Friday, February 8, 2008

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

Judicial Determination of Capacity of

Older Adults in Guardianship Proceedings

Medical

Condition

Cognition

Everyday

Functioning

Values and

Preferences

Risk and

Level of Supervision

Means to

Enhance Capacity

American Bar Association

Commission on Law and Aging

American Psychological Association

National College of Probate Judges

1. Screen Case

2. Gather Information

3. Conduct Hearing

4. Make Determination

5. Ensure Oversight

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

ii

Judicial Determination of Capacity of

Older Adults in Guardianship Proceedings

Disclaimer

The views expressed in this document have not been approved by the governing or policy-setting bodies

of the American Bar Association, the American Psychological Association, or the National College of

Probate Judges, and should not be construed as representing policy of these organizations. Materials in

this book were developed based on the consensus of a working group.

This document is not intended to establish a standard of practice against which juridical or

clinical practice is to be evaluated. Rather, it provides a framework that judges may find useful

and effective in capacity determination.

Although the principles presented herein are intended to be generally relevant across all legal

jurisdictions, law and practice differ across state jurisdictions and sometimes even across county lines.

Thus, this book is intended to supplement (and cannot substitute for) a judge's working

knowledge of the capacity and guardianship statutes and case law specific to his/her jurisdiction.

This book focuses on issues in capacity determination, not all of adult guardianship.

Copyright (c) 2006 by the American Bar Association and the American Psychological Association.

All rights reserved.

The ABA and the APA hereby grant permission for copies of the forms and worksheets contained in this

book to be reproduced, in print or electronic form, for classroom use in an institution of higher learning,

for use by the judiciary, or for use by not-for-profit organizations, provided that the use is for noncommercial

purposes only and acknowledges original publication by the ABA and the APA, including

the title of the book, the names of the authors, and the legend "Reprinted by permission of the American

Bar Association and the American Psychological Association." Requests to reproduce these materials in

any other manner should be sent via e-mail to copyright@abanet.org.

ISBN: 1-59031-764-5

13 Digit ISBN: 978-1-59031-764-8

ABA Product Code: 4280026

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

iii

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.1

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

iv

Acknowledgements

his book is the result of a collaborative effort of members of the American Bar Association

(ABA) Commission on Law and Aging, the American Psychological Association (APA), and the

National College of Probate Judges (NCPJ).

This book was guided by a judicial advisory panel convened for this project: Hon. Steve M. King, of

Texas, Hon. Gary Cassavechia, of New Hampshire, and Hon. John N. Kirkendall, of Michigan. The

handbook was also reviewed by additional members of the Executive Committee of the National

College of Probate Judges: Hon. Grace G. Connolly, Hon. Ramond C. Eubanks, Hon. William J. Bate,

Hon. Luke Cooley, Hon. Joseph A. Egan Jr., Hon. Irvin G. Condon, Hon. John W. Voorhees, Hon. Jack

R. Puffenberger, and Ms. Mary Joy Quinn. The handbook received additional review by members of the

NCPJ, including Hon. Nikki Towry DeShazo, Hon John R. Maher, and Hon. Lawrence A. Belskis.

Additional reviewers included Erica Berman, Ann Soden, and Jack Schwartz. Forms and guides in this

book were informed and inspired by the work of others, including Hons. King, Kirkendall, and

Cassavechia, the Carolina Legal Assistance, Joan O'Sullivan, and the Massachusetts Guardianship Task

Force.

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings is the second work

product of the ABA/APA Assessment of Capacity in Older Adults Project Working Group, established

in 2003 under the auspices of the interdisciplinary Task Force on Facilitating APA/ABA Relations. The

first work product, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers was

published in 2005 and is available online at www.abanet.org/aging. Members of the ABA/APA Working

Group for this project are: Deborah DiGilio, M.P.H.; Barry Edelstein, Ph.D.; Gregory Hinrichsen, Ph.D.;

Daniel Marson, J.D., Ph.D.; Jennifer Moye, Ph.D.; David Powers, Ph.D.; Charles Sabatino, J.D.; and

Erica Wood, J.D. The judicial book was written by Jennifer Moye, Erica Wood, Daniel Marson, and

Charles Sabatino. Jennifer Moye was the editor of the judicial book. The working group expresses its

special thanks to Jorge Armesto and Jamie Philpotts for their editorial assistance.

Finally, we wish to acknowledge the Borchard Foundation Center on Law and Aging and the

Farnsworth Foundation for their financial support in the development, printing, and distribution of this

book.

T

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

v

Table of Contents

Acknowledgements ............................................................................................................. iv

Introduction.......................................................................................................................... 1

The Role of Judges in Capacity Determinations ............................................................... 2

Overview of Capacity Assessment ..................................................................................... 3

Six Pillars of Capacity .......................................................................................................... 4

1. Medical Condition Producing Functional Disability .............................................. 4

2. Cognitive Functioning Component ......................................................................... 4

3. Everyday Functioning Component.......................................................................... 4

4. Consistency of Choices with Values, Preferences, and Patterns ................... 5

5. Risk of Harm and Level of Supervision Needed .................................................... 5

6. Means to Enhance Capacity .................................................................................... 5

Step One: Screen the Case.................................................................................................. 6

Step Two: Gather Information ............................................................................................. 8

Step Three: Conduct Hearing ............................................................................................ 10

Step Four: Make Determination......................................................................................... 11

Step Five: Ensure Court Oversight ................................................................................... 14

APPENDIX 1: MODEL ORDERS AND FORMS .................................................................. 15

Model Form for Confidential Judicial Notes..................................................................... 16

Model Court Investigator Report ....................................................................................... 20

Model Order for Clinical Evaluation .................................................................................. 23

Model Clinical Evaluation Report...................................................................................... 25

Model Order for Guardianship of Person and Estate ...................................................... 33

Model Plan for Guardian of Person and Estate................................................................ 35

Model Annual Report for Guardian of Person and Estate .............................................. 37

Glossary .............................................................................................................................. 40

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

vi

APPENDIX 2: FACT SHEETS ............................................................................................. 42

Available online .................................................................................................................. 42

Capacity.............................................................................................................................. 43

Clinical Professionals ........................................................................................................ 44

Clinical Evaluation Report Instructions............................................................................ 45

Cognition and Cognitive Testing....................................................................................... 48

Everyday Functioning and Functional Assessment........................................................ 53

Guardianship Monitoring Practices .................................................................................. 55

Hearing: Maximizing Participation .................................................................................... 59

Hearing: Examination of the Healthcare Professional .................................................... 60

Jury Instructions................................................................................................................. 61

Less Restrictive Alternatives to Guardianship ................................................................ 62

Limitations to Guardianship .............................................................................................. 66

Means to Enhance Capacity .............................................................................................. 68

Medical Conditions Affecting Capacity ............................................................................ 70

Role of Judges in Capacity Determinations..................................................................... 74

Strategies for Improving Practice in Your Court ............................................................. 76

Temporary and Reversible Causes of Confusion............................................................ 78

Useful Websites .................................................................................................................. 80

Values ................................................................................................................................. 82

End Notes ............................................................................................................................ 86

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

1

Introduction

Background

Guardianships for older adults are increasing.

Guardianship law and practice is undergoing dramatic revision.

Definitions of capacity have evolved to reflect modern understandings of brain

dysfunction, functional abilities, and the law: 􀀝

Capacity is task specific, not global.

Capacity can fluctuate.

Capacity is situational.

Capacity is contextual.

Determining capacity in older adults with complex impairments can be difficult.

Limited guardianships based on partial loss of capacity can be challenging to craft.

Goals of This Book

To provide practical tools for capacity determination.

To address the needs of a wide audience of judges.

To improve communication between judges and healthcare professionals.

To provide resources useful in identifying less restrictive alternatives and fashioning

limited guardianship, while recognizing that plenary guardianship often may be

appropriate.

To call attention to temporary and reversible causes of impairment. 􀀝

To assist courts in enhancing the capacity of older adults. 􀀝

Use of This Book

Forms and resources referenced herein are available online to download for ready use

and modification at http://www.abanet.org/aging; http://www.apa.org/pi/aging; and

http://www.ncpj.org. In the hard copy version, the symbol "􀀝" indicates that

additional information can be found in the online version of the book; if reading the

online version, the symbol provides a link to the resource.

Forms and resources may be reproduced for use in guardianship proceedings (for

other uses, refer to copyright page).

Although the forms are generally relevant, each form will need to be modified to suit

local practices. Judges are encouraged to freely adapt forms to jurisdictional needs and

laws.

This book is generally consistent with the Uniform Guardianship and Protective

Proceedings Act2 or UGPPA. 􀀝

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

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The Role of Judges in Capacity Determinations

Judges Balance Multiple Goals 􀀝

Decide capacity in a manner that balances well-being and rights.

Promote self-determination.

Identify less restrictive alternatives to guardianship. 􀀝

Provide guidance to guardians. 􀀝

Make determinations of restoration.

Craft limited guardianship when appropriate. 􀀝

What Is Limited Guardianship?

A limited guardianship is a relationship in which the guardian "is assigned only those duties and

powers that the individual is incapable of exercising."3

The concept of limited guardianship is promoted in the UGPPA4 and the National Probate

Court Standards, which directs probate judges to "detail the duties and powers of the guardian,

including limitations to the duties and powers, and the rights retained by the individual." 5

In some cases, such as coma or advanced dementia, individuals are totally impaired by their

medical condition. In other cases, a fine tuned assessment may help to identify specific areas—

even if relatively small in scope—in which the individual may retain rights.

Examples of limitations to guardianship include rights retained by an individual to: 􀀝

Determine living arrangements.

Spend small amounts of money.

Make and communicate choices about roommates.

Initiate and follow a schedule of daily and leisure activities.

Establish and maintain personal relationships with friends and relatives.

Determine degree of participation in religious activities.

Benefits of Limited Guardianship

Maximizes the autonomy of the person with diminished capacity.6

Is directly responsive to the concept of the least restrictive alternative.

Supports an individual's mental health.7

Encourages the guardian to take into account the wishes of the individual, moving the

relationship more toward collaboration and compromise.

Risks of Limited Guardianship

In some cases, the elder is at risk for or has been subject to abuse, and the use of limited

guardianship could keep the elder at some degree of continuing risk. In these cases, plenary

guardianship may be the appropriate protective mechanism.

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

3

Overview of Capacity Assessment

comprehensive assessment of capacity for guardianship proceedings requires collecting

information on six factors. In this book, these factors will be referred to as the "Six Pillars of

Capacity Assessment." Information about these factors may be obtained from healthcare

professionals, court investigators, guardians ad litem, family members, adult protective service workers,

and other involved parties. This book describes the six pillars of capacity assessment and how they

inform each judicial action step in adult guardianship proceedings. Links to related model forms and

resources are provided throughout the book.

Six Pillars of Capacity Assessment

Medical

Condition

Cognition Everyday

Functioning

Values and

Preferences

Risk and

Level of

Supervision

Means to

Enhance

Capacity

Five Steps in Judicial Determination of Capacity

1. Screen Case

2. Gather

Information

3. Conduct

Hearing

4. Make

Determination

5. Ensure

Oversight

a. Review trigger

b. Determine if

guardianship is

potentially

appropriate

􀃎 If not, use less

restrictive

alternatives

c. Determine if

immediate risk of

substantial harm

􀃎 If so, use

emergency

guardianship

a. Receive reports

b. Ascertain if more

information necessary

c. Obtain additional

reports

a. Take judicial note of

reports

b. Receive testimony

c. Accommodate,

observe, and/or

engage individual

a. Analyze evidence in

relation to the elements

of state law

b. Categorize

Judgment

􀃎If minimal or no

diminished capacity,

use less restrictive

alternatives

􀃎 If severely

diminished capacities

on all fronts, use

plenary guardianship

􀃎If mixed strengths

and weaknesses, use

limited guardianship

c. If limited, identify

rights retained and/or

removed

d. Identify statutory

limits of guardian

authority

a. Monitor changes in

capacity and

guardian actions

􀃎 If condition may

improve, use

time-limited

guardianship

b. Instruct guardian

A

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

4

Six Pillars of Capacity

1. Medical Condition Producing Functional Disability

Historically, many state statutes included "physical illness" or "physical disability" as a sufficient

disabling condition, and some opened a very wide door by including "advanced age" and the

catch-all "or other cause." Such amorphous and discriminatory labels invited overly subjective

judicial determinations.

Today, judges require information on the specific disorder causing diminished capacity. With

aging, a wide range of neurological and psychiatric conditions may impact capacity. 􀀝

Some conditions are temporary and reversible. 􀀝

2. Cognitive Functioning Component

"Cognitive functioning" is a component of statutory standards for capacity in many states.

The 1997 UGPPA defines an incapacitated person as an individual who … is unable to

receive and evaluate information or make or communicate decisions to such an

extent that the individual lacks the ability to meet essential requirements for physical

health, safety, or self-care, even with appropriate technological assistance.8

Cognitive functioning includes alertness or arousal, as well as memory, reasoning, language,

visual-spatial ability, and insight. Neurological as well as psychiatric or mood disorders may

impact information processing. 􀀝

3. Everyday Functioning Component

Until recent years, the everyday functioning tests found in state law were fairly vague and

subjective, such as "incapable of taking care of himself";9 "unable to provide for personal needs

and/or property management";10 or "incapable of taking proper care of the person's self or

property or fails to provide for the person's family."11

Vague standards invite judgments of incapacity based upon the court's opinion of the

reasonableness of one's behavior—essentially, a subjective test.

Many states now set a higher and more objective bar for weighing functional behavior by

focusing only on one's ability to provide for one's "essential needs," such as "inability to meet

personal needs for medical care, nutrition, clothing, shelter, or safety."12

Healthcare professionals divide everyday functioning into the "activities of daily living" or

"ADLs" (grooming, toileting, eating, transferring, dressing) and the "instrumental activities of

daily living" or "IADLs"—abilities to manage finances, health, and functioning in the home and

community. 􀀝

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

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4. Consistency of Choices with Values, Preferences,

and Patterns

Capacity reflects the consistency of choices with the individual's life patterns, expressed values,

and preferences. Choices that are linked with lifetime values are rational for an individual even if

outside the norm.

Knowledge of values is not only important in determining capacity, but also in the guardianship

plan. The UGPPA provides that a guardian must "consider the expressed desires and personal

values of the [individual] to the extent known to the guardian."13

Core values may affect the individual's preference for who is named guardian, as well as

preferences concerning medical decisions, financial decisions, and living arrangements. 􀀝

5. Risk of Harm and Level of Supervision Needed

Most state statutes require that the guardianship is necessary to provide for the essential needs of

the individual (i.e., there are no other feasible options), or that the imposition of a guardianship is

the least restrictive alternative for addressing the proven substantial risk of harm.14

The social and environmental supports may decrease the risk. Lack of supports may increase risk.

In this manner, the degree of risk is not merely a consideration of the condition and its effects, but

the consideration of these within the environmental supports and demands.

The level of supervision determined by the judge must match the risk of harm to the individual

and the corresponding level of supervision required to mitigate that risk.

In some cases, the risk is low and the need can be addressed through a less restrictive alternative

or limitation to guardianship. In other cases, less restrictive alternatives have failed or are

inappropriate, and a plenary guardianship is necessary to protect the well being of the elder.

6. Means to Enhance Capacity

The judge must be vigilant for means to enhance capacity through practical accommodations and

medical, psychosocial, or educational interventions. 􀀝

The mere existence of a physical disability should not be a ground for guardianship, since most

physical disabilities can be accommodated with appropriate medical, functional, and technological

assistance directed by the individual.

Information about enhancing capacity informs many judicial actions:

Hearing. How to maximize capacity at the hearing. 􀀝

Review Period. What is the appropriate period for judicial review, especially if restoration of

capacity through treatments is possible.

Plans. What treatments, services, habilitation should be detailed in the guardianship plan. 􀀝

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

6

Step One: Screen the Case

1a. Review Trigger

What is bringing this case to court now?

Identify the immediate issue or occurrences that brought the case to court at this time—for

example, a question of institutional placement, sale of property, medical treatment, or financial

exploitation.

Ensure that the triggering issue concerns protection of the individual, and is not for the

convenience or benefit of a third party, such as a family, heir, hospital, or nursing home. Judges

may address the concerns of other parties, but "the interests of the incapacitated person should

take precedence."15

1b. Determine if Guardianship Is Potentially Appropriate

Have all procedural requirements been met?

Is venue proper?

Are notice and service proper?

Has counsel been appointed if required or if needed?

Has individual been informed of hearing rights?

Is guardianship necessary and helpful in this case?

Put a mechanism in place to screen out cases that are inappropriate for guardianship. Some courts

have designated staff to work with petitioners, ensuring that cases that come before the court for

judicial intervention are necessary and that petitioning the court for guardianship is, in reality, a

last resort. Seek to determine that:

There are no less restrictive alternatives. Perhaps the individual has executed durable

health care and financial powers of attorney, and there is no allegation of abuse of

those powers. Perhaps the only issue is authority for medical treatment and the state

has a default surrogate law allowing family members to make health care decisions.

