Guardianship determinations by judges, attorneys, and guardians

Abstract

Guardianship is intended to protect incapacitated individuals through the appointment of a surrogate decision maker. Little is known about how judges, attorneys, and professional guardians assess the need for guardianship, to what extent they apply statutory guidelines when making these determinations, and how their decisions compare. Three groups of participants (probate judges, elder law attorneys, and professional guardians) read vignettes portraying older adults that varied in the extent to which the evidence supported the appointment of a guardian. They were asked about the appropriateness of various resolutions. Participants were reluctant to endorse full guardianship even when warranted by the evidence and preferred informal, family-based interventions that do not involve legal action. Professional groups did not always agree on the appropriate resolutions, suggesting that one's professional orientation may play a role in perceptions of older adults.

Diverging medical and legal perceptions of the need for legal guardianship in people with dementia: A qualitative study

“…The findings of differences in perceptions within professional groups support previous research findings that the assessment of mental capacity by physicians may be based more on the personal views of the assessor than on the actual situation of the patient [27][28][29], and that legal experts assess mental capacity and the need for guardianship inconsistently [30]. Findings of differences between professional groups also support research findings that distinct professional groups use diverse criteria to assess capacity and the need for guardianship [7,31]. However, in this study, some legal professionals equated language deficits and visuospatial dysfunction with visual impairment or physical speech impairment, suggesting that some of the differences in perception may be due to a lack of knowledge and consequent potential misinterpretations.…”

Guardianship for Older Adults: A Jurisprudent Science Perspective

“…Given that "it is by now axiomatic that the population of most North American and European countries is aging," (Petri la, 2007, p. 337), we should not be surprised that psychiatric and legal scholarship in the guardianship arena over the course of the last two decades has focused substantially upon older adults. Gavisk and Greene (2007) have commented that "one consequence of longevity is an increase in the incidence of impairment in mental capacity ... the collection of skills such as memory, reasoning, judgment, and decision making required to manage one's affairs and perform everyday tasks" (pp. 339-340).…”

Rethinking the education potential of older adults to delay the onset of dementia

“…• Under the current law, expenditures for national health are projected to grow at an average rate of 5.5% each year for 2017-2026, reaching $5.7 trillion by 2026 (Centers for Medicare & Medicaid Services, 2016). • The reform of elder care laws and practices needs to be restructured to accommodate the growing population of older adults (Gavisk & Greene, 2007). • The brain is malleable, and learning does continue in later years (Kueider et al, 2014).…”