Round Table delved into the messy world of guardianship. Messy because assessing capacity is a complex task. Messy because rescinding someone’s legal rights, whether in full or in part, is truly troublesome. Two hospital discharge planners who were present at the Round Table expressed frustration and dismay at how frequently guardianship is raised as a potential strategy for patients who wish to return home but medical staff have deemed it an unsafe environment. To determine capacity, a voluntary patient may be asked if they understand the consequences of receiving or declining a particular treatment or procedure. Or the patient may resist discharge to a SNF or assisted living facility and be considered irrational. How this patient responds to these questions and with how much clarity may determine if steps towards guardianship will proceed. Ultimately, what is at issue is who gets to determine the risk vs safety vs personal choice equation.
Disturbingly, the Gavisk and Greene journal article suggests that those in the decision making role – neither judges nor elder law attorneys nor professional guardians have clear and consistent criteria for determining capacity or the appropriateness of initiating proceedings or the ultimate decision for putting in place a guardianship relationship. Though their research has limitations, it highlights how quixotic determinations can be.
Recently a greater effort has been made in findings for limited guardianships or utilizing the concept of supported decision-making. This is a significant development because it accounts for individual needs and circumstances of a person. Rather than looking at the situation as an either/or outcome, supported decision-making recognizes that some skills or abilities may be more problematic than others and will need the support and consultation of an outside individual working alongside helping make choices consistent with the individual’s personal wishes. But supported decision-making takes time to evaluate and requires consistent monitoring. This shouldn’t be an impediment, but unfortunately it can be for professionals who are pressured for time and have limited available services to offer their clients, too often due to lack of financial resources.
So many questions remain about the guardianship system. How can we assess what a patient may look like in the hospital compared to when they return home? How – and I must – set aside my values and frame of reference about what is an appropriate way to live, whether it be with functional alcoholism or messy surroundings, if a person can sustain a life for him or herself as long as it is not harmful to others? Why is it that judges, who are the ultimate deliberators, are not specially trained in aging and disability concerns?
At close of discussion, we were reminded that many guardians do good work by visiting regularly, trying to learn about their ward’s history and personal life choices and making informed and ethical decisions. They are to be commended and supported in their role. It is not one I would take on easily.
The Round Table Discussion Group meets monthly for an interdisciplinary conversation with experienced professionals in the field of aging. Each conversation uses one or two journal articles as reference points. The articles read for this discussion were:
Guardianship Determinations by Judges, Attorneys, and Guardians, Melanie Gavish, MA and Edith Greene, Ph.D., Behavioral Sciences and the Law 25: 339-353 (2007).
Legal Capacity for All, Rebekah Diller, Fordham Urban Law Journal, April 1, 2016. Excerpted pages 520-545.