Perhaps a more supervised housing setting or intensive in-home services would

abrogate the need for a guardian. 􀀝

A guardian would solve the issue. There are some situations where putting a guardian

in place would not address the problem at hand. "Guardianship is not appropriate in

some circumstances. A probate guardian cannot make a person reveal where assets,

such as vehicles are hidden, cannot [in some instances] force mental health treatment,

cannot provide personal services if the person is never at home, is threatening, locks

caregivers out of the home, or is homeless by choice." 16

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

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1c. Determine if Immediate Risk of Substantial Harm

Is this a case of "emergency" guardianship?

A guardianship case may come before the judge as a petition for emergency guardianship. For

example, there is need for an urgent medical procedure and no one to provide informed consent, or

there is a family dispute and someone is seeking to "kidnap" the individual to an unknown

location. Most states, as well as the UGPPA17 and the National Probate Court Standards18 have

provisions for emergency guardianship.

In some states, and in the UGPPA, the appointment of an emergency guardian is not a finding of

diminished capacity, or evidence that a permanent guardian is needed.

Because time is of the essence, procedural requirements for emergency guardianships are less than

for permanent guardianship. Thus, it is important to exercise caution.

Be sure the case presents a true emergency according to state law. That is, the individual's health,

safety, or welfare will be substantially harmed over the time it takes for compliance with regular

guardianship procedures.

Be sure the emergency guardianship does not become an automatic doorway to permanent

guardianship that bypasses procedural safeguards.

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

8

Step Two: Gather Information

2a. Receive Reports

Information about the case may be brought by many parties.

A Court Investigator Report (a guardian ad litem or other court investigator or visitor—the use

of these terms varies by jurisdiction) may be required or requested.

As the eyes and ears of the court, the investigator can identify the triggering issue, less

restrictive alternatives, risk of harm, whether there is a need for clinical evaluation, whether

the individual requires counsel, the family situation, who might provide important testimony,

and suggestions for limitations to guardianship and/or elements of a guardian plan, as well as

evaluate the six pillars of capacity.

See page 20 for a model court investigator report.

A Clinical Evaluation Report may be required or requested.

A comprehensive evaluation will cover all six pillars of capacity, namely: the medical

condition, cognitive functioning, everyday functioning, values and preferences, risk and level

of supervision needed (including social support), and means to enhance capacity at the hearing

and later.

See page 23 for a model order for clinical evaluation.

Families and other lay persons may submit affidavits providing important information.

.

2b. Ascertain if More Information Is Necessary

After reviewing the information, further assessment or investigation may be necessary for the

following reasons:

State statutory requirements. State statutes set out the necessary elements of a

clinical evaluation, which generally reflect the elements in the state definition of

"incapacitated person." 19 For specific statutory requirements of clinical evaluations,

see http://www.abanet.org/aging/guardianship.html.

Red flags signaling need for more in-depth information. If the individual has

temporary or reversible causes of cognitive impairment or other mitigating factors that

have not been addressed, a more sophisticated and in-depth evaluation is warranted. 􀀝

Clinical statement appears one-sided. A clinical evaluation secured by the petitioner

is for the purpose of supporting the petition and may lack attention to the individual's

areas of strength, a prognosis for improvement, or important situational factors. An

independent assessment can flesh out skeletal or purely one-sided information.

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

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2c. Obtain Additional Reports

If a review of the information reveals that information is not available on all six pillars of capacity

assessment or has other shortcomings, then more information must be obtained from the clinician,

court investigator, family, or other informants. a model order for independent evaluation.

A judge may need to order an independent and more comprehensive evaluation by a clinical

professional. See page 23 for a model order for independent evaluation.

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

10

Step Three: Conduct Hearing

3a. Take Judicial Note of Reports

The judge by his or her own motion may recognize the report of the guardian ad litem, or physician's

report or other clinical statement, and admit them into evidence.

3b. Receive Testimony

The judge may receive testimony from witnesses, such as relatives, friends, neighbors, care providers,

geriatric care managers, or others, called by the petitioner or the individual who is the subject of the

petition. The individual, him or herself, may or may not speak. In some jurisdictions and in some

cases, the guardian ad litem or court investigator makes a statement.

3c. Accommodate, Observe, and/or Engage the Individual

The individual has a right to be present at the hearing.

About half of the state laws and the UGPPA require that the individual be present unless good

cause is shown.

The individual's presence is encouraged as it:

Allows his or her involvement in the proceedings. Often, people may want their "day

in court" and feel more satisfaction from the hearing if they are present and involved,

whether a guardian is appointed or not.

Allows the judge an opportunity to observe, personally, the individual.

May shed a different light on the case.

The individual may not be present if:

A medical condition prevents it (e.g., person is in a coma).

The individual does not wish to come.

To determine if the individual can attend, obtain clinical or court investigative reports concerning

the individual's presence at the hearing. Assessments of whether attendance at the hearing would

be harmful or not realistically possible may be included in the petition, clinical evaluation form, or

court investigator report.

The following questions may guide this process:

Does the individual want to be present?

Would it be harmful in any way?

Would the individual understand at least some of the proceeding?

Would the individual be able to communicate in court?

What accommodations are needed (e.g., hearing amplifier, move location of hearing) to

maximize participation?

The individual and his or her attorney will determine whether the person becomes a witness.

However, in an uncontested case, the judge may gain insight and/or may make the person feel

involved by engaging him or her with a few questions.

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

11

Step Four: Make Determination

4a. Analyze Evidence in Relation to Elements of State Law

1. The Medical Condition

What is the medical cause of the individual's alleged incapacities and will it improve, stay the

same, or get worse? Based on up-to-date clinical reports, determine the cause of the

diminished capacity. Depression and delirium are often mistaken for dementia and need to be

ruled out.

2. Cognitive Functioning

In what areas is the individual's decision-making and thinking impaired and to what extent?

Consider whether the individual is lucid or confused, alert or comatose, or can understand

information, communicate, or can remember information over time. Consider areas of strength

and weakness and the severity of impairment.

3. Everyday Functioning

What can the individual do and not do in terms of everyday activities? Does the individual

have the insight and willingness to use assistance or adaptations in problem areas? Can the

person:

Care of Self

Maintain adequate hygiene, including bathing, dressing, toileting, dental

Prepare meals and eat for adequate nutrition

Identify abuse or neglect and protect self from harm

Financial

Protect and spend small amounts of cash

Manage and use checks

Give gifts and donations

Make or modify a will

Buy or sell real property

Deposit, withdraw, dispose, or invest monetary assets

Establish and use credit

Pay, settle, prosecute or contest any claim

Enter into a contract, financial commitment, or lease arrangement

Continue or participate in the operation of a business

Resist exploitation, coercion, undue influence

Medical

Make and communicate a healthcare decision or medical treatment

Choose health facility

Choose and direct caregivers

Make an advance directive

Manage medications

Contact help if ill or in a medical emergency

Home and Community Life

Maintain minimally safe and clean shelter

Be left alone without danger

Drive or use public transportation

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

©American Bar Association Commission on Law and Aging – American Psychological Association

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Make and communicate choices about roommates

Initiate and follow a schedule of daily and leisure activities

Travel

Establish and maintain personal relationships with friends, relatives, co-workers

Determine his or her degree of participation in religious activities

Use telephone

Use mail

Avoid environmental dangers, such as the stove and poisons, and obtain appropriate emergency

help

Civil or Legal

Retain legal counsel

Vote

Make decisions about legal documents

Other rights under state law

4. Consistency of Choices with Values, Patterns, and Preferences

Are the person's choices consistent with long-held patterns or values and preferences? Each

of the above factors must be weighed in view of the individual's history of choices and

expressed values and preferences. Do not mistake eccentricity for diminished capacity.

Actions that may appear to stem from cognitive problems may in fact be rational if based on

lifetime beliefs or values. Long-held choices must be respected, yet weighed in view of new

medical information that could increase risk, such as a diagnosis of dementia.

Key areas to consider include matters such as:

Does the individual want a guardian?

Does the individual prefer that decisions be made alone or with others?

Whom does the individual prefer to be guardian/make decisions?

What makes life good or meaningful for an individual?

What have been the individual's most valued relationships and activities?

What over-arching concerns drive decisions—e.g., concern for the well-being of family,

concern for preserving finances, concern for maintaining privacy, etc.?

Are there important religious beliefs or cultural traditions?

What are the individual's strong likes, dislikes, hopes, and fears?

Where does the individual want to live?

5. Risk of Harm and Level of Supervision Needed

What is the level of supervision needed? How severe is the risk of harm to the individual?

Determine what degree of supervision will address the individual's needs and mitigate the risk

of harm.

6. Means to Enhance Functioning

What treatments might enhance the individual's functioning? Consider if treatments for the

underlying condition might improve functioning. Notice whether the individual might be able

to use technological aids to maintain independence. Key interventions are:

Education, training, or rehabilitation

Mental health treatment

Occupational, physical, or other therapy

Home or social services

Medical treatment, operation, or procedure

Assistive devices or accommodation

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4b. Categorize Judgment and Make Findings

There is no simple formula that will help judges make the determination. The following broad

classification could serve as an initial schema:

􀃆 If minimal or no incapacities, petition not granted, use less restrictive alternative.

􀃆 If severely diminished capacities in all areas, or if less restrictive interventions have failed,

use plenary guardianship.

􀃆 If mixed strengths and weaknesses, use limited guardianship.

When appropriate (or if required by law), a concise written record of the key findings and

rationale for the judge's decision will serve as:

the basis for any appeal;

the basis for limiting the guardianship order; and

the basis for an effective plan to serve the individual's needs.

4c. If Limited Order, Identify Rights Retained and/or Removed

The cases in which there are "mixed areas" of strengths and weaknesses present the greatest

challenge—and the greatest opportunity—for the "judge as craftsman" to tailor a limited order to

the specific needs and abilities of the individual.

4d. Identify Statutory Limits of Guardian's Authority

State guardianship statutes, honed by state case law, will set the start-point on which to base the

scope of the court order. Statutes vary in the extent of rights and duties automatically transferred

to the guardian.

In many states, most or all rights are transferred to the guardian unless retained with the

incapacitated person by court order.

In other states, all rights are retained unless specifically transferred to the guardian by court order.

Some statutes carve out basic rights that are retained by the individual unless the court orders

otherwise—such as the right to vote or the right to make a will.

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Step Five: Ensure Court Oversight

5a. Monitor Changes in Capacity and Guardian Actions

Court monitoring of guardianships has many critical functions, one of which is monitoring

changes to the individual's level of capacity.

Short-term Review of Capacity

If the individual's level of capacity may improve soon with treatment (e.g., for subdural hematoma

after a fall), the guardianship should be referred for review within a short time period.

Annual Review of Capacity

Unlike with probate of decedents' estates, in guardianship there is a living being whose needs may

change over time, may last for many years, and may include excruciatingly complex decisions

about medical treatment, placement, and trade-offs between autonomy and beneficence. An initial

assessment on which the court made an original order may no longer be valid and a re-assessment

may be required. A limited order or guardianship plan may require revision. Annual reports should

note changes in capacity.

See page 37 for a model annual report.

5b. Instruct Guardian

The guardian can be provided immediate instructions by the court, which may include the

frequency of reporting and the requirement to submit a guardianship plan.

A guardianship plan, required in some jurisdictions, is a forward-looking document in which the

guardian describes to the court the proposed steps to be taken for care of the individual. A

guardianship plan provides an avenue to promote individual autonomy and rights, as well as to

strengthen accountability. Guardianship plans are useful because they20:

Establish a baseline against which subsequent reports can be measured.

Reflect care-planning for nursing home residents under federal regulations.21

Allow for minor changes without consulting the court, but would require court

approval for any substantial adjustments.

Guardianship plans should involve the incapacitated person to the extent possible to outline the

services and strategies that will be used to implement the order, including, most importantly, how

those rights retained in limited orders will be ensured. Even where legal consent is not possible,

the assent of the person should be sought.

Guardianship plans can detail treatments and services and the values that should guide future

decisions as have been discovered in the clinical and court investigative reports.

See page 35 for a model guardianship plan.

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APPENDIX 1: MODEL ORDERS AND FORMS

These materials are available online at http://www.abanet.org/aging;

http://www.apa.org/pi/aging; and http://www.ncpj.org.

These forms match the general framework

presented in this book.

Revise these forms according to your

jurisdictional needs and laws.

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Model Form for Confidential Judicial Notes

State of

County of

In the Matter of:

In the XXX Court of Justice

XXX Division

File No.

Procedural

Procedural Requirements.

Is venue proper? [ ] yes [ ] no

Are notice and service proper? [ ] yes [ ] no

Has counsel been appointed if required or if needed? [ ] yes [ ] no

Has individual been informed of hearing rights? [ ] yes [ ] no

Appropriateness of Guardianship.

Will guardianship solve this problem? [ ] yes [ ] no

Have all less restrictive alternative been exhausted? [ ] yes [ ] no

If emergency guardianship requested

Is there immediate risk of substantial harm? [ ] yes [ ] no

Would individual be harmed if regular guardianship procedures used? [ ] yes [ ] no

Clinical Reports.

Does it meet state requirements? [ ] yes [ ] no

Is it balanced (vs. one sided)? [ ] yes [ ] no

Are reversible causes of impairment / mitigating factors considered? [ ] yes [ ] no

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Determination

The Medical Condition

What is the medical condition affecting functioning?

How long has it been going on and other historical facts?

How severe is the condition?

Will it improve with time or treatment?

What are the reversible or mitigating factors?

Cognitive Functioning

In what areas are the individual's decision-making and thinking impaired and to what extent?

Everyday Functioning

Financial Strengths:

Weaknesses:

Health Care Strengths:

Weaknesses:

Personal Safety and Hygiene Strengths:

Weaknesses:

Home and Community Strengths:

Weaknesses:

Other Civil Matters Strengths:

Weaknesses:

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Consistency of Choices with Values, Patterns, and Preferences

Does the individual want a guardian? If so, whom?

How does the person prefer decisions are made (alone or with others)?

Where does the person want to live? Why?

What makes life meaningful or good?

What factors are of greatest concern to this person in making decisions?

Are there any religious or cultural beliefs to be considered?

Risk of Harm and Level of Supervision Needed

What are the risks to the individual?

What social factors protect or increase risk?

How significant is this risk? How likely is the risk?

What level of supervision is needed to ensure safety while preserving autonomy?

Means to Enhance Functioning

What treatments or accommodations might enhance the individual's functioning?

Categorization of finding

[ ] Minimal or no diminished capacity 􀃆 less restrictive alternatives, dismiss petition.

[ ] Severely diminished capacities on all fronts 􀃆 plenary guardianship.

[ ] Mixed strengths and weaknesses 􀃆 limited guardianship.

Limits, special:

Limits, statutory requirements:

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Oversight

Period of Review

Condition may improve

[ ] Time-limited guardianship 􀃆 guardianship will expire in ___ days.

or

[ ] Short-term review 􀃆 guardian to [ ] file inventory/appraisal

[ ] report on medical status

in ___ days.

or

[ ] Annual review 􀃆 guardian to file report in 12 months.

Guardian Report

Bond/Sureties:

Inventory/Appraisal:

Financial Accounting:

Guardianship Plan – Elements of Care Planning:

Treatments to be considered:

[ ] Education, training, or rehabilitation

[ ] Mental health treatment

[ ] Occupational, physical, or other therapy

[ ] Home or social services

[ ] Medical treatment, operation, or procedure

[ ] Assistive devices or accommodation

Notes on plan:

Medical needs:

Personal needs:

Financial needs:

Values to be considered:

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Model Court Investigator Report

State of

County of

In the Matter of:

In the XXX Court of Justice

XXX Division

File No.

1. Screen Case

1a. Review Trigger

What brings the case to court now?

1b. Appropriateness of Guardianship

Have all procedural requirements been met? [ ] yes [ ] no

Will guardianship solve this problem? [ ] yes [ ] no

If not, why not?

Have less restrictive alternatives been explored? [ ] yes [ ] no

If not, suggest less restrictive alternatives to try:

1c. Appropriateness of Emergency Procedures (if Emergency Guardianship Requested)

Is there immediate risk of substantial harm? (medical emergency, abuse) [ ] yes [ ] no

Describe:

Would individual be harmed if regular guardianship procedures were used? [ ] yes [ ] no

How?

2. Gather Information

2a. Receive Reports

Who has submitted affidavits or reports?

[ ] Individual (alleged incapacitated person) [ ] Family

[ ] Healthcare Professionals [ ] Adult Protective Service

[ ] Other: ______________

2b. If a Healthcare Professional Has Submitted a Report

Does it meet state requirements? [ ] yes [ ] no

Is it balanced (vs. one sided)? [ ] yes [ ] no

Is information sufficient for capacity?

[ ] Medical conditions [ ] Severity [ ] Prognosis [ ] Reversible causes of dementia

[ ] Cognitive and emotional functioning [ ] Everyday functioning

[ ] Values and preferences [ ] Risk of harm

[ ] Treatments, accommodations, or devices that may improve capacity

2c. If Additional Information Is Needed, Obtain Additional Information

[ ] Written reports by the individual, family, healthcare professionals

[ ] Interviews with individual, family, healthcare professionals

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Notice

Who served notice?

Where was notice served?

Describe how the individual's rights were communicated and the method (written, verbal) and language

used:

What was the individual's understanding of the concept of guardianship?

[ ] good [ ] fair [ ] poor [ ] unable to determine

What was the individual's attitude towards guardianship?

