Journal of Gerontological Nursing

GUARDIANSHIP: A Serious Step As A Last Resort

Abstract

Once a person has been adjudicated incompetent, they are without their rights to do many things. Guardianship is a very serious step to take.

Abstract

Once a person has been adjudicated incompetent, they are without their rights to do many things. Guardianship is a very serious step to take.

The American Heritage Dictionary, Second College Edition, defines "guard" as "To protect from harm or danger, especially by careful watching; keep secure." In Orlando, Florida, The Orange County Citizens Advisory Council on Aging, Incorporated, began a guardianship program. The idea started on a local level in 1983, to meet the needs afa growing aged population in southern Florida. The Journal of Gerontological Nursing talked with Judith Hilchuk, BA, BSN, BSW, director for the East Central Florida Regional Planning Council, Area Agency on Aging; Alvin Knight, executive director for the Council on Aging, Incorporated; Deborah H. Jones, program director; and Rayetta Beaver, MSW, planning director, United Way of Orange County; about this innovative program, in August, 1984.

JGN: Would you define "guardianship" as it applies to your program?

Response: Guardianship is when the court lawfully invests an individual or an agency with the power and the duty of taking care of an individual and managing the rights of that individual, who is incapable of handling his/her own affairs.

JGIM: What do you mean by "incapable?"

Response: Incompetent, either due to emotional and/or physical disorders. They are unable or cannot intelligently handle their affairs or they are not willing to do so, to the extent that they are in jeopardy.

JGN: In relation to the term "incompetent," the public perceives that as a mental state, but what if a person were severely handicapped - physically. What if they were immobile? Could they still be declared "incompetent" by virtue of the fact that they could not get around to the various agencies for help necessary for their survival?

Response: Right. They must be incapable of caring for themselves. If they are mentally alert they can make their needs and wants known to the caretakers or guardians but cannot actually conduct the business necessary to accomplish them.

JGN: When did the idea for this program develop?

Response: It started on a local level about a year ago (1983). We had the possibility of state legislation mandating that people could not be admitted to a nursing home unless they had a guardian. This was because too many homes had had problems with patients who were indigent and incompetent. The nursing homes could not make any decisions on the patients' behalfs. The legislation did not occur, but it raised our consciousness about the existing problem.

Health and Rehabilitative Services in Florida was also having a problem with clients living in hovels. These people had become incapable of making their own decisions due to their age, physical disabilities and/or mental disabilities. HRS cannot assume guardianship for them and there was no one else willing to take the responsibility so we had some real concerns. United Way was brought into it.

We did an assessment in this fourcounty area and it showed, significantly, that this was an increasing problem. In southern Florida we have an increasing aging population, not just in sheer numbers, but in average age - 75 years and older. After meeting with representatives from several agencies who showed interest in the program, we met with an attorney and looked at proposals for providing this service.

One of the problems was to determine what kind of guardianship program we wanted. There were several models in the state of Florida and we looked at some of those. We tried to put together a package that would use two types of models - that of all professionals, as done in one program, and that of using volunteers, as in another program we surveyed. Ours is a combination program devised by the Council on Aging, using a social worker to do the assessment, a local attorney from Legal Aid to do some of the legal aspects of this, and then using recruited volunteers to be the guardians of the clients - people who could help out in those activities of daily living and dealing with agencies while the Council would assume the actual guardianship.

A funding partnership was established between the United Way, the Bush Charitable Foundation and the Area Agency on Aging.

JGN: Were the models you examined already functioning in other cities?

Hilchuck: Yes. They were models in Miami, Dade County, a large professional program, and the volunteer program was in St. Petersburg. The volunteer program was just getting off the ground when we began to look at it and was not as established, at that time, as it had appeared.

JGN: How many guardians and clients are involved in the program at this time? (August. 1984)

Jones: Right now we have five clients for whom we have been appointed guardians. We antic/pate assuming guardianship of two others by the end of this month. We also have ten other referrals that I am in the process of assessing, or that we are awaiting information for, or for whom we have not yet had the conference to make decisions.

