidating confusing
  • Families in court maze
  • Benefit of third parties over individual
  • Blunt tool

18
Least Restrictive Alternative
  • Constitutional principle Shelton v. Tucker, 364
    U.S. 479 (1960)
  • Application in mental health context Lake v.
    Cameron, 364 F.2d 657 (D.C. Cir. 1966)
  • Application to guardianship example is In Re
    Mollie Orshansky, 804 A.2d 1077 (D.C. App.2002)

19
Hedin v. Gonzales528 N.W.2d 567 (1995)Supreme
Court of Iowa
  • Facts
  • Curtis younger individual with intellectual
    disability
  • Sister guardian rep payee
  • Curtis wanted to marry and live more
    independently but guardian opposed
  • Curtis filed petition to remove guardian and
    terminate guardianship
  • Curtis raised constitutional issues alleged
    violation of liberty interest under 14th Amendment

20
Hedin v Gonzales Court Holdings
  • Guardianship involves loss of liberty person
    entitled to procedural due process rights.
  • Criteria unable to make or carry out important
    decisions concerning the . . . wards person or
    affairs vague and overbroad
  • Too subjective
  • Focuses on content of decision rather than
    capacity of person
  • No requirement of harm
  • Court must consider whether limited guardianship
    appropriate.
  • Standard of proof clear and convincing evidence

21
Surrogate Decision-Making Standards
  • Two standards for surrogate decision-making
  • Best interests surrogate makes decisions to
    best protect health, safety, welfare
  • Substituted judgment surrogate uses values of
    individual, determines what person would have
    wanted
  • Requires evidence of values, preferences
  • Values history

22
Substituted Judgment Stepping into Shoes of
Another
23
Guardianship ReformWhere Do We Stand?
  • Gap Between Law Practice
  • Least Restrictive Alternative Limited Orders
  • Capacity Assessment Procedural Due Process
  • Court Oversight Guardian Accountability
  • Public Guardianship
  • Iowa Perspectives Panel

24
  • Guardianship Law vs. Practice

25
1987 Associated Press ReportGuardians of the
Elderly An Ailing System
26
Rush to State Statutory Practice Reform
  • Since 1988, revisions in almost all states
  • About 2/3 of states enacted new or substantially
    revised code
  • State skirmishes, task forces,
  • debates

27
Gap Between Law and Practice Bends in Long
Winding Road to Reform
"In the Hands of a Troubled System 2004
Guardians for Profit 2005
Courts Strip Elders of the Independence 2008
Under Court, Vulnerable Became Victims 2003
Latest Custody Battle Who Gets Mom 2006
28
Lack of DataThrough a Glass Darkly
  • Adults under guardianship in U.S. unknown
  • Adults under guardianship in states unknown in
    most states
  • and numbers frequently unknown
  • -Elders
  • -Individuals with mental illness
  • -Triggering issue
  • -Family, public, nonprofit or for-profit
    guardians
  • -Plenary v limited orders
  • -Reports timely filed

29
  • Least Restrictive Alternative Limited Orders

30
Less Restrictive Options
  • Financial Alternatives
  • Financial power of attorney
  • Representative payee
  • Joint accounts
  • Trust
  • Money management
  • Health Care/Personal Care Alternatives
  • Health care power of attorney
  • Health care living will instructional directive
  • Advance directive
  • Health care default surrogate law
  • May not need guardian unless
  • Decision outside scope of document
  • Possible abuse by agent

31
Concept of Limited Order
  • Limited v plenary order
  • Guardian assigned only those duties powers
    person is incapable of exercising
  • Highlighted in Uniform Guardianship and
    Protective Proceedings Act
  • National Probate Court Standards directs judge
    to detail powers duties rights retained
  • Language included in virtually every state
    statute See chart on ABA Commission Web site.

32
Guardian Powers Duties Two Types of Statutes
  • Type One Guardianship removes all rights except
    those
  • Set out in statute. Some states list retained
    rights (FL)
  • Set out in court order
  • Type Two Guardianship removes and transfers
    ONLY those powers specifically set out in order.
    (All orders limited orders.)