[ ] consenting [ ] opposed [ ] unable to determine

Interview

Date and place of interview:

Physical health: [ ] excellent [ ] good [ ] fair [ ] poor

Comments:

Mental health: [ ] excellent [ ] good [ ] fair [ ] poor

Comments:

Cognitive functioning: [ ] excellent [ ] good [ ] fair [ ] poor

Comments:

Emotional functioning: [ ] depressed [ ] anxious [ ] manic [ ] psychotic

Comments:

Everyday abilities (ability to care for self, make financial and medical decisions, live independently):

Recommendations for the Hearing

Is the individual able to attend the hearing?

If yes, what accommodations should be made for the individual?

What needs are there regarding representation of the individual by counsel?

Who should testify at the hearing?

Recommendations for the Guardianship Order

Is guardianship needed?

Can this order be limited in any way? If yes, how?

Recommendations for the Guardianship Plan

What education, training, treatment, procedure, devices, or living situation might help the individual?

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Supplemental Attachment for Court Investigator Report

Capacity Checklist

Use this checklist to determine if there is sufficient information regarding the individual's

capacity.

1. Medical Condition

What are the physical diagnoses? How severe are they? Might they improve? When?

What are the mental diagnoses? How severe are they? Might they improve? When?

When did the problem start, how long has it been going on, are there any recent medical or social

events, what treatments and services have been tried?:

What are the medications, including dosage? Could medications make capacity worse?

Have all temporary or reversible causes of cognitive impairment been evaluated and treated?

Are there any mitigating factors (e.g., hearing loss, vision loss, bereavement) that may cause the

person to appear incapacitated and could improve with time or treatment?

2. Cognitive Functioning

What is the individual's level of alertness/arousal, orientation, memory and cognitive abilities,

psychiatric and emotional state?

3. Everyday Functioning

What can the individual do in terms of taking care of self? Making financial decisions? Making medical

decisions? Taking care of the home environment and functioning independently in the community?

What is the level of functioning related to any other specific legal matters in this case (e.g., sale of

home, move to nursing home)?

4. Values

Does the person want a guardian? If yes, who does the person want to be guardian?

Where does the person want to live? What is important in a home environment?

What makes life good or meaningful for an individual? What have been the individual's most valued

relationships and activities?

Does the individual prefer that decisions be made alone or with others? If others are involved, with

whom does the individual prefer to make decisions?

What over-arching concerns drive decisions—e.g., concern for the well-being of family, concern for

preserving finances, worries about pain, concern for maintaining privacy, etc.?

Are there important religious beliefs or cultural traditions? What are the individual's strong likes,

dislikes, hopes, and fears?

Are there any specific preferences regarding decisions for personal care, financial, medical, or living

situation?

5. Risk of Harm and Level of Supervision Needed

Is there immediate risk of substantial harm? Is there an ongoing level of risk of harm to the individual or

others? How/why? Has the individual been victim to abuse, neglect, or exploitation? What level of

supervision and what level of guardianship is needed to protect the individual?

6. Means to Enhance Capacity

Can the individual attend the hearing?

Are any accommodations necessary for the hearing, such as change of location, adjusting approach for

hearing, visual, cognitive loss? Holding the hearing at bench or in chambers?

In the future, would any education, training, treatment, assistive device, or housing arrangement benefit

the individual?

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Model Order for Clinical Evaluation

State of

County of

In the Matter of:

In the XXX Court of Justice

XXX Division

File No.

1. Provide a clinical evaluation of (name) for the purposes of guardianship.

2. The purpose of this evaluation is to enable to the court to determine whether the individual identified

above is incapacitated according to (state) definition, and requires a guardian. (Add any other

issues that are also facing the court, e.g., issues requiring special powers.)

3. This individual is being evaluated for guardianship due to (give any background information that is

essential to understanding the case).

4. Additional historical information that may be helpful to you in understanding the case is (cite

examples of problem behavior, social, medical, or legal background factors).

5. For the purpose of guardianship in this state, the following definition of incapacity applies: (cite

statutory standard for an incapacitated person).

6. Whenever possible, this court seeks to limit any guardianship orders, providing the guardian with

authority only in the areas in which the individual needs decisional or functional assistance.

7. In your report, please address the following elements:

(i). Describe mental or physical conditions impacting everyday functioning, including: diagnosis,

severity of illness, prognosis, history, medications. Describe any medical or psychosocial factors

that may be the cause of temporary and reversible impairment, such as depression,

malnutrition, dehydration, transfer trauma, polypharmacy, alcohol use, or other factors that

require immediate attention.

(ii). Describe the level of alertness/arousal, cognitive functioning, and psychiatric or emotional

symptoms.

(iii). Describe the individual's strengths and weaknesses in the following areas:

Care of self

Financial

Health care

Home and community life

Civil matters

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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(iv) Indicate extent to which current choices are consistent with the individual's long-held

commitments and values. Is there any information about the individual's values or preferences

that should be considered in the guardianship determination and plan? Do educational potential,

adaptive behavior, or social skills enhance current or future functioning?

(v) Given the above diagnosis and functional strengths/weaknesses, what is the immediate and

ongoing risk of harm to the individual? What social and environmental demands/supports

increase or decrease risk? What level of supervision is needed to prevent serious harm?

(vi) What treatments and services might help the person? What is the most appropriate housing

situation? Can any needs can be met with any less restrictive alternatives to guardianship?

(vii). Can the individual attend the hearing? If so, what accommodations should be considered to

maximize the individual's participation?

8. Record the results of your evaluation on the enclosed form.

9. Indicate your professional licensure and professional expertise.

10. Note that a court-ordered clinical evaluation for guardianship is a statement signed under the

penalties of perjury.

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Model Clinical Evaluation Report

State of

County of

In the Matter of:

In the XXX Court of Justice

XXX Division

File No.

Definition of Incapacity in the State of ___:

See 􀀝 for instructions.

Note, text boxes appear in online form and will expand to size of text.

1. PHYSICAL AND MENTAL CONDITIONS

A. List Physical Diagnoses:

Overall Physical Health: Excellent Good Fair Poor

B. List Mental (DSM) Diagnoses:

Overall Mental Health: Excellent Good Fair Poor

Overall Mental Health will: Improve Be stable Decline Uncertain

If improvement is possible, the individual should be re-evaluated in _________ weeks.

Focusing on the mental diagnose(s) most impacting functioning, describe relevant history:

C. List all Medications:

Name Dosage/Schedule

These medications may impair mental functioning: Yes No Uncertain

D. Reversible Causes. Have temporary or reversible causes of mental impairment been

evaluated and treated? Yes No Uncertain

Explain:

E. Mitigating Factors. Are there mitigating factors (e.g., hearing, vision or speech impairment,

bereavement, etc.) that cause the person to appear incapacitated and could improve with time, treatment,

or assistive devices?

Yes No Uncertain

Explain:

THIS SECTION

TO BE COMPLETED BY THE COURT

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2. COGNITIVE AND EMOTIONAL FUNCTIONING Describe below or in Attachment the individual's strengths

and weaknesses.

A. Alertness/Level of Consciousness

Overall Impairment: None Mild Moderate Severe Non Responsive

Describe:

B. Memory and Cognitive Functioning

Overall Impairment: None Mild Moderate Severe

Describe below or in Attachment

C. Emotional and Psychiatric Functioning

Overall Impairment: None Mild Moderate Severe

Describe below or in Attachment

D. Fluctuation. Symptoms vary in frequency, severity, or duration: Yes No Uncertain

3. EVERYDAY FUNCTIONING. Describe below or in Attachment the individual's strengths and weaknesses.

A. Activities of Daily Living (ADL'S)

Ability to Care for Self (bathing, grooming, dressing, walking, toileting, etc.)

Level of Function: Independent Needs Support Needs Assistance Total Care

Describe:

B. Instrumental Activities of Daily Living (IADL'S)

Financial Decision-Making (bills, donations, investments, real estate, wills, protect assets, resist fraud, etc.)

Level of Function: Independent Needs Support Needs Assistance Total Care

Describe:

Medical Decision-Making (express a choice and understand, appreciate, reason about health info, etc.)

Level of Function: Independent Needs Support Needs Assistance Total Care

Describe:

Care of Home and Functioning in Community (manage home, health, telephone, mail, drive, leisure, etc.)

Level of Function: Independent Needs Support Needs Assistance Total Care

Describe:

Other Relevant Civil, Legal, or Safety Matters (sign documents, vote, retain legal counsel, etc.)

Level of Function: Independent Needs Support Needs Assistance Total Care

Describe:

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4. VALUES AND PREFERENCES. Describe below or in Attachment relevant values, preferences, and

patterns. Note whether the person accepts/opposes guardianship, goals for where/how life is lived, religious

or cultural considerations.

5. RISK OF HARM AND LEVEL OF SUPERVISION NEEDED

A. Nature of Risks. Describe the significant risks facing this person, and note whether these risks are due to

this person's condition and/or due to another person harming or exploiting him or her.

B. Social Factors. Describe the social factors (persons, supports, environment) that decrease the risk or

that increase the risk.

C. How severe is risk of harm to self or others: Mild Moderate Severe

D. How likely is it Almost Certain Probable Possible Unlikely

E. Level of Supervision Needed. In your clinical opinion:

Locked facility 24-hr supervision Some supervision No supervision

Needs could be met by: Limited Guardianship Less Restrictive Alternative

If checked, Explain:

6. TREATMENTS AND HOUSING. The individual would benefit from:

Education, training, or rehabilitation Yes No Uncertain

Mental health treatment Yes No Uncertain

Occupational, physical, or other therapy Yes No Uncertain

Home and/or social services Yes No Uncertain

Assistive devices or accommodations Yes No Uncertain

Medical treatment, operation or procedure Yes No Uncertain

Other: ____________________________ Yes No Uncertain

Describe any specific recommendations:

7. ATTENDANCE AT HEARING

The individual can attend the hearing Yes No Uncertain

If no, what are the supporting facts:

If yes, how much will the person understand and what accommodations are necessary to facilitate

participation:

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8. CERTIFICATIONS

I am a Physician Psychologist Other __________ licensed to practice in the state of __________

Office Address:

Office Phone:

This form was completed based on:

an examination for the purpose of capacity assessment

my general clinical knowledge of this patient

Prior to the examination, I informed the patient that communications would not be privileged:

Yes

No

Date of this examination or the date you last saw the patient:

Time spent in examination:

Other sources of information for this examination:

Review of medical record

Discussion with health care professionals involved in the individual's care

Discussion with family or friends

Other

List any tests which bear upon the issue of incapacity and date of tests:

I hereby certify that this report is complete and accurate to the best of my information and belief. I further testify that I am

qualified to testify regarding the specific functional capacities addressed in this report, and I am prepared to present a

statement of my qualifications to the Court by written affidavit or personal appearance if directed to do so.

SIGNATURE of CLINICIAN DATE

Print name License type, number, and date

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Supplemental Attachment/Links for Clinical Evaluation Report

These rating categories MAY be used in more complex cases when more detail

is DESIRED by the clinician or court.

Cognitive Functioning

1. Sensory Acuity (detection of visual, auditory, tactile stimuli)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

2. Motor Activity and Skills (active, agitated, slowed; gross and fine motor skills)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

3. Attention (attend to a stimulus; concentrate on a stimulus over brief time periods)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

4. Working memory (attend to verbal or visual material over short time periods; hold > 2 ideas in mind)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

5. Short term/recent memory and Learning (ability to encode, store, and retrieve information)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

6. Long term memory (remember information from the past)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

7. Understanding ("receptive language"; comprehend written, spoken, or visual information)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

8. Communication ("expressive language"; express self in words, writing, signs; indicate choices)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

9. Arithmetic (understand basic quantities; make simple calculations)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

10. Verbal Reasoning (compare two choices and to reason logically about outcomes)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

11. Visual-Spatial and Visuo-Constructional Reasoning (visual-spatial perception, visual problem solving)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

12. Executive Functioning (plan for the future, demonstrate judgment, inhibit inappropriate responses)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Emotional and Psychiatric Functioning

1. Disorganized Thinking (rambling thoughts, nonsensical, incoherent thinking)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

2. Hallucinations (seeing, hearing, smelling things that are not there)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

3. Delusions (extreme suspiciousness; believing things that are not true against reason or evidence)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

4. Anxiety (uncontrollable worry, fear, thoughts, or behaviors)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

5. Mania (very high mood, disinhibition, sleeplessness, high energy)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

6. Depressed Mood (sad or irritable mood)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

7. Insight (ability to acknowledge illness and accept help)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

8. Impulsivity (acting without considering the consequences of behavior)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

9. Noncompliance (refuses to accept help)

Level of impairment: None Mild Moderate Severe Not eval.

Describe:

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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1. Independent

2. Needs Support

3. Needs Assistance

4. Total Care

Everyday Functioning

Care of Self (Activities of Daily Living (ADL's)) and related activities

Maintain adequate hygiene, including bathing, dressing, toileting, dental

Prepare meals and eat for adequate nutrition

Identify abuse or neglect and protect self from harm

Other:

Financial (If appropriate note dollar limits)

Protect and spend small amounts of cash

Manage and use checks

Give gifts and donations

Make or modify will

Buy or sell real property

Deposit, withdraw, dispose, invest monetary assets

Establish and use credit

Pay, settle, prosecute, or contest any claim

Enter into a contract, financial commitment, or lease arrangement

Continue or participate in the operation of a business

Employ persons to advise or assist him/her

Resist exploitation, coercion, undue influence

Other:

Medical

Give/ Withhold medical consent

Admit self to health facility

Choose and direct caregivers

Make or change an advance directive

Manage medications

Contact help if ill or in medical emergency

Other:

Home and Community Life

Choose/establish abode

Maintain reasonably safe and clean shelter

Be left alone without danger

Drive or use public transportation

Make and communicate choices about roommates

Initiate and follow a schedule of daily and leisure activities

Travel

Establish and maintain personal relationships with friends, relatives, co-workers

Determine his or her degree of participation in religious activities

Use telephone

Use mail

Avoid environmental dangers such as stove, poisons, and obtain emergency help

Other:

Civil or Legal

Retain legal counsel

Vote

Make decisions about legal documents

Other:

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Values

1. Values about guardianship

Does the person want a guardian?

If yes, who does the person want to be guardian?

2. Preferences for how decisions are made

Does the individual prefer that decisions be made alone or with others?

3. Preferences for habitation

Where does the person want to live?

What is important in a home environment?

4. Goals and Quality of Life

What makes life good or meaningful for an individual?

What have been the individual's most valued relationships and activities?

5. Concerns, Values, Religious Views

What over-arching concerns drive decisions—e.g., concern for the well-being of family, concern for preserving

finances, worries about pain, concern for maintaining privacy, desire to be near family, living as long as

possible, etc.?

Are there important religious beliefs or cultural traditions?

What are the individual's strong likes, dislikes, hopes, and fears?

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings

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Model Order for Guardianship of Person and Estate1

State of ______________

County of ____________

In the XXX Court of Justice

XXX Division

File No. _____________

In the Matter of:

I. Order on Petition

For Adjudication of Incapacity

And Order Appointing Guardian

This is matter is before the court on a petition for an adjudication of incapacity and appointment of a guardian

for the individual. The court has read the petition and held a hearing to determine whether the court should

enter the order requested in the petition.

THE COURT FINDS:

1. JURISDICTION, VENUE, AND NOTICE.

A. This court has jurisdiction of the subject matter and of the person of the individual.

B. This court is a proper venue.

C. Notice was properly served.

2. MEDICAL CONDITION AND CAPACITY. Upon presentation of (cite standard of evidence) evidence, the

above named individual by reason of the following medical conditions:

__ Is not incapacitated. The petition is dismissed.

__ Is an incapacitated person (cite statutory standard for incapacity).

__ Is a partially incapacitated person.

Care of Self

Retained Capacities:

Financial Decisions

Retained Capacities:

Health Care Decisions

Retained Capacities:

Living in the Home and Community

Retained Capacities:

Other Civil Matters

Retained Capacities:

3. VALUES AND PREFERENCES. Relevant values, preferences, and patterns of past choices of the

individual considered:

A reasonable effort was made to question the individual and he/she indicated:

[ ] no preference as to who should be appointed guardian.

[ ] that he/she preferred _________________ to serve as guardian.

1 This is a model form for guardianship of person and estate. For a model form for guardianship of estate, often called

conservatorship, the form could include the same elements, but focus only on financial capacities and related actions of the

conservator.

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IT IS ORDERED:

4. APPOINTMENT. The court appoints (name of guardian) of (address) as guardian and directs issuance of

letters of guardianship.

5. LIMITATIONS AND POWERS. The guardianship is

__ Unlimited (Plenary).

__ Limited. The above named individual shall retain the following legal rights and privileges (cite all rights

retained or removed).

Further,

__ Statutory Restrictions. The guardian does not have the authority to (cite any statutory or court-ordered

restrictions, such as admission to mental health facility, modification of DNR, etc.):

__ Special Powers Granted. The guardian has the authority to (cite any powers being granted that require

special court authority, such as admission to mental health facility, modification of DNR, etc.):

6. BOND

__ The guardian must file a bond in the amount of $ with the Clerk of the Court, Probate Register, before

issuance of the letters.

__ Bond is not required and is waived.

7. INVENTORY AND PLAN. The guardian is instructed to

__ Inventory and Appraisement. Within 90 calendar days, and with each required annual report, the

guardian must prepare and file with the Clerk of the Court a detailed inventory of the individual's

assets.