J. HILCHUK

J. HILCHUK

D. JONES

D. JONES

A. KNIGHT

A. KNIGHT

R. BEAVER

R. BEAVER

JGN: What are the qualifications of a guardian? We understand the qualifications of the professionals involved, by virtue of the licenses they hold, but what about the volunteers?

Jones: I am presently doing all of the recruiting and training of the volunteers. The qualifications are related to their specific abilities, a sincere desire to relate to the elderly a working knowledge of the needs of the institutionalized elderly. It should be someone who is patient, who feels comfortable working with an individual who has emotional and/or physical disorders. We're also conducting character reference checks on all applicants, done through a mail-out questionnaire.

JGIM: You mentioned institutionalized elderly. It was our impression that the purpose of the program was to help the elderly maintain themselves in their homes. Is this a misconception?

Jones: If it is possible, we do strive to maintain them at home. However, many of these individuals are frail, medical patients and require nursing home care on a 24-hour basis, or else they are placed in a retirement home - an adult living facility, where personal care services are provided and they can get assistance with activities of daily living. If we can acquire and secure supportive services to maintain them in their homes, then we do that.

JGN: Is it more expensive to maintain them at home?

Jones: I imagine it is, although we have not yet encountered that situation with our current client roster.

JGN: There are different types of abuse of the elderly of which financial abuse is one. How do you determine whether or not a potential client, listed as indigent and incompetent, is not, in fact, a victim of financial abuse by some other relative or guardian?

Jones: That could be one of the concerns. It could be the basis for taking guardianship, for having the individual declared incompetent. I've heard of these situations although we have not been involved in one, to any degree.

JGN: What system of checks and balances is there for the monies belonging to the clients that are tended by the Council?

Knight: There are checks and balances on their money, of course. All of the checks for expenditures are written in the home office of the Council and require two signatures, either mine and an officer or one of the board members and an officer. All specs for the expenses being incurred will be discussed before the expenditure is authorized. The volunteers are out there doing the leg work and bringing the situations where money is needed to our attention.

JGN: Are the agents and volunteers bonded? For what amount?

Knight: The Council on Aging is bonded, I think for an amount of from S 100,000.00 to $500,000.00.

JGN: To what extent are nurses involved in this program? Would a nurse ever be appointed as the professional on the case instead of a social worker, for assessment purposes?

Jones: I've had quite a few nurses who expressed interest in being volunteers, but most are already out of the field of nursing and just like the one-to-one contact with the elderly.

Knight: They wouldn't be staff, if that is your question. Currently there is no member of the staff that is a nurse.

JGN: When you get a referral and it requires an assessment on the physical and mental capabilities of a potential client, who does the assessment?

Jones: We require the referring source to provide us with a certain amount of information - right now it is about eight to ten pages of information - one form of which outlines the client's areas of function, activity level, diet, and social level.

JGN: The referring source could be a family member who thinks the client is incapable but an outside assessment by a nurse, for instance, could determine that the capability is there. How do you validate claims may by lay referral sources?

Jones: When we have the information in front of us, part of the assessment is to verify what is on the paper history. It usually involves going out to an on-site visit with the individual in the living circumstances and contacting collateral people. If it is a hospital situation, there are nurses available for consultation. In the home environment, if the social worker tells us that the individual is being seen by, say, the Visiting Nurses Association, then we would contact them for further information.

Beyond this point, the court has a psychiatric evaluation team that goes out to see the individual. This is done when the petition is filed to determine competency of the individual. In Florida, the court team is usually two psychiatrists and a nurse, and sometimes a fourth individual.

JGN: Do you see nurses becoming more involved in the professional evaluation and the assessment aspect in the future with this program?

Jones: In hospital situations, yes, they are directly involved.

Knight: At such time as there would be sufficient money to indulge ourselves the luxury of such professionals on the staff, then, yes, nurses would be a tremendous asset. But when you are trying to make use of the facilities and organizations already in use . . .

JGN: I am asking with relation to the visiting or home health care nurses. They are not necessarily involved with the hospitalized patients.

Jones: I have been out to tell them about this program and they said. "If you see a situation that you feel our services may be of help with, please call us."