33
Rationales for Limited Orders
  • Maximize autonomy
  • Support principle of least restrictive
    alternative
  • Support mental health in preserving choice
    control
  • Encourage guardian to consult/communicate more
    with individual
  • Disability community means to normalize life

34
Examples of Limited Orders
  • Mr. X retains the right to have and spend 20 of
    cash per week.
  • Ms. X retains the rights to manage and use her
    checkbook (with monthly limit).
  • Mr. X retains the right to make donations to
    organizations of his choosing (with limit).
  • Ms. Y retains the right to choose a health or
    long-term care facility.
  • Ms. Z retains the right to mange her medications
    (with assistance).
  • Ms. A retains the right to smoke at a time and
    place of her determination, within the law.
  • Ms. Z retains the right to travel.
  • Mr. M retains the right to vote.

35
Crafting Limited Orders
  • Judges are not like baseball umpires,
    calling strikes and balls or merely labeling
    someone competent or incompetent. Rather,
    the better analogy is that of a craftsman who
    carves staffs from tree branches. Although the
    end result a wood staff is similar, the
    process of creation is distinct to each staff.
    Just as the good wood-carver knows that within
    each tree branch there is a unique staff that can
    be released by the acts of the carver, so too a
    good judge understands that, within the facts
    surrounding each guardianship petition, there is
    an outcome that will best serve the needs of the
    incapacitated person, if only the judge and the
    litigants can find it. Larry Frolik, Stetson L.
    Rev. Spring 2002

36
Barriers to Limited Orders
  • Require fine-tuned capacity assessment
  • Older people with dementia declining
  • Expensive to return to court
  • Compromise judicial economy
  • Hard for third parties
  • Attorneys frequently dont request

37
Use of Guardianship Plan
  • Forward looking document blueprint for guardian
    actions
  • Required by National Probate Court Standards
    UGPPA
  • Approx 10 states require plan
  • With petition
  • Following appointment
  • With annual report
  • Plan can include goals of shared decision-making
    person-centered planning
  • Barriers
  • Court approval
  • Court review
  • Changing circumstances

38
Ways to Promote Participation Not About Me
Without Me
  • Frequency of visits
  • State provisions
  • NGA Standards require monthly
  • NGA Standards
  • Guardian shall encourage the ward to
    participate, to the maximum extent of the wards
    abilities, in all decisions that affect him or
    her. . .
  • Communication tips
  • Use short, simple words sentences
  • Give one step directions
  • Repeat or paraphrase
  • Give visual clues
  • Need for guardian training

39
  • Capacity Determination
  • Procedural Due Process

40
No Capaci-meter to Measure
41
Guardianship Capacity Assessment Handbook for
Judges
42
Six Pillars of Capacity Assessment
43
MCFVRE
  • M Medical condition
  • C Cognitive capacity
  • F Functional capacity
  • V Values
  • R Risks
  • E Means to Enhance capacity

44
Medical Condition
Everyday Functioning
Cognition
Values Preferences
Risk Supervision Needed
Means to Enhance Capacity
45
The Ds of Medical Condition
  • Diagnosis
  • Drugs
  • Dehydration
  • Diet
  • Depression
  • Disorientation
  • Delirium
  • Dementia
  • Dig

46
More Than Just Short Term Memory Loss!
47
Functional Element
  • How does person function in life society
  • What is ability to
  • -Care for self?
  • -Make medical decisions?
  • -Make residential decisions?
  • -Function at home and in community?
  • -Take civil and legal actions?