__ Plan. Within 90 calendar days, and with each required annual report, the guardian must prepare and file

with the Clerk of the Court a plan detailing a plan of care for the individual and for the estate. The

guardian shall consider the individual's values and preferences in making decisions.

__ Report. Annually the guardian must prepare and file with the Clerk of the Court a report.

8. CHANGE OF ADDRESS. The guardian shall immediately notify in writing to the court of any change in the

address of him or herself or of the incapacitated person.

9. REVIEW. In addition to the annual review, it is further ordered, setting this matter for internal review within

(no of days) ___ to determine

__ compliance with inventory and plan.

__ possible change in level of capacity.

10. COSTS. Pursuant to § ___, costs are: ___ waived ___ taxed to: ___ petitioner ___ individual

11. This order is the least restrictive alternative consistent with the court's finding, is necessitated by the

individual's limitations and demonstrated need, and is designed to encourage the development of maximum

self-reliance and independence.

Date: Signature:

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Model Plan for Guardian of Person and Estate2

State of ______________

County of ____________

In the XXX Court of Justice

XXX Division

File No. _____________

In the Matter of:

I. Order on Petition

For Adjudication of Incapacity

And Order Appointing Guardian

Health Care Plan

1. Provide name of the person's physician:

2. Provide name(s) of other key healthcare professionals:

3. What instructions (such as advance directives) has this person provided about medical treatment?

4. Describe medical services to be provided (e.g., primary care visits, specialists, equipment, new medications,

dental, etc.)

Personal Care Plan

1. Where is the person residing now and what kind of facility is it? (For example, is it a private residence,

assisted living, or nursing home, etc.?)

2. Do you anticipate needing to change the person's residence? If so, when and why?

3. Describe social services and activities to be provided (e.g., home care workers, religious services, visits with

friends/family, education/recreation).

2 This is a model form for a plan of guardianship of person and estate. For a plan for guardianship of estate, often called

conservatorship, the form could focus only on financial capacities and related actions of the conservator.

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Financial Care Plan

1. Describe the person's estimated monthly income, monthly expenditures, and estimate total assets (tangible

and monetary):

2. Describe how the person's financial needs will be met:

3. In view of the needs of the protected person at this time, what assets will need to be sold in the coming year?

4. Are there debts owed to the person to be pursued? If so, how do you intend to pursue those claims (note

whether litigation is necessary)?

5. Are there bills, claims, or debts by the person to another unpaid at this time? If so, how do you intend to

discharge those obligations?

6. Describe how funds for the support, care, and welfare of others entitled to be supported by the protected

person will be administered: (If not applicable, so state).

7. Describe the estate plan, if any, and how you intend to preserve it.

Signature of Guardian Date

Address and Telephone of Guardian

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Model Annual Report for Guardian of Person and Estate3

State of ______________

County of ____________

In the XXX Court of Justice

XXX Division

File No. _____________

In the Matter of:

I. Order on Petition

For Adjudication of Incapacity

And Order Appointing Guardian

1. PERIOD OF REPORT

This is a full and true statement of account in the above matter, covering the period of

_____ day of _____ (month), _____ (year) to _____ day of _____ (month), _____ (year).

2. CONTACT

Approximate number of times the guardian had contact with the person during the reporting period:

Nature of those contacts (phone, in person, other):

Date last seen by the guardian:

3. ADDRESS OF INCAPACITATED PERSON

Street

City, State, Zip Code

Telephone

These living arrangements are best described as:

[ ] Own apartment or home

[ ] Private home or apartment of

[ ] guardian

[ ] relative, whose name and relationship is:

[ ] non-relative, whose name is:

OR

[ ] Foster, group, or boarding home

[ ] Nursing home

[ ] Assisted living

[ ] A medical facility or state institution

The name of the home, facility, or institution:

The name of an individual at the home, facility, or institution who has knowledge and is authorized to give

information to the court:

The individual has been at the present residences since:

If moved within the past year, state the changes and reason for the change:

I rate the living situation as: [ ] excellent [ ] average [ ] below average (explain: )

I believe the adult is: [ ] content [ ] unhappy with the living situation

I recommend a more suitable living arrangement as follows:

3 This is a model form for a report of guardianship of person and estate. For a model form for report on guardianship of

estate, often called conservatorship, the form could focus only on financial capacities and related actions of the conservator.

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4. HEALTH

The individual's physical conditions are:

The individual's mental conditions are:

Overall health [ ] excellent [ ] good [ ] fair [ ] poor

During the past year, overall health has [ ] improved [ ] worsened [ ] remained the same

During the past year the individual has been diagnosed with a terminal illness [ ] yes [ ] no

5. FUNCTIONING

The individual's cognitive and emotional functioning are:

The individual's everyday functioning (ability to care for self, make financial and medical decisions, live

independently) is:

During the past year, overall functioning has [ ] improved [ ] worsened [ ] remained the same

6. TREATMENTS

During the past year, the individual has seen a doctor:

Date Doctor Name Reason Findings

During the past year, the individual has received other treatments (list any education, training, therapy, assistive

devices, recreational and social activities, or other treatments received):

7. FINANCIAL ACCOUNTING

Are you in control of any tangible property of the incapacitated person? [ ] yes [ ] no

If yes, describe

Are you in control of any other assets for the incapacitated person? [ ] yes [ ] no

If yes, describe

Have you paid to others any fees for the care of the individual or property? [ ] yes [ ] no

If yes, describe and attach accounting and receipts

Have any assets or items been transferred to you during the reporting time? [ ] yes [ ] no

If yes, describe and attach accounting and receipts.

Have any fees been paid to you in your role as guardian? [ ] yes [ ] no

If yes, describe and attach accounting and receipts.

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SUMMARY OF ASSETS AND EXPENDITURES

Beginning fair market value of non-cash assets

$

Beginning balance of cash (savings, checking, stocks, bonds, etc.) assets

+ $

Plus money received (pension, disability, interest, etc.) from any source on

behalf of the person

+ $

TOTAL

$

Less total fees to other for care of person or estate

- $

Less assets transferred to guardian

- $

Less total fees paid to guardian - $

TOTAL CURRENT VALUE OF ESTATE

$

The Guardian (or Conservator) represents that this account contains a correct statement of all receipts and

disbursements and that its contents are true to the best knowledge and belief.

I have on file a surety bond approved by the court [ ] yes [ ] no

If yes, the penal sum of the bond is $ with the company as surety.

9. RECOMMENDATIONS

The guardianship should be continued [ ] yes [ ] no

Because:

The guardianship should be modified as follows:

Other recommendations:

Signature of Guardian Date

Address and Telephone of Guardian

Sworn to me

Signature of Notary Date

My Commission expires

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Glossary4

"Activities of Daily Living" means the basic tasks of everyday life, such as eating, bathing, dressing,

toileting, and transferring.

"Accommodations" means adjustments or modifications to enable people with disabilities to enjoy

equal opportunities.

"Acuity" means acuteness of perception. It may also refer to the immediate seriousness of an illness.

"Affect" refers to the expression of a person's feelings, tone, or mood. For example, a person may be

sad if their mood is depressed.

"Assistive Devices" means items or equipment that is used to increase, maintain, or improve functioning

of individuals with disabilities.

"Autonomy" means a person's ability to make independent choices.

"Clinical" means pertaining to or founded on observation and treatment of individuals, as distinguished

from theoretical or basic science.

"Clinician" refers to any healthcare professional.

"Cognitive" means relating to thinking and information processing in the brain.

"Conservator" means a person who is appointed by a court to manage the estate of a protected person.

The term includes a limited conservator.

"Court Investigator" means a person appointed by the court to investigate the merits of the

guardianship petition. In some states such a person may be referred to as a guardian ad litem.

"Dementia" means a medical condition characterized by a loss of memory and functioning.

"Domain," when used in cognitive assessment, refers to a category of brain functioning, often

associated with a specific region in the brain. For example a domain of cognitive assessment could be

memory after a time delay, which is localized to the temporal lobe of the brain.

"Guardian" means a person who has qualified as a guardian of an incapacitated person pursuant to

appointment by the court. The term includes a limited, emergency, and temporary substitute guardian,

but not a guardian ad litem.

"Guardian ad litem" means a person appointed by the court to represent and protect the interests of an

incapacitated person during a guardianship proceeding.

"Incapacitated person" means an individual who, for reasons other than being a minor, is unable to

receive and evaluate information or make or communicate decisions to such an extent that the individual

lacks the ability to meet essential requirements for physical health, safety, or self-care, even with

appropriate technological assistance.

4 This glossary is meant to define terms as used in this book, and is not meant to define terms more universally. The glossary

uses definitions from the UGPPA where available, and otherwise definitions are based on the consensus of the working

group. Definitions of common mental disorders appear in the fact sheet on medical conditions.

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"Instrumental Activities of Daily Living" means activities related to independent living, and include

preparing meals, managing money, shopping for groceries or personal items, performing light or heavy

housework, and using a telephone.

"Least Restrictive Alternative" means an intervention that causes the least disruption or change in a

person's circumstances and that maximizes the person's independence and freedom.

"Limited Guardianship" means a guardianship appointment in which the guardian is assigned only

those duties and powers that the incapacitated or partially incapacitated individual is incapable of

exercising, rather than the full authority that could be assigned by the court.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability

company, association, joint venture, government, governmental subdivision, agency, or instrumentality,

or any other legal or commercial entity.

"Plenary Guardianship" means a full guardianship of the person and property in which all duties and

powers concerning an individual under state law are assigned by the court to the guardian.

"Polypharmacy" means the unwanted duplication of drugs, which often results when patients go to

multiple physicians or pharmacies. Polypharmacy occurs when prescribed medications duplicate or

interact with each other.

"Prognosis" means the probable outcome of a disease.

"Psychopathology" refers to the manifestation of a mental disorder.

"Reality Testing" refers to the ability of a person to distinguish between the real in the external world

and their internal world. For example, a person who has delusional thoughts (e.g., false beliefs that a

person is trying to harm him or her) and cannot distinguish this from reality is said to have poor reality

testing.

"Respondent" means an individual for whom the appointment of a guardian or conservator or other

protective order is sought. In this book, we use the word "individual" when referring to the respondent.

"Transfer Trauma" means relocation stress and accompanying symptoms resulting from a transfer

from one environment to another—as from one community residence to another, from a community

residence to an institution or from one institution to another.

"Ward" means an individual for whom a guardian has been appointed. In this book, we use the word

"individual" or "person" when referring to the respondent.

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APPENDIX 2: FACT SHEETS

Available online

These materials are available online at

http://www.abanet.org/aging

http://www.apa.org/pi/aging

http://www.ncpj.org.

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Capacity

Presumption of Capacity

While legal definitions of capacity vary by jurisdiction and by circumstances in which the

question of capacity is raised, one stable cornerstone of the law has been the principle that all

adults are presumed competent until proven otherwise.22 Adults have the right—even when

frail, vulnerable, or eccentric—to make their own decisions and to govern their own affairs,

even if their decisions are unwise and their methods objectionable to the reasonable observer.

The burden rests on the party questioning the capacity of an individual to establish the lack of

capacity, and the nature and extent of harm resulting from the lack of capacity.

Capacity Is Task-Specific, Not Global

The definition of "diminished capacity" in everyday legal practice depends largely on the type

of transaction or decision under consideration.23 The law recognizes that capacity is not an

all-or-nothing phenomenon. One may lack the capacity to handle one's financial affairs, for

example, but still retain the capacity to make health care decisions or to vote in elections. The

application of limited guardianship is tied directly to this recognition of the task-specific

reality of capacity.

Capacity Can Fluctuate

Capacity status can fluctuate over time. Capacities that were initially lost (e.g., as a result of a

head injury, transient acute psychosis, severe depression that later remits) may be recovered

over time. Dementias such as Alzheimer's disease will result in fluctuating levels of capacity

through the early and mid-stages of the disease. Also, cognitive deficiencies that suggest

incapacity are often caused by treatable and reversible physical causes, such as

overmedication, toxic combinations of medications, poor diet, vitamin deficiencies, infectious

diseases, poor eyesight, or other conditions. By discovering and addressing medically treatable

conditions first, capacity issues may be rendered moot or at least decreased.

Capacity Is Situational

Appropriate capacity assessment never happens in a vacuum. It occurs in the context of the

resources and support available to the individual. The supports may be social, such as a

caregiver who can monitor the individual's medication regimen; legal, such as a trust or

durable power of attorney that enables appropriate management of one's affairs; technological,

such as an emergency help alert transmitter; or any other support.

Capacity Is Contextual

The contextual element of capacity goes a step beyond the question of resources available to

the individual and considers how the individuals interact with those resources and with their

social and physical environment. Issues of undue influence, exploitation, or threat can directly

affect the autonomy, functioning, and well being of the person with diminished capacity.

Likewise, a home environment that is familiar and comfortable for the individual may enhance

capacity, while a new and unfamiliar setting may undermine functional capacity.

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Clinical Professionals

A clinician is a general term for a healthcare professional who works with patients. A wide range of

clinicians may bring expertise to the capacity evaluation process. The information provided on this page

is meant to highlight some of the strengths that varied professionals may bring to the capacity

evaluation practice. It is not meant to define or limit the absolute, necessary, or full scope of practice for

these professionals, but rather to highlight some potential strengths each discipline may bring to the

capacity evaluation process.

Geriatricians, Geriatric Psychiatrists, or Geropsychologists, practitioners with specialized training in

aging, are experienced in considering the multiple medical, social, and psychological factors that

may impact an older adult's functioning. A geriatric assessment team is comprised of multiple

disciplines, each with advanced training in syndromes of aging.

Neurologists, M.D.'s with specialized training in brain function, may address how specific neurological

conditions (e.g., dementia) are affecting the individual and his/her capacity.

Neuropsychologists, psychologists with specialized training in cognitive testing, may address

relationships between neurological conditions, cognitive tests results, and an individual's

functional abilities.

Nurses have medical expertise and some, such as visiting nurses in Area Agencies on Aging, may have

in-depth information on how a person's medical condition is impacting functioning in the home.

Geriatric nurse practitioners are advanced practice nurses with additional credentials to assess

and treat the medical problems of aging.

Occupational Therapists are professionals with advanced degrees specializing in the assessment of an

individual's functioning on everyday tasks, such as eating, meal preparation, bill paying,

cleaning, and shopping.

Physicians, (primary care clinicians or internists) can provide a summary of the individual's major

medical conditions. In some cases, the physician may have provided care to the individual over

many years and can provide a historical perspective on the individual's functioning (although

this cannot be assumed).

Psychiatrists, M.D.'s with specialized training in mental health, may address how specific psychiatric

conditions (e.g., schizophrenia) and related emotional/mental systems may be affecting the

individual and his/her capacity. Geropsychiatrists receive additional training in problems of

aging; forensic psychiatrists receive additional training in mental health and the law.

Psychologists, clinicians with advanced training in behavioral health, may utilize standardized testing

and in-depth assessment, useful when the judge wants detailed information about areas of

cognitive or behavioral strengths or weaknesses. Geropsychologists receive additional training in

problems of aging; forensic psychologists receive additional training in mental health and the

law.

Social workers, are trained to consider the multiple determinants on an individual's social functioning,

and are often knowledgeable about a wide range of social and community services that may

assist the individual.

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Clinical Evaluation Report Instructions

Explanation of the Form

The model clinical evaluation form provides a framework for summarizing a clinical evaluation

for the purposes of guardianship.

This form was based on:

o The 1997 Uniform Guardianship and Protective Proceedings Act.

o Existing model forms in guardianship across the United States.

o Review of drafts by physicians, psychiatrists, psychologists, and social workers.

There were several challenges in developing this form:

o To be appropriate across the range of severity – e.g., from the person in a coma to the

person with mild impairment and mixed strength and weakness.

o To accommodate the wide variation in approaches to clinical assessment used by

different health care professionals.

As a result, this form:

o Uses legal language which may be atypical for some clinicians (e.g., "mental condition"

instead of "DSM diagnosis").

o Follows the "six pillar" format presented in the judge's book.

o Offers major headings of assessment, leaving subheadings to clinicians' discretion.

Note that:

o Additional information in complex cases can be provided in expandable text boxes or

attached to the form (using supplemental form pages if desired).

o Can be adapted and modified at will to clinical or jurisdictional needs.

General Provisions for Clinical Evaluation

A capacity evaluation is considered expert testimony, and should therefore meet standards of

admissibility as applied within the clinician's jurisdiction (referred to as "Daubert" standards in

some jurisdictions). As such, clinicians may wish to indicate the evidence for each decision

made or basis for the judgment made.

An effort should be made to obtain informed consent or assent to the evaluation. A warning of

the potential risks of participating in the evaluation should be provided, namely, that information

will not remain confidential. Note that under the Health Insurance Portability and Accountability

Act protected information can be provided to courts for guardianship proceedings. HIPAA

protects the privacy of health information, but it cannot be used as a barrier to providing required

information to a court. For information about HIPAA, see http://www.hhs.gov/ocr/hipaa

The number of examination sessions required for the evaluation will vary based on the

complexity of the evaluation. For complex cases, examination on more than one occasion is

preferable to allow for assessment of potential variability in functioning from day to day.

