Limited guardianships
are perhaps the least understood and least used form of guardianship. When most
people, lawyers and laymen alike, think of guardianship, they envision a person
appointed to take care of an individual’s person and/or their estate. Once
appointed, the guardian of the person is given the power to control almost all
decisions an individual can and must make in daily life. Similarly, a guardian
of the estate is given full control over the individual’s finances and daily
spending. Because a guardianship is the imposition of an involuntary
court-appointed decision-maker, there should be a nexus between
the capacity of the ward and those rights which are transferred to the guardian
as a result of a court decree with the ultimate policy of maximizing the
feasible personal liberties of the ward. This is a limited guardianship.
In order to protect an individual’s autonomy,
there are several avenues which should be explored prior to the issuance of
even a limited guardianship. There are many circumstances where the
individual’s critical needs can be met or substantial harm to a person’s person
or property avoided through a variety of protective arrangements and
supplemental support service without the need for court intervention. These
alternative best preserve an individual’s rights. Prior to seeking court
assistance, consideration should be given to utilizing health care proxies,
durable powers of attorney representative payees, trust accounts and state and
local community services for elders and persons with disabilities including
social, rehabilitative, protective, homecare, personal, food and transportation
services, as well as health insurance and legal advisors (various information
clearing houses such as www.MassHomeCare.org,
www.800AgeInfo.com and the Office of Elder Affairs or Client Assistance Program
— both found at www.mass.gov — are helpful starting points).
Where such alternatives do not adequately assist
or protect the individual, a guardianship may be necessary. At this stage, it must
be borne in mind that a person who is placed under guardianship of their person
and estate (sometimes referred to as a “plenary guardianship”) is stripped of a
multitude of rights. This includes the right to make a multitude of daily life
choices such as decisions relating to shelter/residence, ownership or
management of real estate, the continuation and operation of a business, voting
stock, making educational elections, legal issues such as entering into a
contract or filing, pursuing or compromising a legal claim, determining
inheritance issues, retaining counsel, dealing with finances, the right to
travel, and decisions regarding medical care and/or treatment options including
end of life decisions. Because of the potential to impinge upon these individual’s
liberties, a guardianship should not be one size fits all. Simply because a
person is incapacitated in one area of his or her life should not mean that he
or she is likewise incapacitated in all others. Not only is there a loss of
liberty involved in appointing a guardian, but there is a stigma associated
with a judicial finding of incompetence, particularly when the term “mentally
ill” is applied. A guardianship may be sought for one who is determined to be
mentally ill, mentally retarded or physically incapacitated. Although most
would agree these are overly-broad categories which should be tailored even
further, they do at a minimum recognize that there are different types of
disabilities. This recognition must be expanded, not only to allow for other,
less stigmatizing categories, but to appreciate that various disabilities
differently affect an individual’s ability to meaningfully participate in
certain human rights decisions.
The limited guardianship is an alternative
avenue of providing protection to those who need some assistance but are
capable of managing certain areas of their lives. It recognizes and appreciates
that individuals with disabilities have different abilities in different areas
of life. By restricting the powers given to a guardian, the limited
guardianship promotes self-determination and autonomy by tailoring the
guardianship to allow the retention of rights and decision-making authorities
not reposed in the guardian.
Unlike other state statutes, in Massachusetts,
our statutes authorizing the appointment of a permanent guardian, namely Mass.
Gen. Laws c. 201, §6. 6A, 6B, do not explicitly require, prefer or even
expressly authorize the use of limited guardianship. See appendix
for a review of other state statutes. Nevertheless, in the seminal case of Guardianship
of Bassett, 7 Mass.App.Ct. S6 (1979), the judge having found the
proposed ward competent to handle “some but not all of his personal and
financial affairs,” ordered a “guardianship plan” be filed which included “a
statement of the particular needs, disabilities, and development potential of
the ward.” Id. at 60-61. This case made clear that a probate
court judge may exercise “powers to appoint a guardian for limited purposes and
with specified responsibilities,” Id. at 67, for someone who
is found to be “partially incompetent.” Id. at 64. n.9.
