Posted: Thursday, November 11, 2004
COLORADO SPRINGS, CO (November 11, 2004) - Leading advocacy groups for seniors are meeting this week to continue the process of addressing guardianship reform and implementation. Hundreds of thousands of Americans are under the care of a guardianship system in desperate need of repair, according to a report from Washington?s General Accountability Office (GAO). The National Academy of Elder Law Attorneys (NAELA), along with other national groups, will address the surprising nationwide deficiencies in the guardianship system across the United States.
NAELA, The National College of Probate Judges (NCPJ) and the National Guardianship Association (NGA) are convening a Joint Conference with a Wingspan Guardianship Implementation Session at The Broadmoor in Colorado Springs. The three groups will to discuss guardianship issues during the Conference that brings together guardians, elder law attorneys, case managers, social workers, healthcare professionals and state judges from around the country.
We would all like to think that we will be protected by ethical professionals or loving family members if we are ever faced with the need for guardianship as we age, said NAELA elder law attorney A. Frank Johns, who testified at the GAO hearing and is Joint Conference chair. The truth is that in many states across the country little is being done to ensure the necessary funding, training, accountability and monitoring of guardians that could prevent the horrific abuse that continues to occur against our older Americans. This Conference and Session is another step towards a remedy.
The organizations note that, while most guardians do a difficult job very well, standards between federal and state authorities should be set to ensure the quality of all legal guardian care from coast to coast. Guardianship is a legal process utilized when a person can no longer make decisions in his or her own self interest.
United States Senator (ID) Larry Craig, Chairman of the Senate Special Committee on Aging, asked Johns to provide testimony during a U.S. Senate Special Committee on Aging Forum in July of this year. The testimony of Johns, NAELA and NGA member and Joint Conference Chair, coincided with the release of the GAO report underscoring the significance of the problems with the present guardianship system. While our members are dedicated to professional, ethical guardianship for our nation's seniors, said Francine Saccio, NGA President, we agree that significant changes are long overdue for improving the guardianship system in most states across the country. The GAO report found only a few courts working well beyond the state minimum requirements for training and monitoring of guardianship. Those courts are the exception rather than the norm.
In the face of these reports, including felony allegations of a Michigan-based company providing guardianship for over 600 individuals and discoveries earlier this year by Texas Governor Rick Perry of a severe elder neglect cases in his state, the groups will publish guardianship implementation recommendations for states to use for raising standards and helping to fight this nationwide problem.
About the National Academy of Elder Law Attorneys (NAELA)Established in 1987, the National Academy of Elder Law Attorneys (NAELA) is a non-profit association that assists lawyers, bar organizations and others who work with older clients and their families. Members of NAELA are attorneys who are experienced and trained in working with the legal problems of aging Americans and disabled individuals. The mission of the National Academy of Elder Law Attorneys is to establish NAELA members as the premier providers of legal advocacy, guidance and services to enhance the lives of people with special needs and people as they age. NAELA currently has more than 4,800 members across the United States, Canada, Australia and the United Kingdom. For more information on NAELA, the 2004 Wingspan Implementation Work Groups and the 2004 Joint Conference please contact NAELA at 520.881.4005 or visit http://www.naela.org/.
About the National Guardianship Association (NGA)Founded in 1988, NGA is comprised of more than 730 individuals in public and private, for-profit and not-for-profit agencies and organizations as well as individuals concerned with guardianship issues. NGA provides its members with education and training, networking opportunities, and the opportunity to set a national agenda to ensure standards of excellence. The National Guardianship Foundation (NGF) administers a guardianship certification examination, which is the only national credentialing process for guardians in the nation. For more information, please contact NGA at 520.881.6561 or visit http://www.guardianship.org/.
About the National College of Probate Judges (NCPJ)The National College of Probate Judges (NCPJ) was organized in 1968 to improve the administration of justice in courts with probate jurisdiction. The College was established in response to public concern with the time and costs involved in estate administration. NCPJ is the only national organization exclusively dedicated to improving probate law and courts. Probate courts are responsible for equitably handling many kinds of problems in our society. Although they deal primarily with the estates of deceased persons, probate courts also play an important role in protecting the rights of people with special needs - the mentally ill, alcoholics, orphaned children, the aged and persons with developmental disabilities. For further information on NCPJ's membership, programs and events, contact NCPJ at 757.259.1841, or visit http://www.ncpj.org/.
