GUARDIANSHIP AND CONSERVATORSHIP

Taking away an adult’s rights is a heavy burden…

Essentially, the question of whether or not an adult needs a guardian or a conservator comes down to the question of decision-making. Can the elderly individual listen to information and advice, rationally evaluate that advice, and then make and communicate decisions about medical care, living conditions, and finances in a way that keeps them and their money safe? And, can their decision-making be improved by technological assistance (such as hearing aids)? Finally, are there means of keeping the adult safe that are less restrictive than stripping them of their rights and having an unlimited guardian or conservator?

When I evaluate an adult for the potential need for a guardian or conservator, I typically complete the following tasks:

1. I meet with the adult on multiple occasions, usually in their home. It is helpful and an important aspect of this type of evaluation to see the adult’s living conditions. A person who cannot make good, safe decisions often lives in a home that is dirty, messy, and dangerous;

2. I conduct neurocognitive testing to determine the adult’s cognitive capacity;

3. I conduct a functional evaluation to determine if there are any mental health, physical health, or cognitive issues that functionally impair the adult’s ability to provide self-care and to take in information in order to make and communicate healthy decisions;

4. I collect information from collateral sources such as family members, friends, and medical providers;

5. I review as many medical records as are available;

6. I review any communications (emails, letters, voicemails, videos, etc.) that are available;

7. I formulate an opinion regarding whether or not a person is incapacitated or needs to be protected;

8. I make an opinion regarding whether or not there are less restrictive means available to keep an otherwise incapacitated person safe;

9. I formulate opinions regarding any potential limitations that should be placed on a guardian or conservator; and

10. I make recommendations regarding treatment, potential assisted living placement, prognosis, potential ability for the incapacitated adult to improve, and rehabilitation/habilitation planning.

Not every person who is technically incapacitated needs a guardian or conservator. Most states have a provision in their statutes that requires a court to use the least restrictive means possible to keep the adult safe. Sometimes, a full guardian is needed. Other times, a guardian who only makes medical decisions is sufficient. Some adults need a conservator to manage every aspect of their finances. Other adults only need a conservator who monitors their transactions to make sure they are not being taken advantage of. In certain cases, a person who is completely incapacitated does not need a guardian at all because they have children who are managing their care competently and humanely, and the adult is completely safe. The circumstances of each case are different, and I take those into account when I form my expert opinions.

In general, it is important for a guardianship or conservatorship evaluator to take into account the adult’s medical condition, their cognitive abilities (and whether or not they have dementia), how their physical and cognitive abilities affect their functioning; the risk for harm to the adult and the level of supervision that is needed, the adult’s values (do they want a guardian? Do they want a particular person to serve as guardian?), and if there are ways to improve or enhance the adult’s capacity.

With regard to functional capacities, psychologists and other medical providers tend to break those capacities into three broad categories:

1. Activities of Daily Living (ADLs): These are basic activities that keep a person safe and healthy, such as bathing, grooming, brushing teeth, moving, getting in and out of bed/chairs, and using the toilet independently;

2. Instrumental Activities of Daily Living (iADLs): These are more complex activities that are required to live a full life, such as paying bills, cleaning the house, cooking, getting from one place to another, driving, and managing a medication regimen;

3. Specific abilities related to the legal question: These are specific abilities that are often defined by law. For example, an adult who does not need a guardian should have the ability to receive and evaluate information from other people and then use that information to make and communicate safe decisions. The functional abilities possessed by an adult who does not need a conservator are the same, except those decision-making abilities need to be applied to financial decisions.