For situations where a clinical team is not required, input from multiple disciplines is still

encouraged (e.g., occupational therapist assessment, social service evaluation). If used, those

individual's names should be listed on the signature page and associated reports may be attached.

Note that the ultimate decision about the client's capacities is a legal judgment.

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1. Mental and Physical Condition

Complete the categories noted. Information on prognosis and history is often left out clinical

evaluations for guardianship purposes, but is key for the judge in determining any time limitations on

orders. Also note that delirium can be confused with dementia, therefore describe whether potentially

reversible causes of cognitive impairment have been considered.

2. Cognitive Limitations

Describe the individual's level of alertness or arousal, cognitive functioning, and emotional or

psychiatric functioning.

Cognitive skills can be assessed with screening tools or more in-depth neuropsychological

assessment.

Supplemental pages may be used to provide more information on specific cognitive skills or

affective symptoms. For more information on cognitive assessment, click here.

3. Functional Limitations

To support limited orders when appropriate, provide detailed information about the individual's

functional abilities. Emphasize strengths and retained abilities—even if small in scope—that the

judge may reserve as a right to the individual.

The specific functional abilities should be assessed through direct observation, reports of

caregivers (professional or family), direct functional assessment, and/or direct interviewing of

testing of specific abilities.

In describing decision-making abilities within functional domains, consider whether the

individual can: express a choice regarding a given situation and do so consistently; re-state basic

information about the decision, risks and benefits, and the effects of these on every day life;

justify decisions based on risks and benefits; reason consistently with his or her lifestyle and

values. Remember eccentric or risky choices in and of themselves are not grounds for

guardianship.

Supplemental pages may be used to provide more information on specific functional abilities.

For more information on functional assessment, click here.

4. Values and Preferences

Assessments that focus purely on the technical aspects of decision making miss the larger

context of individual values.

Views on what defines quality of life, how decisions are made, and values most crucial in

weighing options, vary widely between individuals. A person's age, cohort, and ethnicity may

strongly impact preferences, and these factors and related values often differ from those of

evaluators, investigators, and judges.

Interview the individual, and if appropriate, others who have known the individual over time, to

determine the values and preferences regarding the matters under consideration.

Evaluating the consistency of a choice with such long-held values and perspectives is one

important indicator of capacity. In addition, such information is useful to the judge and guardian

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in planning for the individual's care under guardianship.

Supplemental pages on values may be used to provide categories of values questions, and more

detailed lists are also available. For more information on values assessment, click here.

5. Risk and Level of Supervision

The clinician should provide a professional opinion about the least restrictive level of

supervision needed to address the impairments noted, given the person's current circumstances.

A clinical assessment is incomplete if it does not match an individual's cognitive and functional

strengths and weaknesses to the person's social situation and environment. This contextual or

interactive component of a clinical assessment balances the diagnostic, cognitive, and functional

findings with the resources available to the individual, risks of the specific situation, and the

person's values and preferences.

The outcome of a clinical evaluation of capacity is, thus, never merely a diagnostic statement or

report of test results, but an integration of these findings with the particulars of the client's life

and situation, and the level of risk given those factors.

6. Treatments

Describe any resources, treatments, or accommodations that will enhance the individual's

functioning.

Sometimes a treatment may abrogate the need for a guardian as capacity is restored. If so,

indicate when capacity should be re-evaluated.

Other times, a treatment may maximize the individual's functioning and well-being while under

guardianship and, thus, needs to be considered in the ongoing care plan.

In many states, a proposed guardian is required to state whether guardianship will be used for

nursing home placement, thus, a clinical opinion about the appropriate living situation is useful.

7. Hearing

Individuals subject to guardianship petitions may be required or encouraged to attend the hearing

under state law. Since the individual stands to lose many critical rights, efforts should be made to

have the individual attend the hearing, if the individual wants to do so, and his or her mental

status permits useful participation.

Judges often desire a clinical opinion on whether the individual can attend the hearing, and if

they can, how to best accommodate the individual's needs.

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Cognition and Cognitive Testing5

Cognitive Screening

Cognitive screening tests are useful for giving a general level of overall cognitive impairment. They may

be used as an overall screening to determine whether additional testing is needed. They may also be used

for individuals with more severe levels of impairment who cannot complete other tests.

Acronym Screening Test Name Screening Test Description

BIMC Blessed Information

Memory Concentration

Test

33-point scale with subtests of orientation, personal

information, current events, recall, and concentration. There is

a short version with six items.

Cognistat The Neurobehavioral

Cognitive Status

Examination

This screening test examines language, memory, arithmetic,

attention, judgment, and reasoning.

MMSE Mini Mental State

Examination

30-point screening instrument that assesses orientation,

immediate registration of three words, attention and

calculation, short-term recall of three words, language, and

visual construction.

MSQ Mental Status

Questionnaire

10-item, 10-point scale assessing orientation to place, time,

person, and current events. It has low to modest sensitivity for

detecting neurological illness.

7MS The Seven Minute

Screen

This screening instrument combines four tests, each with

separate scores of various ranges: recall, verbal fluency,

orientation, and clock drawing.

SPMSQ Short Portable Mental

Status Questionnaire

10-point scale scored as a sum of errors on subtests of

orientation, location, personal information, current events, and

counting backwards. High scores (8-10) equals severe

impairment. Race and age corrections to scores are available.

Neuropsychological Testing

A neuropsychological evaluation typically assesses various areas called "domains" with neuroanatomic

correlates (see table below). Some of these areas are assessed through observation of the client's

presentation and communication during a clinical interview. Most are assessed through tests that have

standard instructions, standard scoring, and are referenced to adults of similar age and education to

provide performance range that is "norm-referenced."

5 This section provides an overview of cognitive functioning and neuropsychological assessment, and is based on

information available in key clinical references (see end of the book), and the consensus of the working group.

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There are a number of neuropsychological "batteries" that assess, either briefly or in great depth, a wide

range of domains using various "subtests." Examples of neuropsychological batteries are:

Halstead-Reitan Neuropsychological Battery

Kaufman Short Neuropsychological Assessment

Luria-Nebraska Neuropsychological Battery

Microcog

Repeatable Battery for the Assessment of Neuropsychological Status

Wechsler Adult Intelligence Scale—III

Examples of specific neuropsychological tests are provided in the table.

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Common Neuropsychological Domains

Domain Description Relevance to Capacity Methods of Assessment

Appearance Grooming, weight, interaction

with others

Appearance, orientation, and

interaction indicate general

mental condition and may reveal

problems with judgment

Observation

Sensory Acuity Ability to hear, see, smell,

touch

Sensory deficits impact

functioning in the environment.

Sensory deficits may make

performance on

neuropsychological tests worse

and, therefore, should be

considered in interpreting scores

Observation

Structured hearing tests

Structured vision tests

Motor Activity Motor activity (active,

agitated, slowed)

Motor skills (gross and fine)

detection of visual, auditory,

tactile stimuli

Motor deficits impact

functioning in the environment

Motor deficits may make

performance on

neuropsychological tests worse

and therefore should be

considered in interpreting scores

Observation

Finger Tapping

Grooved Pegboard

Finger Oscillation Test

Tactual Performance Test

Attention Attend to a stimulus

Concentrate on a stimulus

over brief time periods

Basic function necessary for

processing information

Digit Span Forward and Backward

Working Memory (from the WMS-III)

Paced Auditory Serial Attention Test (PASAT)

Visual Search and Attention Test (VSAT)

Visual Attention (from the Dementia Rating Scale

(DRS))

Trails A of the Trail Making Test

Continuous Performance Test

Memory Working memory: attend to

verbal or visual material over

short time periods; hold two

ideas in mind

Short-term/recent memory

Some memory is important for

all decision making. Although

memory aids can be used,

individuals must be able to hold

ideas in mind ("working

Memory Assessment Batteries (from the WMS-III or

the Memory Assessment Scales (MAS))

Auditory Verbal Learning Test

Recognition (from the DRS)

Fuld Object Memory Evaluation

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and learning: ability to

encode, store, and retrieve

information

Long-term memory:

remember information from

the past

memory")

Memory is especially important

for functioning at home and

remembering to perform critical

activities (like take medications)

and be safe (like turn off stove)

California Verbal Learning Test (CVLT)

Hopkins Verbal Learning Test (HVLT)

Rey Auditory Verbal Learning Test

Communication

(also called

expressive

language)

Express self in words or

writing

State choices

Basic function necessary to

convey choices in decision

making

Communication during testing

Controlled Oral Word Association Test (commonly

called the verbal fluency)

Boston Diagnostic Aphasia Examination (BDAE)

Multilingual Aphasia Examination

Boston Naming Test (BNT)

Understanding

(also called

receptive

language)

Understand written, spoken,

or visual information

Important when making

decisions, especially regarding

new problems or new treatments

Critical to understanding the

options

Understanding during testing

Boston Diagnostic Aphasia Examination (BDAE)

Multilingual Aphasia Examination

Arithmetic or

Mathematical

skills

Understand basic quantities

Make simple calculations

Important for financial decision

making

Important for day to day

financial tasks

Arithmetic subtest of WAIS-III

Reasoning Compare two choices

Reason logically about

outcomes

Critical in almost all decision

making

Verbal subtests from the WAIS-III, such as

Similarities, Comprehension

Proverbs

Visual-Spatial

and Visuo-

Constructional

Reasoning

Visual-spatial perception

Visual problem solving

Important for functioning in the

home and community

Essential for driving

Performance subtests from WAIS-III, such as Block

Design, Object Assembly, Matrix Reasoning

Hooper Visual Organization Test

Visual Form Discrimination Test

Clock Drawing

Rey-Osterrieth Complex Figure

Line Bisection

Bender Visual Motor Gestalt Test

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Tactual Performance Test

Executive

Functioning

Plan for the future

Demonstrate judgment

Inhibit inappropriate

responses

Essential for most decision

making

Important to avoid undue

influence

Similarities (from the WAIS-III)

Trails B of the Trail Making Test (TMT)

Wisconsin Card Sorting Test

Stroop Color Word Test

Delis-Kaplan Executive Function System (DKEFS)

Mazes

Tower of London

Insight Acknowledge deficits

Acknowledge the potential

benefit of intervention

Accept help

Often considered a part of

"executive function"

Critical to the use of less

restrictive alternatives

An individual needs to be able

to recognize they have a deficit

and be willing to accept help in

order to use home services

Interview

Comparing observed deficits with the individual's

reports of deficits

Informant reports

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Everyday Functioning and Functional Assessment

What Is "Function"? How do Judges and Clinicians Think Differently?

A comprehensive assessment of capacity should include a "functional assessment." Of note: when the

law refers to "function" if often means someone's thinking and decision-making, as well as everyday

behavior where the person lives. When clinicians refer to "function" they usually mean only the

everyday behavior, where as thinking and decision making is assessed separately as "cognition."

How Do Clinicians Divide Everyday Functioning? ADLs and IADLs

Clinicians often divide everyday function into the "Activities of Daily Living" (ADL) and the

"Instrumental Activities of Daily Living" (IADL). There is fairly good agreement on the ADLs as

comprising dressing, eating, toileting, transferring or moving from one sitting position to another,

walking or mobility, and bathing. There is less agreement on what are the main categories of IADLs and

how to divide them. For the purpose of this book, we have described several broad categories commonly

encountered in guardianship proceedings, namely financial, medical, and home/community.

How Is Functioning Assessed by Clinicians? Informal and Formal Assessment

Functioning can be assessed through informal means, such as observing the individual, and asking the

individual, family, and staff questions, or through formal testing, such as that performed by an

occupational therapist. Nurses, social workers, and psychologists are often prepared to assess everyday

functioning.

What Tests Are Used to Assess Everyday Functioning? ADL Rating Scales and Capacity Tools

There are two main ways that functioning is formally assessed. One way is through ADL and IADL

rating scales. These are often used by nurses and social workers and are usually brief check lists for

categorizing everyday functioning. Similar and more sophisticated tools are used by occupational

therapists who tend to directly assess and observe ADL/IADL performance in their evaluations. ADL

and IADL rating scales have been available for more than 30 years.

Names of some ADL/IADL Rating Scales include:

Adult Functional Adaptive Behavior Scale (AFABS)

Barthel Index

Direct Assessment of Functional Status (DAFS)

Functional Independence Measure (FIM)

Index of ADL ("Katz")

Kenny Self Care Evaluation

Multidimensional Functional Assessment Questionnaire (MFAQ)

Philadelphia Geriatric Center Multilevel Assessment Inventory (MAI)

Physical Self-Maintenance Scale

Information about these scales is easily found online and in various textbooks.

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Another approach to functional assessment is instruments designed specifically to assess legal

capacities. These are formal testing instruments designed specifically to assess capacity in terms of legal

definitions. Such tools have only recently been developed, since the 1990s, and are summarized in the

following table. They are called "tools" because it is not possible to have an exact "test" of capacity.

Capacity is a professional, clinical, and, ultimately, legal judgment. Since some of these tests are newly

developed, not all meet the "Daubert standard" of scientific admissibility. Refer to the articles and test

manuals for specific information on test properties.

Acronym Capacity Tool Name Description

ACE24 Aid to Capacity

Evaluation

Semi-structured interview for capacity to consent to treatment;

Developed in Canada.

CAT25 Capacity Assessment

Tool

Structured interview to assess capacity to choose between two

treatment options.

CCTI26 Capacity to Consent to

Treatment Interview

Two clinical vignettes are used to assess capacity to consent to

medical treatment in terms legal standards of understanding,

appreciation, reasoning, and expression of choice.

CIS27 Competency Interview

Schedule

A 15-item interview for capacity to consent to electroconvulsive-

therapy (ECT).

DAM28 Decision Assessment

Measure

Assesses capacity to consent to medical treatment through a

vignette regarding blood draw. Developed in England.

DIG29 Decision-Making

Instrument for

Guardianship

Eight vignettes evaluate capacity to make decisions about

hygiene, nutrition, health care, residence, property acquisition,

routine money management in property acquisition, major

expenses in property acquisition, and property disposition.

FCI30 Financial Capacity

Instrument

Structured instrument assesses six domains of financial

activity: basic monetary skills, financial conceptual knowledge,

cash transactions, checkbook management, bank statement

management, and financial judgment.

HCAI31 Hopemont Capacity

Assessment Interview

Semi structured interview for medical and financial decisions.

Uses two vignettes for each.

ILS32 Independent Living

Scales

Structured instrument with 70 items in five subscales:

memory/orientation, managing money, managing home and

transportation, health and safety, and social adjustment. Can be

summed to reflect the capacity to function independently.

MacCAT

-T33

MacArthur Competence

Assessment Tool -

Treatment

Semi-structured interview to assess medical decision making in

terms of four legal standards.

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Guardianship Monitoring Practices

Ten Steps to Enhance Guardianship Monitoring34

1. A requirement for the guardian to report on the individual's status;

2. A requirement for a written guardianship plan;

3. Court actions to facilitate the guardian's reporting and accounting (such as stating the responsibility

to report in the order; providing the guardian with reporting forms; making available samples of

prepared reports; providing clear instructions regarding the guardian's duty to report);

4. Court enforcement of required statutory reporting requirements (by establishing computer tickler

systems on report due dates; notifying the guardian promptly when a report is overdue; entering a

show cause order if the guardian has not responded promptly to the notice to file; imposing financial

penalties for late filings; sending the bar grievance committee a copy of delinquency notices sent to

any guardian who is an attorney);

5. Procedures for review of reports and accountings (designating someone to review reports and audit

accountings; establishing criteria for review);

6. Procedures for investigation of complaints or to verify information in reports and accounts using

court investigators or trained volunteers to assess the individual's condition, environment, and

services; sending reports and accounting to interested third parties to verify or object;

7. Periodic hearings on the need to continue the guardianship;

8. Sufficient revenue for monitoring (through state appropriations, county or municipal funds, filing

fees);

9. Clear ethical guidelines for attorneys representing the petitioner, guardian and individual; and

10. Encouragement efforts of other community groups and agencies that monitor the individual's wellbeing

(adult protective services, long-term care ombudsman, Area Agencies on Aging, protection

and advocacy agencies).

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Promising Practices for Guardianship Monitoring

Source: "Best Practices in Guardianship Monitoring: Working List from May 2001 NCPJ Meeting." For

standards on guardianship monitoring, see National Probate Court Standards, §§3.3.13 through 3.3.18,

and for conservatorship (guardianship of the property) monitoring, see §§3.4.13 through 3.4.19.

A. Reporting

Re-examine form for guardian to report on individual's status and condition. Make it simple,

yet comprehensive. Review or create a separate form for guardian plan for future care of

individual, due at time of appointment or shortly after, and to be updated regularly with

status report. The first form would be a status report and the second would be a general plan

for the conduct of the guardianship/conservatorship.

Re-examine form for inventory and annual accounts. Review or create a separate form for a

financial plan to meet the respondent's needs and allocate resources. The financial

information could be incorporated in the general plan.

Require that original bank statements and brokerage account statements be filed with each

accounting. Alternatively, require that the nature of each account and the amount in each

account be listed on letterhead stationary from the financial institution.

Establish an effective database of guardianship cases.

Develop a computerized tickler system to show due dates of reports and accounts.

Consider using e-mail to contact guardians who have outstanding reports or accounts, as a

supplement to written notice.

Require guardians to inform the court of two points of contact in case the guardian moves or

changes the location of the incapacitated person. This could be part of the petition for

guardianship.