Associations Contact: Ann Krauss 520.323.5786Colorado/On Site Contact: Stan Samples 770.605.0039
source
Sunday, July 5, 2009
Assessing The Need for Guardianship
source of article
May 3rd, 2009
Professionals whose practices are devoted to our aging population are often confronted with older adults who appear to be struggling to manage their financial or medical affairs. Questions may arise as to an individual’s competency, based upon 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 in 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:
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…. Gottlich, V., The Role of the Attorney for the Defendant in Adult Guardianship Cases: an Advocate’s Perspective, 7 Md. J. Contemp. Legal Issues 191, 197 (Fall/Winter 1995-1996) (quoting House Subcomm. on Health and Long-Term Care of the House Special Comm. on Aging, Abuses in Guardianship of the Elderly and Inform: A National Disgrace, H.R. Doc. No. 641, 100th Cong., 1st Sess. 4 (1987)).
However, those of us engaged in fields of practice involving the elderly feel an obligation to protect those who are 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 health care surrogate, etc.), See Regan, J., Morgan, R. and English, D. Tax, Estate & Financial Planning for the Elderly, §16.02 at 16-7 (Matthew Bender 2005), legal intervention may be necessary. Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
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. Frolik, L. and Brown, M., Advising the Elderly or Disabled Client, §22.01 (2d ed. 2003)
A guardianship (referred to by other terms, such as “conservatorship,” in some states) is a formal legal action for substitute decision-making: it confers upon a designated individual (the guardian) the right to make decisions on behalf of another (the ward). A guardianship action is an involuntary proceeding, and it 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 but not limited to the legal standards for determining incapacity, varies considerably among states. Id.; Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
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 decisions such as living arrangements and health decisions; a “guardian of the property,” to manage the incapacitated person’s estate and finances; or a “plenary guardian,” with power over both the person and the estate. Frolik, L. and Brown, M., Advising the Elderly or Disabled Client, §22.01 (2d ed. 2003) As discussed below, the court may also order a limited guardianship.
The Concept of a “Limited” Guardianship
Courts are increasingly recognizing the concept of a “limited guardianship”, in which the subject of the guardianship action is found to be an incapacitated person 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 guardianships is generally more prevalent in cases involving the developmentally disabled, as opposed to elderly clients suffering from dementia or Alzheimer’s disease. See Begley, T. and Jeffreys, J., Representing the Elderly Client, §17.04[D] at 17-9 (Aspen Publishers 2004).
Determining “Incapacity”: The Legal Requirements
The legal standard for determining “capacity” varies, depending upon 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/she is making by executing the will, and how each of these factors relate to the others. Restatement (Third) of Property: Wills & Other Donative Transfers § 8.1 (2003).
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. 17A Corpus Juris Secundum Contracts §141 (2008). 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.” 38 American Jurisprudence 2d §13 (2008).
In contrast, as set forth above, a guardianship action is predicated upon a
finding by a court that the individual in question is incapacitated. The legal standard for determining incapacity is based upon the statutory and common law of a particular state, and there is no universal legal definition of “incapacity”. Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13 NAELA Quarterly 3 (Summer 2000). 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. See Frolick, L., Science, Common Sense, and the Determination of Mental Capacity, 5 Psychology, Public Policy, and Law 41 (Mar. 1999).
Determining “Incapacity”: A Practical GuideThe 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 in the exploration of this area, and may serve to inform the decision as to whether further action is necessary.
1. Functional AssessmentA functional assessment involves the examination of the individual’s behavior in order to assess that individual’s contextual capacity. Functional assessments recognize that an individual may be incapacitated for some purposes but not for others. See Regan, J., Morgan, R. and English, D. Tax, Estate & Financial Planning for the Elderly, §7-8/2 at 7-35 (Matthew Bender 2005).
2.Cognitive AssessmentA cognitive assessment is a traditional mental health assessment to assess an individual’s orientation to time, place, person and intellectual functioning. Such assessments include the Mini Mental State Examination and the Mental Status Questionnaire. See Id.; Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
What To Do If You Suspect IncapacityIn the event that you suspect that an elderly client is incapacitated and that a guardianship may be appropriate, you can report your concerns to a variety of sources, including the individual’s family, close friends, health care provider or attorney. If the individual is institutionalized, you can report your concerns to the administrator of the facility. If the individual is not institutionalized, and the individual’s family, friends or medical doctor are unable or unwilling to take notice of your concerns (or if you know of no family members, friends or treating doctors of the individual), you may also contact local adult protective services agencies in your area.
