By Michelle Chionchio, Elder & Disability Law Clinic Student, Spring 2017
Our “legal, social and economic worlds” assume that adult individuals are able to make responsible decisions on behalf of themselves. That is, all adults are presumed to have legal capacity unless a court with proper jurisdiction deems otherwise. An “incapacitated person” is an individual found by the court to lack the mental and/or physical capacity to care for himself, including his inability to satisfy his basic health, safety, care, education, habilitation, and therapeutic needs without assistance. In such a case, a court appointed guardian may be appropriate to prevent the incapacitated person from victimization and to ensure that his best interests are accounted for.
A “guardian” stands in a fiduciary relationship with the incapacitated person, owing him the fiduciary duties of care, loyalty, and good faith. Because a guardian must act in the incapacitated person’s best interests, a guardianship may be full, limited, or temporary, depending upon the individual’s level of capacity. This is because capacity is not a “light switch”—there are shades of grey and varying degrees of capacity, which call for partial substitute decision making. That is, where an individual’s loss of capacity is not complete, the guardian’s powers should be “limited” to address solely the needs of the individual, so as not to unnecessarily restrict his autonomy. For example, if an individual’s incapacity prevents him from making major health care decisions, but he is otherwise capable of caring for himself on a daily basis, the court may appoint a limited guardian solely to make such health care decisions, leaving all other decisions up to the discretion of the incapacitated person.
“Full guardianships” are appropriate in instances where an individual’s loss of capacity is complete (that is, where an individual is incapable of making all personal care decisions for himself), but should be pursued as a last resort. Where an individual enjoys some capacity, a less restrictive method, such as the “limited guardianship,” should be used to provide the needed protections. In theory, limited guardianships recognize that the appointment of a guardian is a double-edged sword—although beneficial to the incapacitated person, it results in a severe loss of autonomy and independence. Thus, limited guardianships help to lessen the blow by curbing the infringement and intrusion into the incapacitated individual’s life. Yet, despite its apparent advantages, families are sometimes opposed to limited guardianships believing that it is “not feasible to detail the contours of the incapacity and [to] create an appropriate, individualized guardianship.” However, this belief is misguided—a medical evaluation helps to determine the degree of capacity, and a well drafted petition will outline all of the rights the incapacitated individual will retain. If the individual’s capacity should change over time, the guardian’s power may be increased or decreased as appropriate.