Contrast to our permanent guardianship statutes
our statute authorizing the appointment of a temporary guardian. Mass. Gen. Law
c.20l, §14(a) as amended in 1977, requires a temporary guardianship order or
decree to “indicate the nature of the emergency requiring such appointment and
the particular harm sought to be avoided, and shall state that the temporary guardian
so appointed is only authorized to take such actions with regard to the ward as
are reasonably necessary to avoid the occurrence of that harm.”
(emphasis added). The protection afforded by this provision is the requirement
that the court take the least restrictive approach to achieve its goal of protecting
the welfare of an individual. Failure to do so may result in the temporary
decree being vacated. New England Merchants National Bank v. Spillane,
14 Mass.App.Ct. 685, 690 (1982). Despite the case law and the express directive
of our temporary guardianship statute, there is still a failure from the bench
and bar to issue tailored or limited guardianship decrees. The simple fact is
that plenary temporary and permanent guardianships are ordered routinely
despite the fact that the ward retains the capacity to exercise certain basic
rights. There are a variety of reasons for this.
There are several presumptions and
misconceptions which support the preference for plenary guardianships over
limited ones, even where a limited guardianship is arguably more appropriate. A
perceived impediment to the full utilization of limited guardianships is the
concern that by limiting the powers of the guardian, there is an increased need
for court intervention by a guardian who is required to access the court in
order to expand his or her authority as the ward’s abilities diminish. In cases
where a rapid decline in faculties is anticipated, a limited guardianship may
only create a financial and emotional burden on the ward and be an inefficient
use of judicial resources. However, this is not true for the many
incapacitating conditions and disabilities which are fairly stable or progress
slowly. Those individuals under guardianship for the basis of mental
retardation may be under a guardianship for the majority of their life with
little to no change in their cognitive functioning. Likewise, certain diseases
may progress quite slowly over years without further decline. For those severe,
chronic disabilities resulting in substantial limitations in self-care,
receptive and expressive language, mobility, self-direction or those with a
continuous need for individually planned and coordinated services, limited
guardianships are not appropriate. For all others it should be a primary
consideration.
Another common concern is that a limited
guardianship will spawn unnecessary litigation over the exact scope of a
guardian’s authority, thereby requiring the guardian to return to court to
clarify his powers.1 This may be particularly true in regards to
guardianship over the person’s estate. In this day and age of businesses
fearful of liability, a guardian acting in an appropriate, authorized capacity
may be stymied in their efforts to fulfill their duties due to a lack of
understanding of the guardian’s authority. A valid concern is that the person
under guardianship will incur emotional stress from additional court
proceedings as well as unnecessary costs and fees associated with the
resolution of such misunderstandings. The latter concern is magnified where the
guardian is not a family member, but rather, a professional entitled to charge
for his or her time.
The answer to this perceived barrier is to craft
clear and unambiguous decrees which leave little room for doubt as to the
authority of the guardian and the rights retained by the ward. The guardian,
ward and all third parties who must rely upon the order should be able to
understand and interpret the decree without question. The bench and bar must
work together to mitigate the problem by producing guardianship decrees which
clearly delineate the limitations on the authority of the guardian or, in the
alternative, the decree could specify the areas of decision making retained by
the ward. Depending on how a limited guardianship decree is tailored, it could
be argued that the powers withheld from a guardian in a limited decree are not
automatically reposed in the ward. Therefore, the decree must be conspicuous.
For instance, it would be fairly innocuous to expressly reserve in a
guardianship decree the ward’s right to vote. The retention of this right made
explicit in the guardianship decree would serve to rebut the presumption
created by our laws that one under guardianship has lost such rights without
impeding the guardian’s duties in the least. See M.G.L. c.51, §51 (voter eligibility
requires the voter is “not a person under guardianship”); Guardianship
of Hurley, 394 Mass. 554 (1985) (discussing the limited nature of
the ward’s guardianship such that he had the ability to, and therefore was
entitled to register to vote).
The Probate Court judge’s ability to enter
tailored, limited decrees is directly dependent upon the information they are
provided by the practitioners. Likewise, the practitioner’s presentation of
information will necessarily depend upon the results of the medical evaluation
of the individual. Therefore, it is incumbent upon the clinicians providing the
medical certificate or the clinical team report to provide an accurate and
specific diagnosis. This is essential. The clinician’s statements not only
provide the court with an understanding of the cause of the individual’s
problems, but they clarify whether such condition is temporary or permanent,
the length of time the condition has existed, and most importantly, and whether
the condition can be treated or the effects mitigated with treatment, such as
medication, or whether the condition is expected to worsen over time.