48
Values Preferences
  • Frequently missing piece
  • May be informed by age, cohort, culture, life
    experience, family background
  • What makes life meaningful
  • Important TO vs important FOR
  • Consistency over time
  • Values questionnaire forms

49
Means to Enhance Capacity
  • Will anything improve the condition?
  • Will anything improve the functioning?
  • Question is not have capacity but Does the
    person have capacity with support?
  • Communication techniques
  • ADA accommodations
  • Accommodations/adaptations beyond ADA
  • Medical treatments
  • Community services

50
Risk of Harm Level of Supervision Needed
  • What are risks?
  • How likely?
  • How severe? Consequences reversible?
  • What factors increase or decrease risks?
  • What protections needed?
  • Inherent tension in guardianship risk tips
    scales risks vs values
  • Choosing to run risks vs
  • happening to run them

51
Who Will Do Assessment?
  • Ideally professional with capacity evaluation
    experience
  • Otherwise
  • Check with aging network
  • University medical centers
  • Medical internists with geriatric clientele
  • Local social worker or mental health
    professional, gain experience

52
Procedural Due Process
  • Notice
  • Timing
  • Form
  • Who served
  • Presence
  • Unless harm
  • ADA
  • Counsel
  • Right to vs. appointment of
  • Vigorous advocacy vs. guardian ad litem/best
    interest

53
  • Guardian Accountability

54
(No Transcript)
55
Promising Practicesfor Guardianship Monitoring
  • Reports, accounts plans
  • Court actions to facilitate reporting
  • Practices to protect assets
  • Court review of reports accounts

56
More Promising Practicesfor Guardianship
Monitoring
  • Investigation, verification sanctions
  • Database, technology
  • Links with community groups
  • Guardian training assistance especially
    family guardians

57
Volunteer Guardianship Monitoring
  • A win-win
  • Volunteer visitors as eyes ears of court
  • Time-tested AARP since 1990s
  • NEW! Three-part ABA Commission Handbook for
    Courts at http//ambar.org/VolunteerGrdMonitor

58
Tarrant County Volunteer Monitor
59
Background Checks
  • Existing requirement in 14 states
  • Felony conviction or criminal record is bar in
    12 states
  • GAO report raised concern
  • S. 1744, Sen. Klobuchar (MN) Guardian
    Accountability and Senior Protection Act

60
Issues Regarding Criminal Background
  • How much court discretion?
  • Absolute bar or consideration
  • What crimes?
  • How far back?
  • Who to check?
  • What to check?
  • How to check?

61
Standards for Accountability
  • Statutory guidance insufficient
  • Need for widely recognized standards
  • National Guardianship Association Standards of
    Practice
  • 2011 Third National Guardianship Summit
  • Standards same for all guardians?
  • Standards mandatory or aspirational best practice?

62
Highlights of Recommended Standards
  • Person-centered planning
  • Conservator management
  • Fees
  • Bonding
  • Health care decision-making steps
  • Priority on community based care/ preferences
  • Maintenance of meaningful relationships except
    substantial harm.

63
Certifying Accountability
  • Should guardians be certified?
  • By what process? State? National?
  • Which guardians certified?
  • Complaint and disciplinary procedure?
  • Center for Guardianship Certification
  • Existing state certification programs

64
US Certification
65
  • Public Guardianship

66
Public Guardianship Definition
  • Public Guardianship The appointment and
    responsibility of a public official or publicly
    funded organization to serve as legal guardian in
    the absence of willing and responsible family
    members or friends to serve as, or in the absence
    of resources to employ, a private guardian.
  • (Schmidt, Miller, Bell New, 1981)

67
Public Guardianship Models
  • 2004-2008 National Public Guardianship Study
  • 28 Explicit and 18 implicit public
    guardianship statutory provisions
  • Four basic models
  • Court Model
  • Independent State Office
  • Within Social Service Agency majority of states
    (conflict of interest model)
  • County Model

68
Selected Findings from National Public
Guardianship Study
  • Under broad definition, all states but one have
    something but largely insufficient.
  • Clear majority of states use social services
    model.
  • Significant, unquantified unmet needs.
  • Compelling underfunding and understaffing.
  • Patchwork of funding sources.

69
State WINGS
  • Working Interdisciplinary Networks of
    Guardianship Stakeholders (WINGS)
  • Steering committee high-level court backing
  • Assess strength, weaknesses, priorities
  • Sustainability remain as consistent forum for
    collaboration problem-solving
  • Legislation is the beginning, not the end
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