Have a process for sending out inquiries regarding late reports and accounts, before issuing

show cause orders.

Consider routinely fully bonding for liquid assets and annual income. Waive requirement

sparingly. Do not hesitate to "call the bond in" when the guardian has been incompetent with

the individual's assets or has taken them.

If no response to inquiries about late reports, issue subpoenas; or alternatively issue

automatic show cause orders.

Develop a form that guardians can use to inform the court of the death of individual.

Provide training to guardians on reporting and accounting requirements, and offer samples of

prepared reports.

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Mail statutory reporting form to guardians shortly before due date, as a reminder.

Include language in initial order concerning guardian's responsibility to report.

B. Review and Investigation

Designate qualified staff to review reports and accounts.

Appoint attorneys to investigate questionable situations.

Use volunteers to review reports and investigate condition of individuals, or to

supplement court staff. Consider using trained university student interns, especially law,

nursing, and social work students. Explore recruitment of AARP members, bar

association senior lawyer or young lawyer section members, others.

Appoint vibrant local coordinators to motivate volunteer monitors.

Monitor and assess public, as well as private, family/professional/agency guardianships.

Refer guardians to freelance probate paralegals to help shape up messy, incomplete, or

suspicious accountings. In some cases, detailed audits, including receipts and cancelled

checks, will be needed. Surcharge the guardian for this expense.

Establish procedures for receiving and timely responding to guardianship complaints,

including letters and anonymous telephone calls. Recognize reticence of public to

complain to court.

Send reports and accounts to interested persons so they can verify or object.

Use bonding company investigations to supplement court monitoring.

C. Funding

Seek funding from county commissioners for monitoring costs.

In particular, seek county funding for costs of mileage for volunteers.

Have county commissioner accompany a volunteer on a visit, to strengthen understanding

of need for monitoring.

Charge individual's estate for part or all of costs of monitoring.

D. Training

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Prepare a 1- to 4-page instruction sheet or brochure on duties of guardians, and hand it to

guardian at time of appointment. Material coming directly from the judge in the

courtroom has an impact.

Develop slide presentations to instruct guardians on their role and responsibilities.

Don't reinvent the wheel. Review existing guardian training curricula from other

jurisdictions.

Have guardians watch videos after appointment, or after two to three months, when they

may have more questions. (See list of guardianship videos to be distributed through

NCPJ.)

Consider requiring lay guardian training by court order. Make training free of charge and

offered at convenient location and times. Require a certificate of completion be filed, and

institute a tickler system to be sure training is completed. Ensure that guardians are aware

of community resources, including the Area Agency on Aging.

Use community resources (such as Area Agencies on Aging, schools of social work, state

guardianship association) to aid in developing guardian training programs and to train

guardians. Attorneys and/or private professional conservators may be willing to

contribute to the training pro bono as a service to the court.

E. Community Links

Develop relationships and protocols with state and Area Agencies on Aging and their

long-term care ombudsman programs for assistance in monitoring.

Develop protocol for sending the state bar grievance committee copies of any notices or

show cause orders issued to guardians who are attorneys.

Explore possible use and recruitment of volunteers with universities, bar groups, aging

organizations.

Work with state guardianship association.

Develop relationship with prosecutors so that egregious/criminal cases of elder abuse and

neglect can be referred to the criminal justice system.

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Hearing: Maximizing Participation

Can any of these strategies be implemented to increase the participation of the individual?

Ensure Access to the Courthouse and Courtroom

Do accessibility check of your courthouse and courtroom.35

Get a local disability group to visit the court and make recommendations for removing

accessibility barriers.

Consider Alternative Locations for Hearing

Move the hearing site (e.g., to a nursing home) to understand in greater depth individual's

circumstances.

Reduce Intimidation; Respect Privacy

Conduct hearings at the bench or in private chambers.

Address Hearing Loss

Minimize background noise and use auditory amplifiers when available.

Look at the individual when speaking so individuals can read lips.

Speak slowly and distinctly, but do not over-articulate or shout as this can distort speech and

facial gestures.

Use a lower pitch of voice for common problems with high frequency tone hearing loss.

Address Vision Loss

Increase lighting.

Format documents in large print, if possible (e.g., 14- or 16-point font) and double-spaced.

Give individual additional time to read documents.

Allow extra time to refocus when shifting between reading and viewing objects at a distance.

Address Cognitive Impairments

Begin with simple questions requiring brief responses.

Use a slower pace to allow the individual to process and digest information.

Allow extra time for responses to questions, as "word-finding" can decline with age.

Break information into smaller, manageable segments, focusing on one issue at a time.

Provide cues (lists, reminders) to assist recall.

Repeat, paraphrase, and summarize periodically, as well as check for accuracy comprehension.

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Hearing: Examination of the Healthcare Professional

These questions can be used to examine the healthcare professional or others providing

information on the individual's condition and level of functioning.

1. Medical Condition

What is causing the problem?

Is it temporary or permanent?

What are the physical diagnoses? How severe are they? Might they improve? When? How (what

treatment)?

What are the mental diagnoses? How severe are they? Might they improve? When? How (what

treatment)?

When did the problem start? How long has it been going on? Are there any recent medical or social

events? What treatments and services have been tried?

What medications is the individual on, including dosage? Could the medications make capacity worse?

Have all temporary or reversible causes of cognitive impairment been evaluated and treated?

Have conditions that may mimic dementia been ruled out (e.g., depression, malnutrition, dehydration,

delirium, transfer trauma, polypharmacy, alcohol use, etc.)?

Are there any mitigating factors (e.g., hearing loss, vision loss, bereavement) that may cause the person

to appear incapacitated and could improve with time or treatment?

2. Cognitive Functioning

What is the individual's level of alertness/arousal, orientation, memory and cognitive abilities,

psychiatric and emotional state? How well can this individual make decisions?

3. Everyday Functioning

What can the individual do in terms of taking care of self? Making financial decisions? Making medical

decisions? Taking care of the home environment and functioning independently in the community?

What is the level of functioning related to any other specific legal matters in this case (e.g., sale of

home, move to nursing home)?

4. Values

What are some of the individual's key values? Are current choices consistent with those values? In the

future, how might care be provided or decisions made in a manner that respects these values?

5. Risk of Harm and Level of Supervision Needed

Is there immediate or ongoing risk of substantial harm? What level of supervision is needed to protect

the individual? Are there any abilities—even if small in scope—that the individual retains?

6. Means to Enhance Capacity

In the future, would any education, training, treatment, assistive device, or housing arrangement benefit

the individual?

If these treatments might help the individual, when should he or she be re-evaluated?

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Jury Instructions6

1. In the petitioner's claim that Mrs. X is an incapacitated person and needs a guardian, the

petitioner has the burden of proving by clear and convincing evidence that:

i. She lacks the ability to receive and evaluate information.

ii. She lacks the ability to make or communicate decisions.

iii. She lacks the ability to meet essential requirements for her physical health, safety, or

self-care.

iv. There is no technical assistance or accommodation that can make up for the lack of

these abilities.

v. There is no less restrictive alternative to guardianship that would suffice to meet her

needs. For example, advance directives for health care and Social Security

representative payees are considered less restrictive alternatives to guardianship.

vi. She would be harmed without the protection of a guardian.

2. Capacity is task-specific. If you think she lacks some, but not all, abilities, you must specify the

kinds of actions or decisions for which she has capacity and the kinds of actions or decisions for

which she does not have capacity. This may make it possible to limit any guardianship order,

removing only some of her rights and autonomy, but not all. Think about her specific abilities in

the following areas:

i. Financial

ii. Health care

iii. Personal safety and hygiene

iv. Living arrangements; using community resources

3. Sickness, eccentricity, and old age do not, of themselves, amount to incapacity.

4. People have the right to make foolish or eccentric decisions and to govern their own affairs,

unless they lack decision-making capacity and cannot understand the consequences of their

decisions.

6 Example is based on provisions in the Uniform Guardianship and Protective Proceedings Act. For materials on jury

instructions specific to Texas law, see Smith, Darlene Payne, Jury Questions and Instructions: No Pattern for Probate, Chap.

10, State Bar of Texas Advanced Estate Planning and Probate Institute, Houston TX (June 2001).

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Caution: Less

restrictive

alternatives have

risks, as well as

benefits. They lack

the judicial oversight

inherent in the

guardianship

process, and there

may be a potential for

abuse.

Less Restrictive Alternatives to Guardianship

he expeditious management of a guardianship case begins soon after the petition has been

presented. While some courts have formal diversion programs by which the problems leading to

the guardianship petition may be successfully addressed, in most courts the responsibility falls on

the shoulders of the judge to ensure that only cases with genuine issues of capacity and probable need

for guardianship proceed. The court should have investigatory and expert services to assist in exploring

viable alternatives to guardianship. A finely tuned evaluation is a key tool.

The constitutional principle of the least restrictive alternative was first

articulated by the U.S. Supreme Court36 and was applied to mental health37

in a case in which the court said that a person could not be subjected to a

mental health commitment of unspecified time without an exploration of all

alternatives.

The following checklist for less restrictive alternatives to guardianship was

prepared by Professor Joan O'Sullivan, University of Maryland School of

Law. Some of the alternatives provide functional assistance, while others

are legal tools that provide decisional assistance. Legal tools vary by state.

If the person needs medical treatment, but is not able to consent:

Health Care Advance Directive

Any written statement a competent individual has made concerning future health care

decisions. The two typical forms of advance directive are the living will and the health care

power of attorney.

Surrogate decision making by an authorized legal representative, a relative, or a close friend

In many states, the next of kin are authorized to make some or all medical treatment decisions

in the absence of a health care advance directive or appointed guardian.

If the problem involves litigation against or by the disabled person:

Appointment of Guardian ad litem

The court in which litigation is proceeding has authority to appoint a guardian ad litem solely

for the purpose of representing the best interests of the individual in the litigation.

If the problem involves a family dispute:

Mediation

Referring a case to mediation before a hearing offers a personal, confidential, and less

intimidating setting than the courtroom, as well as an opportunity for exploring underlying

issues privately.

T

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If the person needs help with financial issues:

Bill paying services

Also called money management services, these assist persons with diminished capacity

through check depositing, check writing, checkbook balancing, bill paying, insurance claim

preparation and filing, tax and public benefit preparation, and counseling.

Utility company third party notification

Most utility companies permit customers to designate a third party to be notified by the utility

company if bills are not paid on time.

Shared bank accounts (with family member)

The use of joint bank accounts is a common strategy for providing assistance with financial

management needs. However, if the joint ownership arrangement reaches most of the

individual's income or assets, it also poses risk in its potential for theft, self-dealing,

unintended survivorship, and exposure to the joint owner's creditors. A more secure

arrangement is a multiple-party account with the family member or friend designated as agent

for purposes of access to the account.

Durable Power of Attorney for finances

This legal tool enables a principal to give legal authority, as broadly or as narrowly as desired,

to an agent or attorney in fact to act on behalf of the principal, commencing either upon

incapacity or commencing immediately and continuing in the event of incapacity. Its creation

requires sufficient capacity to understand and establish such an arrangement.

Trusts

Trusts can be established to serve many purposes, but an important one is the lifetime

management of property of one who is or who may become incapacitated. They are especially

useful where there is a substantial amount of property at stake and professional management is

desired. Special or supplemental needs trusts and pooled income trusts are recognized under

federal Medicaid and Social Security laws as permissible vehicles for managing the funds of

persons with disability who depend on government programs for their care needs.

Representative Payee

A person or organization authorized to receive and manage public benefits on behalf of an

individual. Social Security, Supplemental Security Income (SSI), veterans' benefits, civil

service and railroad pensions, and some state programs provide for appointment of a "rep

payee." Each program has its own statutory authorization and rules for eligibility,

implementation, and monitoring.

Adult protective services

The term protective services encompasses a broad range of services. It includes various social

services voluntarily received by seniors in need of support (e.g., homemaker or chore services,

nutrition programs). It also includes interventions for persons who may be abused, neglected,

or exploited, and which may lead to some form of guardianship.

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If the person is living in an unsafe environment:

Senior shared housing programs

In shared housing programs, several people live together in a group home or apartment with

shared common areas. Congregate housing refers to complexes with separate apartments

(including kitchen), some housekeeping services, and some shared meals. Many congregate

care facilities are subsidized under federal housing programs. Personal care and health

oversight are usually not part of the facility's services, but they may be provided through other

community social services.

Adult foster care

Adult foster care is a social service that places an older person, who is in need of a modest

amount of daily assistance, into a family home. The program is similar to foster care programs

for children. The cost varies and may be covered in part by the state social services program.

Community residential care

These are small supportive housing facilities that provide a room, meals, help with activities of

daily living, and protective supervision to individuals who cannot live independently, but who

do not need institutional care.

Assisted living

Assisted living facilities provide an apartment, meals, help with activities of daily living, and

supervision to individuals who cannot live independently, but who do not need institutional

care.

Nursing home

Nursing homes provide skilled nursing care and services for residents who require medical or

nursing care; or rehabilitation services for injured, disabled, or sick persons.

Continuing Care Retirement Communities (CCRCs)

CCRCs, also called life care communities, usually require the payment of a large entry fee,

plus monthly fees thereafter. The facility may be a single building or a campus with separate

independent living, assisted living, and nursing care. Residents move from one housing choice

to another as their needs change. While usually very expensive, many guarantee lifetime care

with long-term contracts that detail the housing and care obligations, as well as its costs.

If the person needs help with activities of daily living or supervision:

Care management

This is provided by a social worker or health care professional, who evaluates, plans, locates,

coordinates, and monitors services for an older person and the family.

Home health services

If the person needs medical care or professional therapy on a part-time or intermittent basis, a

visiting nurse or home health aide from a home health agency may meet that need. Some

services may be covered by Medicare or Medicaid, private insurance, or state programs

Home care services

Homemaker or chore services can provide help with housework, laundry, ironing, and

cooking. Personal care attendants or personal assistants may assist an impaired person in

performing activities of daily living, (i.e., eating, dressing, bathing, toileting, and transferring),

or with other activities instrumental to daily functioning.

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Adult day care services

These are community-based group programs designed to meet the needs of functionally and/or

cognitively impaired adults through an individual plan of care. Health, social, and other related

support services are provided in a structured, protective setting, usually during normal

business hours. Some programs may offer services in the evenings and on weekends.

Respite care programs

"Respite" refers to short-term, temporary care provided to people with disabilities in order that

their families can take a break from the daily routine of caregiving. Services may involve

overnight care for some period of time.

Meals on wheels

Volunteers deliver nutritious lunchtime meals to the homes of people who can no longer

prepare balanced meals for themselves. The volunteers also provide daily social contact with

elders to ensure that everything is okay.

Transportation services

Because many elders cannot afford a special transit service, and are too frail to ride the bus,

senior transportation services volunteers drive clients to and from medical, dental, or other

necessary appointments, and remain with them throughout the visit.

Food and prescription drug deliveries

Either volunteer-based or commercially-based delivery services for food or prescription drugs,

may assist those who are unable to leave their home regularly.

Medication reminder systems

This may include a weekly pill organizer box, or another pill distribution system, or telephone

reminder calls.

Telephone reassurance programs

These services use volunteer to provide a daily telephone call to older persons living alone.

Emergency call system ("lifeline")

Usually includes equipment added to the telephone line, plus a wireless signal button worn by

the older adult. Trained responders provide emergency assistance in the event of a medical

emergency in the home, such as a fall.

Home visitors and pets on wheels

Elder service agencies and other volunteer agencies may match elders with home visitors,

including visiting pets, which provide social interaction and a form of monitoring.

Daily checks on the person by mail carriers

Many mail carriers, if notified than an elder at risk is living at an address, will monitor the

home to insure that mail has been picked up daily, and if not, notify a designated individual.

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Limitations to Guardianship7

Care of Self

Ms. Xxx retains the right to be responsible for bathing, dressing, toileting, and dental care (with

assistance).

Mr. Xxx retains the right to choose and determine his daily meals.

Financial Decision Making and Management

Mr. Xxx retains the rights to have and spend $20 of cash per week.

Ms. Xxx retains the rights to manage and use her checkbook (with a monthly limit).

Mr. Xxx retains the right to plan a budget, including monthly expenditures, and to direct the guardian

in expenditures.

Ms. Xxx retains the rights to purchase and give gifts to individuals of her choosing (not to exceed xxx

per month).

Mr. Xxx retains the right to make gifts or donations to organizations of his choosing (not to exceed

xxx per donation).

Ms. Xxx retains the right to make or modify a will.

Ms. Xxx retains the right make decisions concerning purchase or sale of her home. (Her home at Yyy

Street is not to be sold without prior authorization of the court.)

Mr. Xxx retains the right to deposit, withdraw, dispose, or invest monetary assets.

Ms. Xxx retains the right to establish and use credit.

Mr. Xxx retains the right to pay, settle, prosecute, or context a claim.

Ms. Xxx retains the right to enter into a contract, financial commitment, or lease arrangement

Mr. Xxx retains the right to continue or participate in the operation of a business.

Mr. Xxx retains the right to manage his property and investments.

7 These limitations are phrased as rights reserved. In some states, orders are written to specify rights removed.

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Medical Decision Making and Management

Mr. Xxx retains the right to make and communicate decisions about his health care, including the

continuance or withdrawal of life-sustaining treatment.

