Journal of Gerontological Nursing

A Comparative Study: GUARDIANSHIP PETITIONS FOR ADULTS AND ELDER ADULTS

Kay Weiler, RN, MA, JD; Lelia B Helms, PHD, JD; Kathleen C Buckwalter, RN, PhD, FAAN

Abstract

In the 43 involuntary guardianship petitions filed during the 3-year period, immediate family members were the most frequent petitioners. In the adult petitions, parents (50%) were proposed guardians in half of the petitions filed. Siblings (9%) also served as potential guardians in 2 of the adult petitions. Significantly, only one spouse (5%) filed as the potential guardian for an adult named as a proposed ward. Concerned friends or relatives (18%), or individuals with an unidentified relationship to the proposed ward (18%) constituted the remainder of those who filed petitions.

In contrast, in the involuntary petitions filed for elder adult proposed wards, adult children were named in 52% of the petitions, followed by siblings (14%) and grandchildren (10%). For both groups, the immediate family generated the major source of potential guardians - although there was somewhat greater reliance on family for the elders (76%) than for the adults (64%). Identified concerned others and those of an undefined relationship comprised one fourth to one third of the proposed guardians, respectively.

For the voluntary petitions, the results differed. Immediate family infrequently served as a source of potential guardians for the adult proposed ward; a person of unknown relationship was named in five of the six adult petitions. For the elder adults, the named potential guardians were more evenly distributed between family members (53%) and those with an undefined relationship or concerned others (47%). In the standby petitions, all the petitions named an identified concerned other or someone of an unidentified relationship.

Table 4 reviews the disposition of the petitions by the court. The purpose of the guardianship proceeding is to name and empower a substitute decision maker if the individual is not capable of making decisions regarding his or her own personal care. The guardianship proceeding has generally been viewed as a beneficent proceeding, with the state assigned the role of fact finder to determine if a need for a substitute decision maker has been established (Barnes, 1988).

However, because of the magnitude of the rights being taken away, there are some elements of an adversarial proceeding when an involuntary petition is presented. The proposed ward has a statutory right to notice of the proceeding, a right to an attorney, and a right to be present at the hearing (Iowa Code, 1989). In this survey, all proposed wards under involuntary petitions (except one) received a court-appointed attorney to represent their best interests.

Guardianship proceedings have two possible outcomes: petitions that do not progress to the point of reaching the court for final action and petitions actually addressed by the court. Petitions never formally acted upon by the court were grouped into two subcategories: petitions that were dismissed through filing of a formal petition and petitions that lapsed due to unexplained reasons, termed "no activity." Two outcomes, granted or denied, are possible for petitions actually reviewed by the court.

Prior to a formal ruling by the court, the preferable legal form to tenninate proceedings is to file a formal dismissal petition. This occurred in 8 of the 68 (12%) cases, 3 adult and 5 elder adult cases. A dismissal would indicate either that the petitioner had reconsidered or the proposed ward had undergone substantial life change.

Six petitions, 4 adult and 2 elder adults, resulted in "no activity." An explanation for this outcome was found in only one petition, an adult standby, in which it appeared that the condition for activation had not occurred and no court activity was appropriate. In the other 5 records, no explanations were found for the failure of the guardianship process to continue.

Once a court reviewed a guardianship…

Professionals in all phases of health care delivery encounter individuals who need assistance in making important personal decisions. Some individuals will have planned for this need by drafting advance legal directives, such as living wills, durable powers of attorney, or standby guardianships. However, many of these individuals do not make any legal provisions specifying how typical/daily or extraordinary/critical decisions should be handled when they are not able to make informed and competent decisions.

Generally, in situations in which no advance directives exist, the only legal option remaining for the family, friends, or health care providers is a guardianship (Rosoff, 1987). Guardianships have developed from states' parens patriae power, which is the power of the state to intervene and protect those who are unable to protect themselves. Guardianships provide the legal mechanism to transfer an individual's authority (to make personal decisions) to another.

Gerontological nurses, in particular, are likely to encounter older adults who demonstrate behavior that is indicative of impaired problem solving skills for personal, financial, or health care treatment decisions. Many clients need only minimal assistance with meal preparation, bill paying, housekeeping, or personal hygiene. Others, however, have more severe impairments that endanger their own safety. Gerontological nurses are frequently called upon to assist families or friends in seeking resources that will help them provide the elder with the most appropriate level of assistance needed - including guardianships.

