Over 300 people from 6 continents & 19 countries attended the 3rd World Congress on Adult Guardianship in Arlington, VA last week and spent three days discussing strategies to help people who have impaired decision-making ability. Elder law attorneys, professional guardians, professors and policy makers tackled issues such as: preserving autonomy and legal rights by use of limited guardianship; returning to court to remove an onerous guardianship and restore a person’s legal rights; balancing the need to protect individuals against hazardous situations that could arise due to lack of capacity to manage their affairs, while assuring that as much autonomy as possible is preserved. Ensuring that guardians are well-trained about their role was a high priority from all over the world.
Guardians are required to make decisions in a vast array of life issues. These range from preventive medical care to use of life support, management of the lifestyle and budget, and arranging for housing and caregiving. The NJ standard is that a Guardian shall endeavor to discover what decision the incapacitated person would have made and implement that decision unless it poses a palpable risk to health and safety (called “substitute decision-making.”) If the individual cannot communicate, the Guardian is expected to widen their search for information from other sources — friends, family, documents. This approach places highest emphasis on the autonomy of the individual. What would he or she likely prefer?
For instance, some people adore flowers and the woods, enjoy birdwatching, and have always gotten great pleasure from walks in parks and woods, and build these activities into their lifestyle. Other people love going to weekly bingo games at the Legion or sitting under an umbrella at the beach listening to the crash of the waves which is music to their ears. Yet another person may never go anywhere and feels happiest in her living room with a TV on. If we become Guardian for someone, shouldn’t we do whatever we can to incorporate these preferences into their lifestyle plan? It may be inconvenient and time-consuming. We may have to rent a wheelchair with special wheels for the beach. We may have to bundle them up when we take them out for their rolling walk in the park. This is part of what substituted decision-making is all about. The outgoing sociable person may be happier in assisted living than the quiet homebody who would prefer a live-in at their home.
If there is no way to know the “ward’s” preferences, then the Guardian is expected to weigh the totality of the circumstances and make a decision that would be in the “best interests” of the ward. This approach places highest emphasis on protection. What would a reasonable person do in these circumstances? The challenge is to avoid projecting our own preferences into the situation, and to take into account as many variables as possible.
Call us to make an appointment to discuss the challenges of guardianship… 732-382-6070