Ms. Xxx retains the right to choose a health or long-term care facility.

Mr. Xxx retains the right to chose and direct home health care providers.

Ms. Xxx retains the right to manage her medications (with assistance).

Home and Community Life

Ms. Xxx retains the right to determine her residence/live at home.

Ms. Xxx retains the right to be responsible for maintaining and cleaning her home (with assistance).

Mr. Xxx retains the right to be left alone (with time limit).

Ms. Xxx retains the right to drive.

Mr. Xxx retains the right to use public transportation independently.

Ms. Xxx retains the right to make and communicate choices about roommates.

Mr. Xxx retains the right to select and plan a schedule of daily and leisure activities.

Ms. Xxx retains the right to smoke at a time and place of her determination, within the law.

Mr. Xxx retains the right to seek and obtain employment.

Ms. Xxx retains the right to travel.

Ms. Xxx retains the right to determine with whom she has friendships and visitation.

Mr. Xxx retains the right to determine his or her degree of participation in religious activities.

Ms. Xxx retains the right to use the telephone (without supervision).

Mr. Xxx retains the right to correspond with others and to use mail/e-mail (without supervision).

Other Civil and Legal Matters

Ms. Xxx retains the right to retain legal counsel.

Mr. Xxx retains the right to vote.

Ms. Xxx retains the right to make and communicate decisions regarding legal documents.

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Means to Enhance Capacity

Cause of Confusion Possible Intervention

Alcohol or other substances

intoxification

Detoxification; supplement diet or other intake needs

Altered blood pressure Treat underlying cause of blood pressure anomaly with medication or

other treatment

Altered low blood sugar Management of blood sugar through diet or medication

Anxiety Treatment with medications and/or psychotherapy; support groups

Bereavement; Recent death

of a spouse or loved one

Support; counseling by therapist or clergy; support group; medications

to assist in short term problems (e.g., sleep, depression)

Bipolar disorder Treatment with medications and/or psychotherapy; support groups

Brain tumor Surgery and medication

Delirium Obtain standard labs; obtain brain scan if indicated; assess vitals; treat

underlying cause; monitor and reassess over time

Dementia Treatment with medications for dementia; simplify environment;

provide multiple clues within environment; use step-by-step

communication

Depression Treatment with medications and/or psychotherapy; add pleasurable

activities to day; ECT if indicated; support groups

Developmental disability Education and training

Difficulty hearing Use hearing amplifiers; have hearing evaluated; provide hearing aids;

write information down; repeat information; slow down speech; speak

clearly and distinctly

Difficulty seeing Use magnifying glass; have sight evaluated; provide glasses; provide

spoken information; repeat information; ensure sufficient lighting; use

large print; have access to Braille materials

Difficulty understanding

English

Use translator

Head injury Treatments for acute effects (e.g., bleed, pressure, swelling) as

necessary; monitoring over time; rehabilitative speech, physical,

occupational therapies

Infection (e.g., urinary,

influenza, pneumonia,

meningitis)

Treat underlying infection with antibiotic or other treatment

Insomnia Sleep hygiene practices (e.g., limit caffeine, light exercise, limit naps);

medications

Liver or kidney disease

Treatment of underlying illness with medication, dialysis, surgery

Loneliness Social and recreational activities; support groups

Low educational or reading

level; illiterate

Provide information in simple language without "talking down";

provide information in multiple formats

Malnutrition or dehydration

IV fluids; fluid/food by mouth; food supplements; food by feeding tube

Mania Treatment with medications and/or psychotherapy; support groups

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Medications and sudden

medication withdrawal

Review of medications by clinical pharmacist or specialist; slow oneby-

one tapers or changes of medications

Poor heart or lung function

(e.g., hypoxia)

Treatment of underlying condition with medication, surgery,

supplemental oxygen

Post surgical confusion

(usually related to anesthesia

or pain medicines)

Monitoring and reassessment over time; try alternative medications and

treatments for pain management

Recent stressful event;

Depression and anxiety

Support, counseling by therapist or clergy; support group; medications

to treat symptoms

Religious, cultural, or ethnic

background

Sensitivity to religious, cultural, and ethnic traditions; inquire about

views and needs; involve professional from similar background

Schizophrenia; hallucinations

or delusions

Treatment with medications for schizophrenia; simplify environment;

provide support

Transfer trauma (a recent

move that has the individual

disoriented)

Monitoring over time; re-orientation to environment

Transient ischemic attacks

(TIA)

Treatment of risk factors to prevent future recurrence

Urinary or fecal retention Treat underlying cause of retention through medication or surgery

Vitamin deficiency;

Imbalances in electrolytes

and blood levels

Vitamin or electrolyte supplement; balanced diet; diet supplements

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Medical Conditions Affecting Capacity8

Dementia is a general term for a medical condition characterized by a loss of memory and functioning.

Primary degenerative dementias are those with disease processes that result in a deteriorating course,

including Alzheimer's disease, Lewy Body Dementia, and Frontal Dementia (each associated with a

type of abnormal brain cell).

Condition Source Symptoms Treatability

Alcoholic Dementia A fairly common form

of dementia, caused

by long-term abuse of

alcohol, usually for 20

years or more.

Alcohol is a

neurotoxin that passes

the blood-brain

barrier.

Memory loss, problem

solving difficulty, and

impairments in

visuospatial function

are commonly found

in patients with

alcohol dementia.

Alcohol dementia is

partially reversible, if

there is long term

sobriety—cessation of

use. There is evidence

to suggest that some

damaged brain tissue

may regenerate

following extended

sobriety, leading to

modest improvements

in thinking and

function.

Alzheimer's disease ("AD") Most common type of

dementia, caused by a

progressive brain

disease involving

protein deposits in

brain and disruption of

neurotransmitter

systems.

Initial short-term

memory loss,

followed by problems

in language and

communication,

orientation to time and

place, everyday

problem solving, and

eventually recognition

of people and

everyday objects. In

the early stages, an

individual may retain

some decisional and

functional abilities.

Progressive and

irreversible, resulting

ultimately in a

terminal state.

Medications may

improve symptoms

and cause a temporary

brightening of

function in the earlier

stages.

Bipolar Disorder or

Manic Depression

A psychiatric illness

characterized by

alternating periods of

mania and depression.

Affects functional and

decisional abilities in

the manic stage or

when the depressed

stage is severe.

Can be treated with

medications, but

requires a strong

commitment to

treatment on the part

of the individual.

Varies over time;

periodic re-evaluation

is needed.

8 This list is meant to define terms as used in this book, and is not meant to define terms more universally. The glossary uses

definitions from the Diagnostic and Statistical Manual of Mental Disorders, where available, and where not, definitions are

based on the consensus of the working group.

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Condition Source Symptoms Treatability

Coma A state of temporary

or permanent

unconsciousness.

Minimally responsive

or unresponsive,

unable to

communicate

decisions and needs a

substitute decision

maker.

Often temporary;

regular re-evaluation

required.

Delirium A temporary

confusional state with

a wide variety of

causes, such as

dehydration, poor

nutrition, multiple

medication use,

medication reaction,

anesthesia, metabolic

imbalances, and

infections.

Substantially impaired

attention and

significant decisional

and functional

impairments across

many domains. May

be difficult to

distinguish from the

confusion and

inattention

characteristic of

dementia.

Often temporary and

reversible. If untreated

may proceed to a

dementia. It is

important to rule out

delirium before

diagnosing dementia.

To do so, a good

understanding of the

history and course of

functional decline, as

well as a full medical

work-up, are

necessary.

Frontal or Frontotemporal

Dementia

(Pick's disease is one

example)

Broad category of

dementia caused by

brain diseases or small

strokes that affect the

frontal lobes of the

brain.

Problems with

personality and

behavior are often the

first changes, followed

by problems in

organization,

judgment, insight,

motivation, and the

ability to engage in

goal-oriented

behavior.

Early in their disease,

patients may have

areas of retained

functional ability, but

as disease progresses

they can rapidly lose

all decisional capacity.

Jacob-Creutzfeldt Disease A rare type of

progressive dementia

affecting humans that

is related to 'mad

cow' disease.

The disease usually

has a rapid course,

with death occurring

within two years of

initial symptoms.

These include fatigue,

mental slowing,

depression, bizarre

ideations, confusion,

and motor

disturbances,

including muscular

jerking, leading finally

to a vegetative state

and death.

There is no treatment

currently and the

disease is relentlessly

progressive.

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Condition Source Symptoms Treatability

Diffuse Lewy Body

Dementia (DLB)

A type of dementia on

the Parkinson disease

spectrum.

DLB involves mental

changes that precede

or co-occur with

motor changes. Visual

hallucinations are

common, as are

fluctuations in mental

capacity.

This disease is

progressive and there

are no known

treatments. Parkinson

medications are often

of limited use.

Major Depression A very common

psychiatric illness.

Sad or disinterested

mood, poor appetite,

energy, sleep, and

concentration, feelings

of hopelessness,

helplessness, and

suicidality. In severe

cases, very poor

hygiene,

hallucinations,

delusions, and

impaired decisional

and functional

abilities.

Treatable and

reversible, although in

some resistant cases

electroconvulsive

therapy (ECT) is

needed.

Developmental Disorders

("DD") including Mental

Retardation ("MR")

Brain-related

conditions that begin

at birth or childhood

(before age 18) and

continue throughout

adult life. MR

concerns low-level

intellectual

functioning with

functional deficits that

can be found across

many kinds of DD,

including autism,

Down syndrome, and

cerebral palsy.

Functioning tends to

be stable over time but

lower than normal

peers. MR is most

commonly mild. Some

conditions such as

Downs syndrome may

develop a supervening

dementia later in life,

causing decline in

already limited

decisional and

functional abilities.

Not reversible, but

everyday functioning

can be improved with

a wide range of

supports,

interventions, and less

restrictive alternatives.

Individuals with DD

have a wide range of

decisional and

functional abilities

and, thus, require

careful assessment by

skilled clinicians.

Parkinson's Disease (PD) Progressive brain

disease that initially

affects motor function,

but in many cases

proceeds to dementia.

PD presents initially

with problems with

tremors and physical

movement, followed

by problems with

expression and

thinking, and leading

sometimes to

dementia after a

number of years.

PD is progressive, but

motor symptoms can

be treated for many

years. Eventually,

medications become

ineffective and most

physical and mental

capacities are lost.

Evaluation of capacity

must avoid confusion

of physical for

cognitive impairment.

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Condition Source Symptoms Treatability

Persistent Vegetative State

(PSV)

A state of minimal or

no responsiveness

following emergence

from coma.

Patient is mute and

immobile with an

absence of all higher

mental activity.

Cannot communicate

decisions and requires

a substitute decision

maker for all areas.

Cases of PSV usually

lead to death within a

year's time.

Schizophrenia A chronic brain-based

psychiatric illness

Hallucinations and

delusions; poor

judgment, insight,

planning, personal

hygiene, and

interpersonal skills.

May range from mild

to severe, and impact

on functional and

decisional abilities,

are likewise variable.

Many symptoms can

be successfully treated

with medication.

Capacity loss often

occurs when patients

go off their

medications.

Stroke or Cerebral Vascular

Accident ("CVA")

A significant bleeding

in the brain, or a

blockage of oxygen to

the brain.

May affect just one

part of the brain, so

individuals should be

carefully assessed to

determine their

functional and

decisional abilities.

Some level of

recovery and

improved function

over the first year;

thus a temporary

guardianship might be

considered if the

stroke is recent.

Traumatic Brain Injury

("TBI")

A blow to the head

that usually involves

loss of consciousness.

Individuals with mild

and moderate TBI

may appear

superficially the same

as before the accident,

but have persisting

problems with

motivation, judgment,

and organization.

Those with severe TBI

may have profound

problems with

everyday functioning.

Usually show

recovery of thinking

and functional abilities

over the first year;

thus a temporary

guardianship should

be considered if the

injury is recent.

Vascular Dementia ("VaD") Multiple strokes that

accumulate and cause

dementia.

Decisional and

functional strengths

and weaknesses may

vary, depending on the

extent and location of

the strokes.

May remain stable

over time if

underlying

cerebrovascular or

heart disease is

successfully managed.

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Role of Judges in Capacity Determinations

Protecting Rights

The underlying aim of guardianship is to protect the well-being of vulnerable individuals. The

reality is, however, that the appointment of a guardian results in the partial or complete loss of

liberty and a potential litany of legal rights that adults enjoy, including the right to contract,

vote, travel at will, and decide where to live. The potential loss of these rights may be further

exacerbated by ageist stereotypes. Moreover, losing rights to make choices can be a selffulfilling

prophesy: "taking away people's rights to make decisions on their own makes them

less competent."38 Identifying the choices and rights that should remain intact depends directly

on the quality of the capacity determination process.

Promoting Self Determination

Along with identifying deficits in functioning, a careful determination of capacity identifies

the individual's strengths and the circumstances or environment that can maximize the

individual's capacities.

Identifying Less Restrictive Alternatives

Closely related to the goal of promoting self-determination is the identification of intervention

strategies short of guardianship that protect an individual's well-being with as little intrusion

as possible into legal rights and autonomous functioning.

Providing Guidance to Guardians

The guidance provided by a high-quality capacity determination process assists the guardian

after his or her appointment. By articulating the specific areas of functional deficit and areas of

functional strength, along with the environmental features that may enhance functioning, the

guardian can better prepare and implement a guardianship plan that permits and encourages

the maximum self-functioning of the individual.

Making Determinations of Restoration

Not all losses of functional capacity are permanent or progressive. A thorough understanding

of the individual's diagnosis, prognosis, and pattern or functional strengths and weaknesses

helps identify those who may improve, and suggests a possible timetable for re-determination.

Crafting Limited Guardianships

The ethical and conceptual preference for limited guardianship has been a core element of

guardianship reform for a quarter century.39 Limited guardianship seeks to attain an optimal

balance of care and protection with autonomy and dignity. Today, limited guardianship is

available in every state. Yet, the reality persists that it is underutilized.40 The inadequacy of the

clinical assessment process and its review in judicial proceedings often contributes to the

under-use of limited guardianship. Without a thorough and discriminating mapping of

functional strengths and weaknesses, limited guardianship has no feet to stand on.

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Overcoming Perceived Barriers to Limited Guardianship

Perceived barrier: Limited guardianship is not an efficient use of judicial resources—as the

person's needs change, the guardian will be back in court for a modification of the order.

Response: Many conditions are stable or progress slowly. Moreover, preserving rights should

not be compromised by convenience or cost-effectiveness.

Perceived barrier: Unlike persons with mental retardation, elders with cognitive problems

may be continually losing mental capacity and would require multiple modifications.

Response: While this may be true for some, it is not true for all. Alzheimer's disease can

progress rather quickly or may progress slowly over many years, stroke victims have long

periods of stabilization, and some causes of cognitive impairment are reversible.

Perceived barrier: It causes ambiguity for third parties, who may not know exactly what

authority the guardian has.

Response: The guardianship is for the benefit of the individual, not third parties. Clarity in

court orders and guardianship plans will help the guardian in dealing with others.

Perceived barrier: Judges may lack knowledge of what persons can and cannot do.

Response: A good clinical or court report describes the person's specific functional abilities.

Perceived barrier: With overcrowded dockets, judges do not have the time to craft

individualized orders.

Response: Semi-standard court orders or templates for limited guardianships can provide a

ready basis and allow the judge to individualize further when necessary. Judges may craft

orders around the five functional domains: (1) care of self, (2) financial, (3) medical, (4) home

and community, (5) other civil matters.

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Strategies for Improving Practice in Your Court

ow do the procedures for clinical evaluation described in this book compare to

contemporary practice? In a study funded by the Farnsworth Foundation, clinical evaluations

from 308 guardianship files in eight courts from three states (Massachusetts, Pennsylvania, and

Colorado) were reviewed. Colorado has had the most recent and most extensive reform modeled after the

UPC; Massachusetts has not substantially revised its guardianship code; Pennsylvania has had an

intermediate degree of guardianship reform. The mean length of reports (in words) across the states

varied considerably, with Colorado having the longest clinical evaluations (M=924.03). The other states

were considerably shorter: Pennsylvania (M=244.29); Massachusetts (M=82.62). Clinical reports in

Colorado tended to provide more comprehensive clinical information, but in general, detailed

information was missing from most clinical evaluation reports. For example, information on ADLs was

provided only 38 % of the time in reports in Colorado (compared to 19% of reports in Massachusetts and

10% of reports in Pennsylvania). Information on the prognosis for the medical condition was provided

only 54% of the time in Massachusetts (compared to 23% in Massachusetts and 22% in Pennsylvania).

Judges in Colorado were more likely to use limited orders: 34% of guardianships were limited. Limited

guardianships were rarely used in Massachusetts (1.3%) or Pennsylvania (2.7%). Limitations in

Colorado often concerned specific financial transactions, medical decisions, or removal from the judicial

district. Qualitative analysis revealed some confusion regarding the use of a time limited guardianship

(time limited, but based on a finding of incapacity) versus emergency guardianship (circumvents due

process in the event of risk of substantial harm). These analyses suggest that guardianship reform

may be associated with improved quality of clinical evaluations and the use of limited orders.

However, much more work is needed to educate clinicians so they provide judges the detailed

information needed to craft limited orders.

How can we improve the process of capacity assessment by clinical professionals?

