Thursday, December 10, 2009

How disabled does an adult have to be before a guardian can be appointed?

When the law appoints a guardian for an adult it takes away the most important and  intimate rights we have come to expect as citizens. Only being sent to prison is worse. A guardian can tell you where you have to live, tell you when you have to go to the doctor, and tell you what medical treatments you must endure. Because of the intrusiveness of having a guardian appointed, the law provides many protections to make sure that guardianships are not ordered unless they are absolutely necessary. You might think that one of those protections would be a clear and unambiguous legal standard for appointing a guardian. If you thought that, you were wrong.

In order to have a guardian appointed for an impaired elder a court must find that the elder is "incapacitated." Incapacity is defined in Oregon Statutes. In order for you to understand the problems that lawyers have in guardianship cases you should read the definition.

“Incapacitated” means a condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety. “Meeting the essential requirements for physical health and safety” means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur.

We learn one thing from the definition. We learn that the only impairments that will support a guardianship are those related to either thinking or communicating. You can be paralyzed from the neck down, but a guardian won't be appointed if you can still make decisions and communicate your wishes.

Dementia arrives in stages. How cognitively impaired do you have to be before the law steps in? The second part of the definition suggests that the impairment must be so severe that physical injury or illness is likely to result. This leads to the common scene in which a relative has applied to have a guardian appointed for a resident who is in a long term care facility and who is not refusing medical treatment. If I represent the elder I ask the director of the care center whether the elder in his care is currently in danger of physical injury. To say that the elder is in danger condemns the care center; to say that the elder is safe says that a guardian is unnecessary.

It is fairly clear in real life that the degree of impairment is related to the conditions in which the elder lives. An elder who insists on living alone in a remote cabin will have to show greater cognitive skills than one who lives in a full-service long term care facility.

When the Oregon Statutes don't answer the question, lawyers turn to reported cases from the Oregon Court of Appeals. The Oregon case interpreting the definition of incapacity is called Shaefer v. Shaefer. In Shaefer, the elder was an eighty-six year old woman who lived alone with a large number of cats and a dog. She had some memory loss plus confusion, her house smelled of pet urine, and she was not taking her prescribed medicine. The court held that Mrs. Schaefer did not need guardian.

The court said that for a guardian to be appointed for Mrs. Schaefer the judge would need clear evidence of three things:
  1. That the elder has severely impaired perception or communication skills.
  2. That the elder cannot take care of basic needs to an extent that it threatens life or health,
  3. And, that the cognitive impairment is the cause of the life-threatening disability.
Mrs. Schaefer had some cognitive loss and she was refusing medical treatment, but she was not refusing treatment because of the cognitive decline. She was refusing because she did not like the side effects of the medicine. The smell of cat urine in her house was the price she paid for the companionship of her cats, it was not the result of dementia.

The Oregon probate judges read the Schaefer case with great interest, and then ignored it. I have not seen or heard about Schaefer having much of an impact. I think that the best approach to the real standard for a guardianship comes from Tim McNeil, a lawyer and popular presenter in the Oregon elder law field. He points out that guardianships and conservatorshps are called protective proceedings because the point is to protect vulnerable elders. Judges will follow the law, but they are not going to let fear of being overturned on appeal prevent them from stepping in when they see an elder truly in danger.

No one wants a guardian and elders usually object when served with the papers that start a guardianship proceeding. I think, at the end of the day, the guardianship cases succeed or fail in whether the elder is in immediate danger. If you claim a guardian should be appointed and can show a clear threat to the health of the elder that can be eliminated by appointment of a guardian, you will probably prevail. If the threat is speculative, or looms only in the future, you may not.


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