If there is concern that an adult is incapable of managing their needs — personal, health and/or financial — a court appointed guardian with specific powers and responsibilities may be sought to make decisions and protect the interests of the individual.
Because guardianship limits the personal freedoms and constitutional rights of the person under guardianship, it is recommended that alternatives to guardianship be explored first to see if there might be a less restrictive way of meeting the individual’s needs. If guardianship is deemed necessary, the scope of powers of the guardian are limited to the specific needs of the individual.
Types of Guardians
There are two general types of guardians:
- Private Guardians – usually an adult family member or friend of the person. Private Guardians are appointed by the Probate Court.
- Public Guardians – state employees of the Department of Disabilities, Aging and Independent Living (DAIL) under the Office of Public Guardian (OPG). OPG provides guardianship services to adults with developmental disabilities and individuals 60 years of age and over for whom a private guardian cannot be found. Public Guardians for people with developmental disabilities are appointed by the Family Court. Public Guardians for individuals 60 years of age and over are appointed by the Probate Court.
Powers the Court May Grant to a Guardian
- The power to exercise general supervision over the person under guardianship. This includes making decisions about habilitation, education, employment and the residence of the person under guardianship;
- The power to make medical/dental decisions for the person under guardianship;
- The power to exercise financial supervision over the income and resources of the person under guardianship;
- The power to approve or withhold approval of any contract which the person under guardianship wishes to make;
- The power to obtain legal representation for the person under guardianship.
A guardian may be given full powers or limited powers depending on the needs of the person under guardianship. For example, if a person only needs assistance with medical decision-making, the court will give the guardian power only in this area.
Medical Decision-Making for Persons Under Guardianship
- A person whose right to make medical decisions has been restricted due to a guardianship who has the capacity to make a specific medical decision retains the right to make that decision [§3075(b)].
- A health care agent appointed in an advance directive has exclusive authority to make medical decisions over a guardian [see §3069(b), §3075(c), §3075(d)].
- Guardians appointed by the Probate Court must seek prior approval from the court in the following circumstances [§3075(g)]:
- When the person under guardianship objects to the decision;
- When the court had previously ordered the decision would not be made without a hearing;
- Before withholding/withdrawing life sustaining treatment other than antibiotics (unless under an advance directive), except in an emergency (when the decision needs to be made before a court decision could be made); or
- Before consenting to a DNR (do-not-resuscitate) order (unless under an advance directive), except in an emergency (when the clinician certifies in writing that the patient is likely to experience a cardiopulmonary arrest before the court’s order can be obtained).
- A guardian must honor instructions in an individual’s advance directive even if there is no health care agent and the guardian is making the decision.
- When making medical decisions for a person under guardianship, the guardian must first try to determine what the person would decide if they were able (substituted judgement). If this is not known, the guardian would then make a decision based on what is in the individual’s best interest.