May 3rd, 2009
Professionals whose practices are devoted to our aging population are often confronted with older adults who appear to be struggling to manage their financial or medical affairs. Questions may arise as to an individual’s competency, based upon 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 in 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:
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…. Gottlich, V., The Role of the Attorney for the Defendant in Adult Guardianship Cases: an Advocate’s Perspective, 7 Md. J. Contemp. Legal Issues 191, 197 (Fall/Winter 1995-1996) (quoting House Subcomm. on Health and Long-Term Care of the House Special Comm. on Aging, Abuses in Guardianship of the Elderly and Inform: A National Disgrace, H.R. Doc. No. 641, 100th Cong., 1st Sess. 4 (1987)).
However, those of us engaged in fields of practice involving the elderly feel an obligation to protect those who are 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 health care surrogate, etc.), See Regan, J., Morgan, R. and English, D. Tax, Estate & Financial Planning for the Elderly, §16.02 at 16-7 (Matthew Bender 2005), legal intervention may be necessary. Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
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. Frolik, L. and Brown, M., Advising the Elderly or Disabled Client, §22.01 (2d ed. 2003)
A guardianship (referred to by other terms, such as “conservatorship,” in some states) is a formal legal action for substitute decision-making: it confers upon a designated individual (the guardian) the right to make decisions on behalf of another (the ward). A guardianship action is an involuntary proceeding, and it 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 but not limited to the legal standards for determining incapacity, varies considerably among states. Id.; Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
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 decisions such as living arrangements and health decisions; a “guardian of the property,” to manage the incapacitated person’s estate and finances; or a “plenary guardian,” with power over both the person and the estate. Frolik, L. and Brown, M., Advising the Elderly or Disabled Client, §22.01 (2d ed. 2003) As discussed below, the court may also order a limited guardianship.
The Concept of a “Limited” Guardianship
Courts are increasingly recognizing the concept of a “limited guardianship”, in which the subject of the guardianship action is found to be an incapacitated person 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 guardianships is generally more prevalent in cases involving the developmentally disabled, as opposed to elderly clients suffering from dementia or Alzheimer’s disease. See Begley, T. and Jeffreys, J., Representing the Elderly Client, §17.04[D] at 17-9 (Aspen Publishers 2004).
Determining “Incapacity”: The Legal Requirements
The legal standard for determining “capacity” varies, depending upon 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/she is making by executing the will, and how each of these factors relate to the others. Restatement (Third) of Property: Wills & Other Donative Transfers § 8.1 (2003).
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. 17A Corpus Juris Secundum Contracts §141 (2008). 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.” 38 American Jurisprudence 2d §13 (2008).
In contrast, as set forth above, a guardianship action is predicated upon a
finding by a court that the individual in question is incapacitated. The legal standard for determining incapacity is based upon the statutory and common law of a particular state, and there is no universal legal definition of “incapacity”. Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13 NAELA Quarterly 3 (Summer 2000). 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. See Frolick, L., Science, Common Sense, and the Determination of Mental Capacity, 5 Psychology, Public Policy, and Law 41 (Mar. 1999).
Determining “Incapacity”: A Practical GuideThe 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 in the exploration of this area, and may serve to inform the decision as to whether further action is necessary.
1. Functional AssessmentA functional assessment involves the examination of the individual’s behavior in order to assess that individual’s contextual capacity. Functional assessments recognize that an individual may be incapacitated for some purposes but not for others. See Regan, J., Morgan, R. and English, D. Tax, Estate & Financial Planning for the Elderly, §7-8/2 at 7-35 (Matthew Bender 2005).
2.Cognitive AssessmentA cognitive assessment is a traditional mental health assessment to assess an individual’s orientation to time, place, person and intellectual functioning. Such assessments include the Mini Mental State Examination and the Mental Status Questionnaire. See Id.; Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
What To Do If You Suspect IncapacityIn the event that you suspect that an elderly client is incapacitated and that a guardianship may be appropriate, you can report your concerns to a variety of sources, including the individual’s family, close friends, health care provider or attorney. If the individual is institutionalized, you can report your concerns to the administrator of the facility. If the individual is not institutionalized, and the individual’s family, friends or medical doctor are unable or unwilling to take notice of your concerns (or if you know of no family members, friends or treating doctors of the individual), you may also contact local adult protective services agencies in your area.
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