Prior to, during, and after the guardianship hearing, gerontological nurses are in a key position to offer significant assistance to the proposed ward, his or her family, and the court. Nurses who have long-term experience with an older adult may be in the best position to articulate their client's history of decision making in the personal or health care areas.

That history may demonstrate, for example, that the client's current behavior is consistent with his or her previous preferences for problem resolution - or may identify recent inconsistencies that have developed in the client's decision making skills. The literature indicates that nurses are becoming increasingly involved in the assessment, evaluation, and advocacy process for elder adults participating in guardianship proceedings (Morris, 1990; Nolan, 1984; Weinsensee, 1989 and 1992).

Although the importance and potential abuse of guardianships has been documented by the media (Sinclair, 1987), little research exists on the actual use of guardianships (Iris, 1988; Peters, 1985; Schmidt, 1981). The purpose of this study was to describe the individuals who need guardianships, the factors that precipitate guardianships, and the outcomes of guardianship proceedings for two populations: elder adults and adults.

This was accomplished by reviewing court records to examine the characteristics of the proposed wards involved in voluntary, involuntary, and standby guardianships proceedings; identifying the types of incapacity that precipitated the guardianship petitions for the elder adults and the adults; delineating the relationship of the named guardians to the proposed wards; and reviewing the disposition of the different forms of guardianship petitions. Based on this information, an assessment of the impact of the guardianship proceedings upon these two population groups was made.

BACKGROUND

The term "guardian" does not have a consistent meaning among the 50 states. It may describe substitute decision making for personal decisions or encompass personal and financial decisions for the ward. Therefore, the statistical reports by different states may reflect the activity of substitute decision making for personal or combined personal and financial decisions. Given the limitations of definition and state reporting practices, it is difficult to grasp the impact of the guardianship process upon the adult population.

It is estimated that 400,000 to 500,000 Americans have a guardian appointed to make their personal decisions (American Bar Association, 1990). In 1977, a federal government study of the guardianship records filed in Florida revealed that 0.056% of the population had a petition filed requesting the appointment of a guardian (Rosoff, 1987; Schmidt, 1981). This finding was confirmed by an American Bar Association study of guardianship records in six states, which reported 0.059% - one guardianship petition filed for every 1,706 persons (Axilbund, 1979).

In Iowa, prior to January 1, 1989, guardianships petitions were reported collectively with conservatorship petitions. During the 3-year study, the office of the Iowa Supreme Court Administrator reported an average of 3,748 annual petitions for the 2.8 million residents of Iowa. This represented a 0.134% filing rate - a doubling of the previously reported rate for other states.

There are relatively few devices available for substitute decision making in our legal system other than full guardianship. Although there are several case studies describing individual problems encountered in guardianship proceedings, there are few databased studies describing the role of courts in granting that the extraordinary powers of decision making be conveyed to a guardian (Friedman, 1988; Iris, 1988; Peters, 1985; Schmidt, 1981). The demographics of an older and frail population, with its presumed greater need for arrangements for substitute decision making, emphasize the need for research to assess the benefit - as well as potential difficulties - encountered in the administration of guardianship arrangements for elder adults.

Because most state court reporting systems are not computerized, information about guardianships beyond an aggregate count of the number of petitions filed in each state is not readily available. Characterization of patterns of court action in guardianship proceedings often relies on the personal review of handwritten records available in the courthouse selected for the study site. The information reported on the guardianship petitions (usually a state bar association form) must then be manually compiled, aggregated, and characterized. Only as this procedure is repeated in multiple sites can a comparative base for identifying similarities and differences in state practices regarding guardianships be established and interpreted for nurses and health care practitioners.

Guardianship statutes and proceedings are governed by state law. A discussion of individual state statutory guidelines is beyond the scope of this article. However, for the interested reader, Strauss offers an excellent chapter on guardianships and conservatorships, examples of individual state variations in substantive and procedural issues, and a table that provides comparisons and contrasts among all the state statutes (Strauss, 1990). Gerontological nurses are urged to become familiar with the guardianship statutes of the states in which they are practicing.

In Iowa, the site of this study, the law is based upon the belief that each adult has the right of self-determination in decisions that affect personal care (eg, housing, lifestyle, diet). However, when an individual "by reason of mental, physical, or other incapacity is unable to make or carry out important decisions" concerning his or her own personal or other affairs, the court may determine that the person needs a guardian appointed (Iowa Code, 1989).

