THE IDEAL TOOL STEP 2: Evaluate Evaluate the patient’s capabilities and resources When exploring alternatives to guardianship, the focus should be on the patient’s decision making capabilities. They may be able to make some decisions but not others. The law recognizes that there are intermediate degrees of legal capacity, and that capacity is contextual – the capacity needed to select a health care agent is different from the capacity required to decide where to live. Rather than asking “Does the patient have capacity?” ask “Capacity for what?” In other words, focus on the nature of each decision that goes into addressing the patient’s identified needs and assess what the patient can do. Ensure the patient has access to any reasonable supports or accommodations they may need and ensure effective communication. See Appendix A for guidance on ensuring supports and accommodations. Be mindful of your obligations under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Maryland laws baring discrimination on the basis of disability. Screen for any temporary or reversible conditions or circumstances that may impact decision-making. If these are present, consider whether a decision can be postponed until their condition or circumstances change. Consider: • Medical conditions: Urinary tract or other infections, delirium, dehydration, malnutrition, vitamin deficiencies, traumatic brain injury, poor oral health, etc. • Pain: Chronic or acute pain • Sensory deficits: Poor vision, hearing loss, etc. • Medication: Side effects, polypharmacy • Psychological conditions: Stress, grief, depression, disorientation, etc. • Social/interpersonal factors: Family conflict, cultural barriers
Resources. To the extent a patient is unable to make their own decisions, approach the patient’s family members, friends, and other personal contacts as your partners in problem-solving. With education, coaching, and referrals to resources, they may be able help to address the patient’s needs. Some may be able to serve as a substitute decision-maker. Consider using open-source tools, databases, or private investigators to locate relatives or people who may have information about the patient’s preferences or resources. If there are conflicts among the patient’s loved ones, or if they are uncertain about which options are best, consider referring them to a mediator. Build and maintain effective working relationships with local agencies and community providers who can help you assess a patient’s needs or put needed supports and services in place. Key resources are your local Departments of Social Services (DSS) and Area Agencies on Aging (AAA) . They may be able to help you identify options for patients, assist patients and their loved ones, and arrange for services that may eliminate the need for guardianship. If guardianship is needed, any work you do with them before a petition is filed may help streamline the process and limit the scope of any guardianship. If the patient receives services from the Developmental Disabilities Administration (DDA) , work with their DDA Coordinator of Community Services or a supports planner to identify options or facilitate discussions. The local Behavioral Health Authorities can offer assistance with patients who need mental health services including addiction services. Additional resources are provided in Appendix E.
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