Do You Really Need a Guardianship?
Guardianship is one of society’s most drastic interventions, protecting individuals yet infringing upon fundamental human rights and opportunities for self-determination. Nebraska prioritizes less restrictive legal options such as, for financial decisions, appropriate use of joint accounts, durable powers of attorney, trusts, and representative payment for public benefits; and for personal and health decisions, advance directives and living wills.
Nebraska is one of only seven states that do not have a surrogate consent statute. In those states which have enacted them, these laws provide legal authority for health care decision-making when no guardian or agent had been appointed. States which have adopted these provisions recognize the importance of alternative means of consent to health care in the absence of advance directives. Instead of forcing families and incapacitated individuals into judicial guardianship proceedings for their failure to execute advance directives, surrogate consent laws allow physicians to consult a designated individual or group of individuals who can presumably convey the incapacitated or incompetent patient’s health care wishes and provide informed consent or refusal to proposed health care interventions. Currently, 44 states have enacted surrogate consent laws.
If a guardian is appointed, it should be as a last resort, and the order limited to only those areas in which the individual needs decision-making assistance. The importance of limited guardianship is a major theme of Nebraska’s Protective Proceedings statute (R.S. §30-2601 et seq.). Limited guardianship, participation of the individual in decision-making, and use of the person’s values and preferences are available alternatives to full guardianship.
A recent shift in the decision-making landscape is the advent of “supported decision-making.” The United Nations Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006, recognizes that persons with disabilities have the “legal capacity” and the right to make their own decisions, and that governments have the obligation to support them in doing so. For people with cognitive, intellectual, or psychosocial disabilities, Article 12 calls for a switch from a focus on disabilities to abilities, and from protection to support. Supported decision-making can be viewed as a key part of the “least restrictive alternative” spectrum; and has been called “a critically important alternative” to the guardianship model. Also, supported decision-making precepts can guide guardians in maximizing the voice of individuals they serve.
Despite the strong mandates in statute and standards, use of the least restrictive alternative principle in practice appears uneven at best—and “supported decision-making” is still in the early stages of recognition. While statistics are scant, anecdotal evidence and numerous press accounts confirm that guardianship orders are frequently overly broad or perhaps unnecessary; and that full guardianships are regularly prescribed when practical supports or a less drastic legal intervention would have sufficed.
The American Bar Association has pioneered a Practical Tool that offers concrete steps to implement the least restrictive alternative principle which can be implemented as a routine in the practice of law. The Practical Tool Resource Guide, published by the ABA, describes nine recommended steps in evaluating the need for guardianship:
• PRESUME guardianship is not needed. Notably, such a presumption is implicit in the requirement by state statute allowing guardianship only where a person’s needs cannot be met by less restrictive means.
• Clearly identify the reasons for concern. Which of the individual’s needs are not met?
• Ask if a triggering concern may be caused by temporary or reversible conditions. Look for steps to reverse the condition and postpone a decision until the condition improves.
• Determine if concerns can be addressed by connecting the individual to family or community resources, and making accommodations in place.
• Ask the person whether he or she already has developed a “team” to help make decisions.
• If the person does not already have an existing team and has difficulty with specific types of decisions, identify areas of strengths and limitations in decision-making.
• Screen for and address any potential challenges presented by the identified supports and supporters.
• If the person is able and wishes to select a trusted supporter to help make decisions and/or to appoint a legal surrogate, help the person do so in a way that is consistent with the person’s values and preferences.
• Limit any necessary petition and order.
Thanks to American Bar Assn
Jointly produced by the
Commission on Law and Aging;
Commission on Disability Rights;
Section on Civil Rights and Social Justice; and
Section on Real Property, Trust and Estate Law