Reform within the Healthcare Professions

Within healthcare, there is an emerging recognition of the need to train professionals to provide better

assessments of older adults for the purposes of guardianship. Many professional healthcare organizations

are working to improve clinical practice in this area.

Reform at the Statutory Level

Further, much of guardianship law continues to evolve and as guardianship law becomes more consistent

with modern understandings of the human brain, it is likely to exert an influence on the process of

capacity assessment.

Reform at the Individual Court Level

Some of the most potent reform has come through the leadership of individual judges who work to

improve guardianship practices within their court to better protect the rights and to provide for the needs

of older adults under guardianship. Judges have developed innovative case management systems, paid or

volunteer-based court investigator programs, paid or volunteer-based guardian monitor programs, all of

which contribute to improved capacity assessment and monitoring.

H

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Some specific strategies judges can use to improve the quality of clinical evaluation in their courts are:

Provide orders with specific information needed in a clinical evaluation.

Provide forms for clinicians to use in completing a clinical evaluation.

In examination of clinicians, ask about overlooked areas in clinical evaluations, such as everyday

functioning, values, whether reversible causes of dementia have been ruled out, treatments that

might enhance functioning, and the prognosis for future functioning.

Make court investigator reports available to clinicians.

Have court investigators review clinical reports to ensure adequate quality and to determine if an

independent medical examination would help.

Sponsor joint educational conferences or networking groups bringing together key legal

professionals in the area of guardianship with healthcare professionals.

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Temporary and Reversible Causes of Confusion

If any of these are present:

􀃎 Provide appropriate treatment or accommodations.

􀃎 Re-assess capacity after treatment or accommodation.

Common Medical Causes

Causes of Delirium

Look for:

Drugs9

Electrolytes

Lack of Drugs, Water, Food

Infection or Intoxification

Reduced Sensory Input

Intracranial Causes

Urinary Retention//Fecal Impaction

Myocardial

Other Causes of Confusion

Liver or kidney disease

Vitamin deficiency

Post surgical state

Did the evaluator consider how long the problem has been going on?

Were standard lab tests and vitals done?

> 6 meds or > 3 new meds or use of drugs that cause confusion

Low sodium, blood sugar, calcium, etc

Pain, malnutrition, dehydration

Sepsis, urinary track infection, pneumonia; alcohol, metals, solvents

Impaired vision, hearing, nerve conduction

Subdural hematoma, meningitis, seizure, brain tumor

Drugs, constipation

Heart Attack, heart failure, arrhythmia

Hepatitis, diabetes, renal failure

Folate, nicotinic acid, thiamine, vitamin B12

Anesthesia, pain

Common Psychosocial Causes

Look for: Was a careful case history taken?

Transfer trauma (a recent move that has the individual disoriented)

Recent death of a spouse or loved one

Recent stressful event

Depression and anxiety

Insomnia

Common Miscommunication Problems

Look for: Did the evaluator assess whether the person could see, hear, and understand questions?

Difficulty understanding English

Decisions impacted by religious, cultural, or ethnic background

Low educational or reading level; illiterate

Difficulty hearing or seeing

9 The Delirium mnemonic is adapted from a chapter by Rudolph JL and Marcantonio ER.

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Medications That May Commonly Cause Confusion

Class

Uses Examples of More Problematic Medicines

Anticholinergic

Block the action of the

neurotransmitter

acetylcholine

Atropine, Scopolamine, and many

Antihistamines such as Chlorpheniramin,

Cyproheptadine, Dexchlorpheniramine,

Diphenhydramine, Hydroxyzine, Promethazine

Antidepressants Depression Amitriptyline, Doxepin

AntiParkinson drugs Parkinson's disease

symptoms

Levodopa (L-dopa or Sinemet), Bromocriptine

Antipsychotics Hallucinations,

Delusions

Chlorpromazine, Haloperidol, Thioridazine

Thiothixene

Barbiturates

Sleep and Anxiety Phenobarbital, Secobarbital

Benzodiazepines Sleep and Anxiety Chlordiazepoxide, Diazepam, Flurazepam,

Nitrazepam

Histamine-2 (H2)

Blockers

Block the action of

gastric acid secretion

Cimetidine, Famotidine, Nizatidine,

Ranitidine

Nonsteroidal antinflammatory

drugs (NSAIDs)

Pain Ibuprofen, Indomethacin

Opioids

Pain Morphine, Propoxyphene, Meperidine

Steroids Inflammation,

Pulmonary disease

Predisone, Dexamethasone, Methylprednisolone

Distinguishing Delirium from Dementia

Characteristics

Delirium

Dementia

Onset

Acute Insidious

Course

Fluctuating Stable and deteriorating

Duration

Hours to weeks, sometimes

longer

Months to years

Attention

Poor Usually normal

Perception

Hallucinations and

misperceptions

Usually normal

Consciousness and orientation

Clouded; disoriented Clear until late stages

Memory Poor memory after 1 minute or

more

Poor memory after 15 minutes

or more, but may be okay in

shorter time periods

Note: The most critical factors in distinguishing a temporary cause of impairment from dementia are:

comes on rather suddenly, fluctuates between good and bad, problems with attention.

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Useful Websites

Administration on Aging http://www.aoa.gov

Alzheimer's Association http://www.alz.org

AARP http://www.aarp.org

American Bar Association

Commission on Law and Aging http://www.abanet.org/aging

American College of

Trust & Estate Counsel http://www.actec.org/

American Medical Association http://www.ama-assn.org/

American Psychological Association http://www.apa.org

American Psychiatric Association http://www.psych.org/

Centers for Medicaid &

Medicare Services http://www.cms.hhs.gov

Conference of State

Court Administrators http://cosca.ncsc.dni.us/

First Gov for Seniors

(Federal clearinghouse) http://www.firstgov.gov/Topics/Seniors.shtml

Medicare http://www.medicare.gov

National Academy of

Elder Law Attorneys http://www.naela.com/

National Association of

Area Agencies on Aging http://www.n4a.org/

National Association for

Court Management http://www.nacmnet.org/

National Association of

Professional Geriatric Care

Managers http://www.caremanager.org/

National Association of Social Workers http://www.naswdc.org

National Association of

State Judicial Educators http://nasje.org/

National Association of

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State Units on Aging http://www.nasua.org/

National Center for State Courts http://www.nasua.org/

National College of Probate Judges http://www.ncpj.org/

National Council on Aging http://www.ncoa.org

National Committee to Preserve

Social Security & Medicare http://www.ncpssm.org

National Disability Rights Network http://www.napas.org/

National Guardianship Association http://www.guardianship.org/

Social Security Administration http://www.socialsecurity.gov

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Values

This form provides a guide for asking individuals about their core values. This form may be used

in a capacity evaluation to understand how choices relate to values, and can be used to form the

basis of a guardianship plan.

Your Values and Your Medical Decisions41

1. First, think about what is most important to you in your life. What makes life meaningful or good

for you now?

2. Now, think about what is important to you in relation to your health. What, if any, religious or

personal beliefs do you have about sickness, health care decision-making, or dying?

3. Have you or other people you know faced difficult medical treatment decisions during times of

serious illness?

4. How did you feel about those situations and any choices that were made?

5. Some people feel a time might come when their life would no longer be worth living. Can you

imagine any circumstances in which life would be so unbearable for you that you would not want

medical treatments used to keep you alive?

6. If your spokesperson ever had to make a medical decision on your behalf, are there certain

people you would want your spokesperson to talk to for advice or support (family members,

friends, health care providers, clergy, other)?

7. Is there anyone you specifically would NOT want involved in helping to make health care

decisions on your behalf?

8. How closely would you want your spokesperson to follow your instructions about care decisions,

versus do what they think is best for you at the time decisions are made?

9. Should financial or other family concerns enter into decisions about your medical care? Please

explain.

10. Are there other things you would like your spokesperson to know about you, if he or she were

ever in a position to make medical treatment decisions on your behalf?

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Your Values and Your Financial Decisions

1. What is your financial history? Are you in any debt? Do you live week to week? Are you able to

plan ahead and save for the future?

2. Do you have enough money to provide for yourself in your retirement?

3. Have you made a will?

4. How knowledgeable are you about financial investments? What, if any, types of investments do

you currently have?

5. What are the things you like to spend money on? In spending money, what are your highest

priorities?

6. Are there people or organizations to who you generally make gifts or contributions?

7. How would you like to invest and manage your money in the future? Do you want to stick with

what you know, or are you open to new investment options?

8. Do you prefer higher-risk investments with a possibility of higher return, or lower-risk

investments with a smaller, guaranteed return?

9. If you needed help with your finances, who would you like to help you? Who can you trust to

ensure your best interests?

10. How well does this person handle his or her own finances? Is he/she in debt? Does he/she have a

good credit record? Is he/she knowledgeable about financial investments?

11. Do you currently have or would you like to obtain a financial advisor? Would this person be a

more objective spokesperson than a relative or close friend?

12. Are there certain people with whom you would like your spokesperson to discuss financial

decisions on your behalf (family, financial advisors, other)?

13. Is there anyone you specifically would NOT want to be involved in helping to make financial

decisions on your behalf?

14. How closely would you want your spokesperson to follow your instructions about financial

decisions, versus what he or she thinks is best for you at the time decisions are made?

15. Are there other things you would like your spokesperson to know about you, if he or she were

ever in a position to make financial decisions on your behalf?

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Your Values and Your Home and Community

1. Where are you living now? How long have you been there?

2. Does anyone live there with you? If not, do you have any fears or concerns about living alone?

3. Does anyone visit on a regular basis?

4. What family and/or friends live in your community who are important to you?

5. What is most important to you about where you live? What makes it "home"?

6. What kind of personal activities do you enjoy doing at home?

7. Are there community activities in which you enjoy participating?

8. What do you like about your house/apartment?

9. What do you not like about your house/apartment? What does not work well for you and why?

10. Do you feel that you can manage the house/apartment on your own? Have you noticed any

changes in your abilities to manage?

11. Are there areas of your life that you feel you may need some assistance managing? For instance,

do you have any trouble with housekeeping, yard work, preparing meals, shopping, driving,

using the telephone, the mail, your health, taking medications, managing your money, or paying

bills on your own?

12. Is there someone helping you with any of these things?

13. If you needed help, who would you like to help you?

14. Have you had any safety concerns at home? For instance, have you ever accidentally left the

stove or oven on, fallen and been unable to get up by yourself, left your doors unlocked, or

invited a stranger into your home?

15. Where would you like to live in the future?

16. Have you ever considered moving to a place where there would be more help for you, such as

senior housing, assisted living, or a nursing home? How do you feel about that? What fears or

concerns do you have?

17. If you were to move to senior housing, assisted living, or a nursing home, what would make it

okay for you? Is there anything important that you would want to take or do in a different living

situation?

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End Notes

1 Lawrence A. Frolik, Promoting Judicial Acceptance and Use of Limited Guardianship, 31 Stetson L. Rev. 735

(Spring 2002).

2 Uniform Guardianship and Protective Proceedings Act (1997).

3 Bruce D. Sales, Matthew Powell, Richard Van Duizend & Associates, Disabled Persons and the Law: State

Legislative Issues (ABA 1982).

4 Supra n. 2.

5 Commission on National Probate Court Standards and Advisory Committee on Interstate Guardianships, National

Probate Court Standards (1999) (which directs probate judges to "detail the duties and powers of the guardian,

including limitations to the duties and powers, and the rights retained by the respondent").

6 Sally Balch Hurme, Current Trends in Guardianship Reform, 7(1) Maryland J. of Contemporary Legal Issues:

Guardianship 143-189 (1995-96); Frolik, supra n. 1; Mary Joy Quinn, Guardianships of Adults: Achieving Justice,

Autonomy, and Safety (Springer 2005).

7 Peggy Dervitz, Shashi Jain & Joan Kakascik, Preference/Choice/Decision: A Model for Limited Guardianship

(Guardianship Assoc. of N.J. 2003).; Peggy Dervitz, Shashi Jain & Joan Kakascik, Assessing Capacity for People

with Developmental Disabilities: Implementing the Model for Limited Guardianship (Guardianship Assoc. of N.J.

2004).

8 Supra n. 2, at § 102(5).

9 Mass. Gen. Laws Ann. ch. 201, § 6 (West 1999).

10 N.Y. Mental Hyg. Law, § 81.02(b) (McKinney 1999).

11 Ohio Rev. Code Ann. § 2111.01(D) (Anderson 1999).

12 See, e.g., Idaho Code § 15-5-101(a)(1) (1999); Minn. Stat. Ann. § 525.54, subd. 2 (West 1998); N.H. Rev. Stat. Ann.

§ 464-A:2(XI) (1999).

13 Supra n. 2, at § 314(a).

14 Charles P. Sabatino & Susanna L. Basinger, Competency: Reforming Our Legal Fictions, 6 J. of Mental Health and

Aging 119 (2000).

15 Supra n. 1, at 737-738.

16 Quinn, supra n. 6, at 133.

17 Supra n. 2, at § 312.

18 Supra n. 5, at Standard 3.3.6.

19 Michael Mayhew, Survey of State Guardianship Laws: Statutory Provisions for Clinical Evaluations, 26 Bifocal,

(newsletter of the ABA Comm'n on Law and Aging) 1 (Oct. 2005).

20 Sally Balch Hurme & Erica Wood, Now and Then: Factoids on Adult Guardianship Statutory Reform (2001)

(unpublished paper available through the ABA Comm'n on Law and Aging).

21 42 C.F.R. § 483.20.

22 See R. Kevin R. Wolff, Determining Patient Competency in Treatment Refusal Cases, 24 Ga. L. Rev. 733, 743

(1990); Barry R. Furrow et al., Health Law, §17-11 to §17-14 (West 1995).

23 Arthur C. Walsh et al., Mental Capacity (2d ed., Thompson West 1994); see also, John Parry & F. Phillips Gilliam,

Handbook on Mental Disability Law (ABA 2002).

24 Edward Etchells et al., Assessment of Patients Capacity to Consent to Treatment, 14 J. of Gen. Internal Med. 27-34

(1999)

25 Maria T. Carney, Judith Neugroschl, R. Sean Morrison, Deborah Marin & Albert L. Siu, The Development and

Piloting of a Capacity Assessment Tool, 12 J. of Clinical Ethics 17-23 (2001).

26 Daniel C Marson, Kellie K. Ingram, Heather A. Cody & Lindy E. Harrell, Assessing the Competency of Patients

with Alzheimer's Disease Under Different Legal Standards, 52 Arch Neurol. 949-954 (1995).

27 G. Bean, S. Nishisato, N.A. Rector & G. Glancy, The Assessment of Competence to Make a Treatment Decision:

An Empirical Approach, 41 Canadian J. of Psych. 85-92 (1996).

28 J.G. Wong, I.C.H. Clare, A.J. Holland, P.C. Watson & M. Gunn, The Capacity of People with a "Mental Disability"

to Make a Health Care Decision, 30 Psychol. Med. 295-306 (2000).

29 Stephen J. Anderer, Developing an Instrument to Evaluate the Capacity of Elderly Persons to Make Personal Care

and Financial Decisions (unpublished Ph.D. dissertation, Allegheny Univ. of Health Sciences 1997) (on file with

Allegheny University.

30 Daniel C. Marson, Stephen M. Sawrie, Scott Snyder, Bronwyn McInturff, Tracey Stalvey, Amy Aldridge, Anjan

Chatterjee, & Lindy.E. Harrell, Assessment of Financial Capacity in Patients with Alzheimer's Disease: A Prototype

Instrument, 57 Arch. Neurol. 877, 887 (2000)

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31 Barry. Edelstein, Margaret Nygren, Lynn Northrop, Natilie Staats & David Pool, Presentation, Assessment of

Capacity to Make Financial and Medical Decisions (Meeting of the American Psychological Association, Toronto,

Aug. 1993).

32 Patricia A. Loeb, Independent Living Scales (Psychological Corp. 1996).

33 Thomas Grisso & Paul S. Applebaum, Assessing Competence to Consent to Treatment Oxford (Oxford 1998).

34 Sally Balch Hurme, Steps to Enhance Guardianship Monitoring (ABA 1991).

35 See ABA Comm'n on Mental and Physical Disability Law & Comm'n on Legal Problems of the Elderly, Opening

the Courthouse Door: An ADA Access Guide for State Courts (ABA 1992).

36 In Shelton v. Tucker, 363 U.S. 479 (1960).

37 Proceedings in Lake v. Cameron, 364 F. 2d 657, 658 (D.C. Cir. 1966).

38 Supra n. 7, Preference/Choice/Decision: A Model for Limited Guardianship.

39 See e.g., Lawrence A. Frolik, Plenary Guardianship: An Analysis, a Critique, and a Proposal for Reform, 23 Ariz.

L. Rev. 599, 652-660 (1981).

40 See Sally Balch Hurme, Limited Guardianship: Its Implementation Is Long Overdue, 28 Clearinghouse Rev. 660,

661 (1994); Pat M. Keith & Robbyn R. Wacker, Guardianship Reform: Does Revised Legislation Make a Difference

in Outcomes for Proposed Wards? 4 J. of Aging and Soc. Policy 139 (1992).

41 Michele J. Karel, Jeanne Powell & Michael Cantor, M.D., Using a Values Discussion Guide to Facilitate

Communication in Advance Care Planning, 55 Patient Ed. and Counseling 22-31 (2004).