Guardianships for Medical Decision Making

Guardianships may be used to provide for incapacitated persons in a variety of ways. One of the most common uses of guardianship is to establish a legal decisionmaker for an incapacitated patient, usually in the inpatient setting. The petitioner in such medical guardianship cases may be the Department of Human Resources (DHR), an interested person such as a family member or friend, or a hospital or other health care institutional provider (skilled nursing facility, assisted living facility, etc.) – essentially any “interested person.”3 Although these guardianship petitions are filed most commonly when advance planning for health care has not been completed (advance health care directive, health care power of attorney, etc.), there may be also be a need when a physician or medical facility cannot resolve disputes between those claiming surrogate authority, have serious doubts about the legal or ethical exercise of that authority, or simply cannot resolve between competing surrogates whose authority to recognize and follow.

Elder law attorneys can find themselves representing any number of parties in such proceedings or serving in several distinct roles, including the following:
• Attorney for the petitioner (interested person, medical facility, DHR, or other)
• Attorney for the respondent (the proposed ward)
• Guardian Ad Litem (representing the best interests of the respondent)
• Attorney for an Intervenor (perhaps seeking to be named guardian)

Each of these roles has a slightly different goal for their guardianship representation. Exploring the best strategies and most common issues facing attorneys representing these different parties is beyond the scope of this presentation. Needless to say, however, these cases pose some common issues for all attorneys involved, regardless of the party they represent. The purpose of this presentation is to identify how such matters end up as contested guardianships, to examine the role of the Court in establishing a guardian as the surrogate decision-maker for an incapacitated patient, to discuss the required proof necessary to prove that a patient is incompetent to make medical decisions and the most
common instruments used to measure that incapacity, and finally to discuss whether the use of a guardian is the best and most effective way to make medical decisions for an incapacitated patient. Finally, the article closes with a  discussion of the steps elder law attorneys might take to reduce the necessity for guardianship when a surrogate medical decision-maker is needed.