Hilchuk: I don't quite know why, but in terms of gerontological nurse practitioners, and gerontological nurses we, in Florida, have not yet reached a point where these nurses are a prevalent force. We don't hear a lot about these nurses yet. I see that happening in the future though.

JGN: Have DRGs had an impact here in Florida yet that would affect your program?

Hilchuk: DRGs have had an impact here. Individuals are being returned to their homes sooner, and sicker, than in the past. Home care is a moving force of our future and having gerontological nurse specialists, especially for assessment, would be one of the ways to deal with that. We really don't have any state universities that are turning out gerontological nursing specialists, to my knowledge. Without those programs, we don't pay enough in the state of Florida to attract people in those professions down here unless they already happen to be here.

JGN: What does it take to make this guardianship program work?

Knight: We need guardianship status of both the person and the personal property, in most instances, to whatever degree there is property. Right now, if we were to find out that there is an extensive amount of personal property, the Council would be rather reluctant to pursue the guardianship because of the change from indigent status. In order to provide some of the personal services for the individual, there has to be some token property, maybe even $1,500.00 to $2,000.00 that enters into the picture, yet is not enough to cause confusion.

JGN: What was the base line funding for this program at its inception?

Knight: The amount was just about equal thirds of $15,000.00 for each member of the funding coalition, or about $45,000.00, total.

JGN: What problems were encountered in setting up this program?

Jones: Time delays have really been a big problem. I am amazed at the amount of time required to get things done and get into the system. This program is so unique - it's never been done before - and some of these procedures have been carried on for years within other agencies. There was never a need to change the systems before, and now we're talking about coordinating efforts to meet common objectives.

One of the biggest problems we ran into was with the circuit court. When you file a petition to determine someone's competency, the court requires that you put so much money up and that you pay court costs and examining fees. The problem lies in that we have no authority to verify an individual's income or what the assets are before we obtain guardianship. We can't go to the bank to ask about an individual's account so we may assess the level of indigency and, therefore, eligibility for our program. We couldn't get the information and the court was saying we had to put the money up, in advance, before we could file the petition.

JGN: What did you do to solve the problem?

Jones: I brought a letter to the director of the Legal Aid Society requesting his assistance in resolving the matter. I suggested that we set up a procedure with the circuit court that, in these circumstances, lacking verifiable information about the income and assets, the court waive the fees until after the adjudication, when the Council has been appointed guardian and can verify that information. That worked real well, but it took a long time.

Another problem we faced was in the recruitment program. The volunteers were very enthusiastic once they had completed the training program ana were anxious to be assigned to an individual. It meant that we had anywhere from two to five people interested but no clients for their assignments, at that time. The pacing of the program was at fault there. Some of those involved, but not assigned, dropped out but others stuck with us. Now we tell them it may take weeks before they are assigned and they should be aware of this. It takes a very special person to be a good volunteer for this program.

Hilchuk: The volunteers need to recognize some of the realities of the situation. They need to know that not all clients are going to be sweetnatured. Some may be nasty or abusive. The volunteers need to understand that from the beginning and yet still feel that commitment to assista human being who needs help, maybe without gratitude from the client. The hardest part of this phase is matching the right volunteer to the right client.

JGN: Is a policy manual being written for this program?

Jones: I would hope to write one, but up to this point . . .

JGN: If our readers wanted more information about setting up a program such as yours in their states, what wouJdyou have for them to look at?

Hllchuck: We have a proposal written up explaining the theory and how it will operate. It also documents the problems encountered, things that were done to resolve them, etc.

JGN: Have you established a goal for, say the next five years, in terms of the size of the program?*

Jones: I haven't been able to think that far in advance yet, in terms of growth. It is important that we don't grow too fast, that we get established strongly first. We want to keep this program for the indigent, for those individuals with no other alternatives.

All alternatives should be explored. Guardianship should only be pursued as a last resort. Once a person has been adjudicated incompetent, they are truly reduced to the status of a child.. In Florida, they cannot marry, they cannot write a will, they cannot drive a car, they cannot vote, they cannot sign any contracts. That is a very serious action to take.

10.3928/0098-9134-19850301-13

Sign up to receive

Journal E-contents