The Fundamentals of Guardianship

Sally Hurme is an elder law attorney and author. While with AARP for 23 years she worked on a wide variety of issues including advance care planning, surrogate decision making, consumer fraud, elder abuse, and financial security. Ms. Hurme was an advisor to the Uniform Law Commission in the drafting of the uniform guardianship jurisdiction act and Uniform Guardianship, Conservatorship and other Protective Arrangements Act. She also was a member of the U.S. State Department delegation that drafted the Hague Convention on the International Protection of Adults. She has authored 20 law review articles and book chapters on various elder law issues and taught elder law at George Washington University Law School. She is author of the ABA/AARP Checklist series: Checklist for My Family, Checklist for Family Survivors, Checklist for Family Caregivers, Get the Most Out of Retirement, and Wise Moves. She received her law degree from the Washington College of Law at American University, Washington, D.C., and her bachelor's degree from Newcomb College, Tulane University in New Orleans. Sally currently lives in Bridgewater, VA.

CONTENTS




Introduction vi




Acknowledgments viii




Ways to Avoid the Need for Guardians 1

Advance Directives 1

Durable Powers of Attorney 2

Health Care Directives 2

Living Wills 3

Health Care Powers of Attorney 4

Health Care Surrogate Acts 4




Guardianship Initiation 5

Petitioning 5

Prehearing Process 6

Hearing Process 6

Guardian Qualifications 7

Authority to Act 8

Due Process Rights 8




Guardians Make Decisions 10

Guardian as Surrogate Decision-Maker 10

Decision-Making Process 11

Informed Consent 12

Decision-Making Standards 13

Person-Centered Decision-Making and Planning 13

Substituted Judgment 14

Best Interest 14

Least Restrictive Alternatives 15




Guardians Are Fiduciaries 16

Fiduciary Relationships 19

Guardians’ Relationships with Family and Friends 19

Guardians’ Relationships with Other Professionals and Service Providers 20

Guardians’ Relationships with the Court 20




Guardians of the Person 22

Assess Needs 23

Assess Functional Abilities 23

Give Informed Consent 24

Promote the Person’s Well-Being 25

Advocate for the Person 25

Know the Person 26

Create Care Plans 27

Monitor Care and Treatment 28

Develop Communication Skills 28

Use Available Community Resources 29

Assist with Finances 29

Determine Residence 30

Address Behavioral Problems 31

Monitor Medical Status 32

Make Medical Treatment Decisions 33

Invasive Medical Procedures 35

Withholding and Withdrawing Medical Treatment 36

Physician Orders 36

Final Arrangements 37




Guardians of the Estate 38

Center on the Person 39

Marshal the Estate 40

Inventory the Estate 41

Maintain the Estate 42

Invest with Prudence 43

Know the Guardian’s Limits 44

Develop Communication Skills 45




Guardians Respect Rights 46

Rights Retained 46

Rights Restricted 48

Rights Delegated 48

Guardians Seek Modification 49

Right to Restoration 49

Termination Process 50

Changes in the Person’s Status 50

Death of the Person 51

Minor Coming of Age 52

Interstate Recognition and Transfer 52

Removal or Resignation of the Guardian 52

Successor Guardians 53




Guardians Report Abuse 54

Signs of Physical Abuse 54

Signs of Emotional Abuse in Behaviors 55

Signs of Sexual Abuse 55

Signs of Neglect 55

Signs of Self-Neglect 55

Signs of Exploitation 56

Signs of Abandonment 56

Signs of Environmental Abuse 56

Signs of Caregiver Abuse 56

Signs of Improper Residential/Group Setting Care 56




Guardians Avoid Conflicts of Interest 58

Staying Out of Trouble 58




National Guardianship Association Resources 60

Education Products 60

Professional Development 60

NGA Brochures 61

National Certified Guardian Study Guide 61

Finance Certificate Study Guide 61




Checklists and Forms 62

Appendix A: National Guardianship Association Ethical Principles 109

Appendix B: National Guardianship Association Standards of Practice 110

Appendix C: Practice Checklist 141

Appendix D: Websites 151