Once appointed, the guardian is legally responsible for making personal and health care treatment decisions for the ward. The Iowa statute offers flexibility, and the delegation of authority may be extensive or limited to specific decisions (Iowa Code, 1989). Iowa law separates financial from personal and health care responsibilities. It assigns personal and health care treatment decisions to the guardian and reserves financial decisions to a separate court-appointed decision maker, a conservator.

Many states grant the guardian combined authority to make personal and financial decisions for the proposed ward. Gerontological nurses in states with this combined authority may be asked to assist clients and families in the resolution of problems concerning access to and ability to use the client's financial resources for the client's benefit.

In Iowa, a guardianship and conservatorship may be combined in one petition or filed separately. A guardianship authorizes decision making authority regarding only personal and health care decisions, while a conservatorship is limited to financial concerns. Without the filing of a combined petition, the scope of decision making granted by the court is limited to either personal and health care decisions or financial decisions (Iowa Code, 1989). However, this article focuses on the specific questions and issues gerontological nurses may face as they help clients and families address the issues raised only in personal and health care treatment decisions for potential wards.

In Iowa, there are three forms of guardianship, which are distinguished primarily by whether the proposed ward (ie, the individual who is giving up the right to make decisions on his/her own behalf) consents to that status. A voluntary guardianship proceeding occurs when there is no apparent necessity for a court to make a factual determination as to the necessity of a substitute decision maker. The proposed ward indicates his or her agreement by initiating the petition and naming a potential guardian.

An involuntary guardianship proceeding occurs when the proposed ward does not initiate the proceeding or challenges the petition; the court then is required by law to make a determination of incapacity. In an involuntary proceeding, an attorney must be appointed to represent the ward's interests (Iowa Code, 1989). The party initiating the proceeding is usually identified to serve as the potential guardian.

Table

TABLE 1Type ot Petition Filed According to Age and Gender of the Proposed Ward

TABLE 1

Type ot Petition Filed According to Age and Gender of the Proposed Ward

A standby guardianship is intended for a competent individual, who foresees potential incapacity but stipulates certain circumstances, such as the concurrence of two physicians that he or she is no longer able to participate in personal or health care decisions, which trigger the establishment of a voluntary guardianship. The standby guardianship enables an adult to specify future indicators of incapacity, which should be used to trigger the request for a guardian. Despite differences in the method of establishing a guardianship, the named guardian, once appointed, bears the same responsibilities for the care of the ward (Iowa Code, 1989).

METHODOLOGY

This study was designed to examine the use of guardianship petitions in Iowa for adults. The study involved a retrospective review of all the guardianship records in Johnson county, Iowa, for 1986, 1987, and 1988. According to the 1990 census, Johnson county is a standard metropolitan area with a population of 96,119. The county ledger, a handwritten document, identified 138 petitions that involved a guardianship during the 3 years. The file for each guardianship petition was reviewed for the type of petition filed, the age and gender of the proposed ward, the reason cited for the proposed guardianship, the relationship of the petitioner to the proposed ward, and the court's disposition of the petition.

FINDINGS

Of the 138 records reviewed, 65 petitions were filed on behalf of children (Weiler, 1992). Because this study involved only guardianship petitions for adults, the petitions for minors were deleted, as were five petitions for which no age was specified. This study focused on the 68 petitions identified for proposed wards over 18 years old. Proposed wards 18 to 64 years old were categorized as adults, and proposed wards 65 years old and older were classified as elder adults.

In reviewing the relationship of the number of guardianship petitions filed, it must be noted that, in Iowa, standby petitions may be filed with the clerk of court or may be given to a trusted friend or family member for safekeeping (Iowa Code, 1989). This statutory system is designed to enhance an individual's flexibility in holding the documents prior to the time of potential activation. The data reported herein included only standby petitions filed as public documents. Because standby petitions held by private parties are not in the public domain, the actual number of standby petitions drafted during the 3-year period in anticipation of potential incapacity could not be determined.

Table 1 identifies the three basic characteristics of concern in this study: age, gender, and type of guardianship. There was little change in the number of guardianship petitions filed over the 3-year study period. Collectively, 39 (57%) named elders as proposed wards. The remaining 29 (43%) named an adult as the proposed ward. Although the actual number of petitions for elder adults did not vary greatly, the proportion of petitions for elders varied from 46% (11 petitions) in 1986 to 77% (15 petitions) in 1988.