In addition to this information, the judge must
be provided with information on the individual’s cognitive abilities in such
areas as attention, memory, comprehension, reasoning and planning. There should
be a specific focus on the person’s ability to receive and evaluate information
and make decisions based thereon. Ultimately, the judge needs to be provided
with thorough information on the individual’s cognitive and functional
strengths and weaknesses which affect their ability to remain in their current
situation or environment. Conclusory statements should be avoided, and rather,
the evidence supporting the basis for the conclusion or recommendations should
be provided to the judge with illustrations. For example, stating that the ward
has “limited understanding of finances” does not tell the judge much about the
ward’s abilities. Instead, it would be more helpful to the court to say, “The
ward understands the concepts of money and purchasing but not investing or
saving. She can go grocery shopping by herself but is easily susceptible of
being taken advantage. She would give money to anyone who told her they could
make her a lot of money if she just gave them a few thousand dollars.” Where it
is often difficult to obtain even a clinician’s general and conclusory
statements, the need for a statement which clearly differentiates between those
things an individual can and cannot do, clearly described for the court, will
be an obstacle towards obtaining limited guardianships. To avoid this dilemma,
the practitioner or the court system will need to provide the clinician with a
checklist or a fill-in-the-blank form to facilitate such statements.
Nevertheless, the burden of obtaining such clear clinician statements should
not outweigh the individual’s right to retain the right to make decisions of
which they are clearly capable.
In addition to the judges being provided with
comprehensive evaluations regarding an individual’s abilities, and until a
limited guardianship decree is promulgated, it would help the judge to be
provided with a proposed limited guardianship decree. While Practice XXXIII,
Standards for Computer Generated Forms permits the court to reject any form
which fails to comply with the standards of the practice rule, it is likely
that the court will accept an alteration of the official court form provided
such alterations are made clear on the face of the decree by use of
underlining, italicization and/or bolding of the font. The judge
must be aware that what is being offered as a standardized form has actually
been altered and the judge must expressly accept such alterations.
Finally, serious consideration must be given to
implementing periodic review of all guardianships as occurs in other states,
such as Connecticut and Pennsylvania. “The goal of effective guardianship is to
be able to restore the rights of the individual who, for whatever reason, has
had some of them removed by a court after due process. It is true that in many
instances, once a guardianship has been initiated by a court, it is in place
until the incapacitated person dies. However, an annual review and assessment
will monitor the need for maintaining or terminating a guardianship and alert
the court to a potential restoration of some or all of the incapacitated
person’s rights.” National Guardianship Association.
www.guardianship.org/pdf/guardianshipConservatorship.pdf (October, 2007).
Conclusion
The traditional judicial concern of protecting
the welfare of a ward must be balanced with the ward’s right to make decisions
for themselves and the role of the courts in that decision-making process. A
limited guardianship recognizes that a person retains the capacity to make some
basic life decisions but not others. The benign purpose of our guardianship
statutes can be effectively accomplished without trenching on the individual’s
liberties such that a person can be assisted in their life without losing their
dignity and self-determination. While the retention of rights by a ward
post-decree should be dependent upon the ward’s actual capacity, rather than
the attorney representing the petitioner or the individual probate judge
hearing the case, until limited guardianships are a mandatory consideration,
this will be the case.
The theoretical concepts of a limited
guardianship, balanced against the practical realties of a fiduciary fulfilling
his or her duties, still support the use of a limited guardianship in many
cases. A limited guardianship should be the first choice because convenience
and cost-effectiveness should not trump an individual’s decision-making rights.
Our courts are empowered to tailor the guardian’s authority to the specific
needs of the ward. Attorneys and judges not only have the authority but a duty
to specifically consider an individual’s capacity and to respect their
abilities by crafting tailored limited guardianship decrees where appropriate.
End notes
1. As
a practitioner’s note, where a limited guardianship is in place and the court
is asked to clarify the guardian’s authority, a specific finding by the court
should be made as to the ward’s ability to make a certain decision.