Purpose
Patients experiencing diminished capacity present unique challenges to healthcare settings. This guide outlines patient-centered options for adult patients in hospitals, skilled nursing facilities, and other healthcare settings who need assistance making personal or financial decisions. Guardianship is one option, but it has significant limitations. Alternatives to guardianship are a range of formal and informal options that alone or together allow someone to have their needs met without a guardian. They may be faster, more effective, less expensive, and less restrictive than guardianship. “The typical [person subject to guardianship] has fewer rights than the typical convicted felon – they can no longer receive money or pay their bills. They cannot marry or divorce. By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die. It is, in one short sentence, the most punitive civil penalty that can be levied against an American citizen, with the exception, of course, of the death penalty.” -Former U.S. Congressman Claude Pepper (FL) Exploring alternatives to guardianship is also important when a patient needs a guardian. To appoint a guardian, a court must find that alternatives to guardianship have been explored and exhausted. Alternatives can also help ensure guardianship is in its least restrictive form for the patient. A person under an unnecessary or overly broad guardianship (where a guardian has more control than is needed) can experience worse life and health outcomes and may be more vulnerable to abuse and exploitation. 1 Additionally, the associated loss of self determination can affect the person’s emotional and physical well-being, longevity, and sense of self. 2 The IDEAL Approach outlined in this guide can help you address the needs of patients experiencing diminished capacity and ensure guardianship is used appropriately.
Why is exploring alternatives to guardianship important? Because guardianship is an extreme measure that limits, and in some cases, takes away all of a person’s basic rights and liberties. Guardianship also has limits. • Guardians cannot force someone to comply with treatment or to stay in a care setting. • Guardianship does not make someone eligible for any special services or benefits. . • Guardians may need permission from the court before they can make certain decisions or act. Who should use this guide? Professionals in healthcare settings (hospitals, skilled nursing facilities, and other settings) including: • Health care providers (doctors, nurses, physician assistants, nurse
practitioners, therapists) • Medical social workers • Discharge planners • Attorneys for facilities
˜ Wright, Jennifer L., Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards in the USA, International Journal of Law and Psychiatry, Vol. 33, pp. 350–368 (2010); U.S. Government Accountability O°ce, The Extent of Abuse by Guardian is Unknown, But Some Measures Exist to Help Protect Older Adults, GAO-17-33, November 2016. ˛ Winick BJ., The Side E˝ects of Incompetency Labeling and the Implications for Mental Health Law, Psychology Public Policy & Law (1995).
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