Table

TABLE 2Reasons Stated for the Guardianship Petitions

TABLE 2

Reasons Stated for the Guardianship Petitions

When analyzed by gender, the data from the 3-year period identified filings on behalf of 34 males (50%) and 34 females (50%). However, when gender was viewed in relation to the age of the proposed ward, there were important differences. For wards classified as elder adults, 12 of 39 petitions (31%) were for males, whereas 22 of 29 (76%) adult petitions involved males. The proportion of women rose substantially; 24% of adult petitions versus 69% of the elder adult petitions.

Analysis of the type of petition filed also provided information about the person(s) who identified the need for the guardianship. Voluntary petitions comprised 21 (31%) of all petitions filed during the study period and involuntary petitions constituted 43 (63%) of all filings. The annual data, however, illustrated wide shifts in these proportions. Four (6%) standby guardianships were filed.

Further analysis of the type of guardianship petition illustrated some variation in reliance upon different forms by age. Among adults, 22 (76%) of the petitions filed were involuntary, while 6 (21%) were voluntary. Among the elder adults, the proportion of involuntary petitions fell to 21 of 39 (54%) but increased to 15 of 39 (38%) for voluntary petitions.

The number of standby petitions rose from 1 (3%) to 3 (8%) between the adult and elder adult populations, although these numbers are too small to provide any direct evidence on the role of standby guardianships. Gender would appear to have little effect upon the form of the guardianship petition, given the increasing number of women subjected to these proceedings as they age.

Iowa Code requires that each guardianship petition include a statement identifying the factors that give rise to the need for the appointment of a guardian. These statements describing the proposed ward's incapacity formed the categories for identifying the behavior or infirmity precipitating the need for a guardian (Table 2).

Boilerplate Language

The statutory language "... unable to make or carry out important decisions ..." was recited in one half of all types of petitions, including involuntary, voluntary, and standby; 11 (38%) petitions for adults; and 24 (62%) petitions for the elder adults. All records using this "boilerplate" language included no additional clarifying explanation. Furthermore, according to the written record, no other evidence or functional assessment was requested by the court.

Table

TABLE 3Relationship of Petitioner to Proposed Ward

TABLE 3

Relationship of Petitioner to Proposed Ward

The remaining petitions provided specific comments to convey why the proposed ward could not care for himself or herself. For adults under 65, reasons included mental retardation, mental illness, and accidental injury. For the elder adults, reasons included mental retardation; alcoholism; confusion, dementia, or Alzheimer's disease; and physical disability.

All the identified reasons appeared to be consistent with the intent of the involuntary guardianship provision, which provides a substitute decision maker for those who are incapable of making decisions for themselves. However, upon scrutiny of the voluntary petitions, 4 of the 21 petitions (19%) identified the specific cognitive impairments of mental illness or mental retardation as the reason for the guardianship. This raised the serious question of whether one who designated himself or herself as cognitively impaired had the statutory or functional mental capacity to abandon his or her basic legal rights voluntarily.

The standby petitions that identified that the person was unable to care for himself or herself, or had confusion or dementia, did not present this apparent inconsistency. The standby petitions were written while the individual was competent, held by a trusted friend or family member, then became effective upon the occurrence of the predetermined criteria. Therefore, it was expected that the competent individual would identify some form of incapacity as the triggering event that would initiate the need for the standby guardianship.

Table 3 identifies the relationship of the individual named as the future guardian to the proposed ward. In proceedings involving standby and voluntary guardianship petitions, the petitioners personally identified the need for a substitute decision maker and designated their potential guardian. In an involuntary proceeding, the petitioner/ potential guardian claimed that the proposed ward was not capable of making personal or health care treatment decisions and needed a legally appointed substitute decision maker.

It is important to note that there is no public guardianship system in Iowa. All the proposed guardians must be individually recruited to serve as guardian for a specific individual. Therefore, the authors assumed that for cases in which no relationship was stated (any petitioner classified as having an unidentified relationship with the ward), the petitioner personally knew and was willing to serve as guardian for the proposed ward.

Table

TABLE 4Disposition by Age and Type of Petition

TABLE 4

Disposition by Age and Type of Petition

In the 43 involuntary guardianship petitions filed during the 3-year period, immediate family members were the most frequent petitioners. In the adult petitions, parents (50%) were proposed guardians in half of the petitions filed. Siblings (9%) also served as potential guardians in 2 of the adult petitions. Significantly, only one spouse (5%) filed as the potential guardian for an adult named as a proposed ward. Concerned friends or relatives (18%), or individuals with an unidentified relationship to the proposed ward (18%) constituted the remainder of those who filed petitions.

In contrast, in the involuntary petitions filed for elder adult proposed wards, adult children were named in 52% of the petitions, followed by siblings (14%) and grandchildren (10%). For both groups, the immediate family generated the major source of potential guardians - although there was somewhat greater reliance on family for the elders (76%) than for the adults (64%). Identified concerned others and those of an undefined relationship comprised one fourth to one third of the proposed guardians, respectively.

For the voluntary petitions, the results differed. Immediate family infrequently served as a source of potential guardians for the adult proposed ward; a person of unknown relationship was named in five of the six adult petitions. For the elder adults, the named potential guardians were more evenly distributed between family members (53%) and those with an undefined relationship or concerned others (47%). In the standby petitions, all the petitions named an identified concerned other or someone of an unidentified relationship.

Table 4 reviews the disposition of the petitions by the court. The purpose of the guardianship proceeding is to name and empower a substitute decision maker if the individual is not capable of making decisions regarding his or her own personal care. The guardianship proceeding has generally been viewed as a beneficent proceeding, with the state assigned the role of fact finder to determine if a need for a substitute decision maker has been established (Barnes, 1988).

However, because of the magnitude of the rights being taken away, there are some elements of an adversarial proceeding when an involuntary petition is presented. The proposed ward has a statutory right to notice of the proceeding, a right to an attorney, and a right to be present at the hearing (Iowa Code, 1989). In this survey, all proposed wards under involuntary petitions (except one) received a court-appointed attorney to represent their best interests.

Guardianship proceedings have two possible outcomes: petitions that do not progress to the point of reaching the court for final action and petitions actually addressed by the court. Petitions never formally acted upon by the court were grouped into two subcategories: petitions that were dismissed through filing of a formal petition and petitions that lapsed due to unexplained reasons, termed "no activity." Two outcomes, granted or denied, are possible for petitions actually reviewed by the court.

Prior to a formal ruling by the court, the preferable legal form to tenninate proceedings is to file a formal dismissal petition. This occurred in 8 of the 68 (12%) cases, 3 adult and 5 elder adult cases. A dismissal would indicate either that the petitioner had reconsidered or the proposed ward had undergone substantial life change.

Six petitions, 4 adult and 2 elder adults, resulted in "no activity." An explanation for this outcome was found in only one petition, an adult standby, in which it appeared that the condition for activation had not occurred and no court activity was appropriate. In the other 5 records, no explanations were found for the failure of the guardianship process to continue.

Once a court reviewed a guardianship petition, however, the outcome was clear. No petition for any age group or any type during the 3-year study period was denied. The critical factor in determining the outcome of the guardianship proceeding would appear to be whether or not the petition reached the stage of actual review by a court. There appeared to be only slight differences in the rate at which petitions by adults (76%) and elders (82%) reached review by the court.

DISCUSSION

Information regarding the operation of guardianship proceedings is limited. However, the dramatic impact of the guardianship determination upon the individual's right of self-determination is well documented (Barnes, 1988; Pepper, 1987). Even though the Iowa statute provides for limited guardianship powers, only two of the guardianship records examined incorporated some limitation on the duration or extent of the guardian's authority.

In practice, plenary guardianships are standard. The increased rate of guardianship filings reported for Iowa may be idiosyncratic and represent only the higher proportion of elder adult residents of the state. The rate also may point to an increased demand by nurses, physicians, social service providers, and housing managers that adults and elders with impaired decision making capacity must have established legal substitute decision makers to facilitate the delivery of services.

Research on legal proceedings provides important information about who seeks guardianships and why, and what degree of scrutiny and protection the courts provide for those in potential need of a substitute decision maker. Even though this study reviewed the impact of guardianship petitions upon adult and elder adult persons in only one county, the initial finding that children constitute a substantial proportion of the proceedings was unexpected because the literature has focused on the use of guardianships for the elderly (American Bar Association, 1990; Schmidt, 1981).

The county had 19,347 children according to the 1990 census, which comprised 20% of the total population. The county also had a large teaching hospital that served children and adults from throughout the state. However, there were no public or private children's group homes or special public services offered specifically to children.

The findings related to gender confirm basic demographic patterns. The distribution of younger men and older women among the various types of guardianship petitions may reflect that women live longer than men. Additionally, it may reflect that adult men have a greater tendency to participate in risk taking behavior that results in physical injury and creates a need for a substitute decision maker in their younger years.

The proportion of voluntary petitions filed for the adults and elder adulte points to some problems with the provisions for establishing guardianships. Voluntary petitions constituted 31% of the guardianship petitions filed. Although this may be perceived as a failure of adults and elders to avail themselves of the opportunity to initiate the process and name their guardian, it also may be viewed as a warning that persons of limited capacity may be voluntarily abandoning rights.

In reviewing the use of voluntary petitions, it is important to recognize the circuitous reasoning involved in the voluntary guardianship petition. In the voluntary petition, it is presumed that the proposed ward is competent to discern that he or she is no longer capable of making or implementing decisions regarding personal care. Upon reaching this conclusion, the adult or elder attests to that current perception of incapacity and initiates the voluntary guardianship process. This circular reasoning assumes that one has the rational capacity to say one is incapacitated.

Ascertaining Voluntary Status

Furthermore, under the Iowa statutory scheme, no attorney is appointed to ascertain that the proposed ward's decision is indeed voluntary. These reasons may explain, in part, the limited use of the voluntary petition. However, it also requires close scrutiny of the way in which courts monitor these proceedings. The fact that four of the voluntary petitions identified conditions of mental incapacity as the reason for the proceeding generates strong doubts about the role of the court in monitoring these proceedings. In at least these cases, based upon a review of the records, the courts did not scrutinize the facts.

Because of the statutory scheme for private recording, the low frequency of public filing of standby guardianship petitions is of unknown significance. It may indicate that this option is not well known or that other planning tools have been used (eg, living will, durable power of attorney, and durable power of attorney for health care). Alternatively, the low number of standby petitions may indicate that those who anticipate future incapacity prefer to have their standby petitions held by a private attorney, trusted friend, or family member and these documents are therefore not available for public review.

The forms of incapacity that precipitated the need for a guardianship differed according to the age of the proposed ward. For adults, mental retardation or developmental disabilities and devastating injuries were predominant. Upon analysis of the adult accidental injury group, it was significant to note that all the adults in the accidental injury group were male. These categories and the public records, however, did not offer any functional evaluation of the proposed ward's cognitive ability. Only 38% of adult petitions employed legal boilerplate language.

In contrast, reliance on legal boilerplate language in the recitation of the reasons for guardianship proceedings occurred in 61% of petitions filed for elder adult proposed wards. This may reflect the petitioners' recognition of the minimum requirements of the statute; or the recitation of the statutory language may reflect societal and judicial assumptions that advanced age is equivalent to incapacity to care for oneself, and that no additional explanation is necessary. The paucity of information stated on the petition, combined with the recitation of the statutory criteria, confirm the problems associated with the use of conclusive statements as the basis of decision - rather than the systematic professional assessment of cognitive function (Casasanto, 1986; Nolan, 1984; Scogin, 1986).

Demographic data describing the relationship of the named guardians to the proposed wards in guardianship proceedings is scarce (Schmidt, 1988). This study confirmed the large role that immediate families play in extending assistance when necessary (Friedman, 1988).

As proposed wards aged, the person occupying the role of guardian changed. However, the finding that one third to one fourth of the guardianships were assigned to a nonrelative provides important information about who serves as guardian, especially in a state that does not have a public guardianship system.

The study results indicated that spouses did not step forward as potential guardians for an incapacitated adult or elder adult. The reasons for this lack of response by spouses are unclear. Unfortunately, the Iowa guardianship records did not require, and therefore did not record, the proposed ward's marital status. Therefore, no information was available to indicate whether the proposed wards were married, single, widowed, or divorced, and consequently, whether the proposed ward had a spouse available to assume this responsibility. If the proposed ward were married, there was also no data regarding the spouse's physical or cognitive capacity to care for the proposed ward.

This study found that 79% of all petitions survived to the stage of review by the court, and all these (100%) were approved. It appears that persistence may be the factor that determines whether the petition is granted or denied. Once addressed by the court, approval seems ensured.

This finding points to two issues. First, within the study period in this county, dismissals offered the only effective and appropriate mechanism by which individuals were able to oppose the process. The records involving dismissals generally indicated that the proposed ward verbally objected to the proceeding and this objection triggered a reassessment by the petitioner, resulting in a dismissal prior to hearing.

Second, some slippage in the way in which the courts track the information on these proceedings is apparent. Court records failed to record any continued activity in 9% of all petitions filed. In addition, the court failed to appoint an attorney for a proposed ward in one involuntary petition. At the least, this study documents that 10% of all petitions fell through the cracks of this judicial system.

Finally, the court approved four voluntary guardianship petitions that clearly indicated that the proposed ward had questionable cognitive capacity.

IMPLICATIONS FOR NURSES

The premise of guardianship statutes is, in some situations, that individuals need assistance with decisions regarding personal care. Many statutes do not carefully define the criteria that lead to the need for assistance or the type of evidence required to meet these criteria. This study lends support to the concern that once a formal assertion of incapacity has been made, little if any evidence of functional capacity is required, and that a court may routinely grant this type of petition.

Some states require that a health care professional (including gerontological nurses) with special training assist in an evaluation of the proposed ward's functional and cognitive abilities. However, others have no requirement or expectation that a professional assessment will be conducted to assist in the determination of the need for a guardianship. As noted earlier, gerontological nurses must be knowledgeable of the statutes of the state in which they are practicing. More continuing education programs for nurses must be devoted to the topics of guardianships, conservatorships, and assessment of functional and cognitive capacity.

When the question of decision making capacity arises in other contexts, nurses have taken an active role in developing and validating assessment instruments for evaluation of the patient's functional ability (Morris, 1990). Assessment tools have been developed to examine the gerontological client's physical and cognitive function, ability to perform activities of daily living, basic values and beliefs regarding personal choices, and supportive family or community services (National Institute, 1988).

Nurses also are developing and testing instruments, such as the Incompetency Assessment Scale, which clarify the criteria that guardians perceive as important indicators of the diminished decision making capacity of the ward (Weisensee, 1992). Gerontological nurses must continue to take an advocacy role with regard to evaluation of the elder's capacity, and most especially to ensure that guardianships are reserved for those for whom they are both necessary and appropriate.

This study expands our knowledge about the characteristics of guardianship proceedings in several ways:

* Although adult and elder adult men and women shared equally the need for a guardian, men demonstrated a greater need in their adult years, while women demonstrated their need for decision making assistance primarily in their elder years;

* Voluntary guardianships are being used by the elderly more frequently than by the younger adults and for those with mental illness, retardation or confusion, and raises questions about all these practices;

* The primary group from which nurses and other health care providers may draw for potential guardians comes from within the family, with the exception of the spouses, while one third to one fourth of those who serve have no direct family ties; and

* The manner in which the courts administer guardianship proceedings - and the potential for petitions to disappear or individual rights to be overlooked - must be examined further.

In summary, this study provides a review of guardianship proceedings for adults and elder adults. Unfortunately, it confirms concerns expressed in the literature regarding the potential for abuse. In addition, it questions the actual care with which the court may scrutinize these petitions. Finally, it suggests that serious consideration should be given to informal mechanisms of substitute decision making before resorting to the legal system for the establishment of a guardianship.

REFERENCES

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  • Strauss, P.J., Wolf, R., Shilling, D. Aging and the Law. Chicago: Commerce Clearing House, 1990; 373-443.
  • Weiler, K., Helms, L.B. Who's in charge? Guardianships and children. The American Journal of Maternal/Child Nursing 1992; 17(5):232-235.
  • Weisensee, M.G., Kjervik, D.K. Dilemmas in decision making for caregivers of cognitively impaired elderly persons. J Prof Nurs 1989; 5(4):186-191.
  • Weisensee, M.G., Kjervik, D.K., Anderson, J.B. Retrospective analysis of guardian's perceptions of cognitively impaired elderly. J ProfNurs 1992; 8(2):73-79.

TABLE 1

Type ot Petition Filed According to Age and Gender of the Proposed Ward

TABLE 2

Reasons Stated for the Guardianship Petitions

TABLE 3

Relationship of Petitioner to Proposed Ward

TABLE 4

Disposition by Age and Type of Petition

10.3928/0098-9134-19930901-06

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