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Guardianship of the Person
GUARDIANSHIP OF THE PERSON RCW 11.92.043 (1) requires the guardian to To file within three months after appointment a personal care plan for the incapacitated person which shall include (a) an assessment of the incapacitated person's physical, mental, and emotional needs and of such person's ability to perform or assist in activities of daily living, and (b) the guardian's specific plan for meeting the identified and emerging personal care needs of the incapacitated person. A form for the personal care plan is included as attachment . The form recommended gives somewhat more information than is required by the statute, such as "code" status and current address. Also attached is a work sheet for the guardian to use to provide counsel the information needed to prepare the report. The essential purpose of the planning requirement is to cause the guardian, the court and any other parties to consider and state what the guardian plans to do and how s/he plans to do it. Assessment A person who is incapacitated to the degree of needing a full guardian of the person nearly always has deficits in thinking and difficulty managing their activities of daily living. Often these are associated with health problems. Attachment is a form that can be used to identify areas in which the guardian observes problems. This is not a clinical tool. It is strongly advised that the newly appointed guardian arrange for specialized clinical evaluation from a qualified specialist. This will vary with the nature of the incapacity. The intent of the statute is not to generate intrusion and expense to the ward just for the purpose of satisfying the legal requirements. Rather, it is based on the idea that it is prudent for any person having significant problems managing their needs to obtain a thorough review of their abilities and disabilities. It is very often not sufficient for the guardian to consult only with a physician. Physicians are oriented to the diagnosis and treatment of specific illnesses. While this satisfies the requirement to assess the physical well being, physicians are not oriented toward mental needs, emotional needs or activities of daily living. For a ward who has problems in these areas, a broader review is appropriate. If it has not been already done, counsel should urge the guardian to seek a comprehensive evaluation from a clinic or outpatient service that specializes in the disability affecting the ward. If there is question as to how to best identify the needs of the ward, there are a number of firms and individuals providing information, referral and case management services who can assist the guardian in this process. Generally, a suitably comprehensive evaluation generates a report that can be attached to the guardians plan, and which more than satisfies the demands of the statute. Again, this ought not be done solely for legal reasons. If the ward has already been well assessed, the guardianship is so limited, or the care needs are so manifest that further review is gratuitous, the guardian ought not incur the expense and inconvenience of obtaining this paperwork. Plan The guardians statement of specific plan generally includes how and how often the guardian
intends to visit or otherwise monitor the needs of the ward, the residential setting the guardian
plans to arrange, the professional assistance that will be sought, and the approach to medical
matters that will be adopted. In cases in which the ward presents especially difficult problems,
these should be stated clearly and the guardian's approach should be stated. Sometimes, it is
appropriate to indicate how the management of the ward's budget will be included in the
management of the ward's personal needs.
MEDICAL DECISIONS There is an extensive literature on the use or non use of various medical technologies. There is a somewhat smaller literature on surrogate decision making as well. Almost all of this material is oriented toward how competent people should be able to control medical decision making, and to the process by which a surrogate decision maker should be chosen. The writing in this area is dominated by analysis of case law and other legal standards that in the daily practice of guardians in Washington require very little consideration. There is virtually no literature that offers any particular guidance to the surrogate decision maker to decide what should actually be done in a given situation; i.e. what is the right actual decision. The law in Washington State on the discretion available to a guardian of person boils down to the following: in the absence of family controversy or disagreement among health professionals, the guardian may permissibly follow any course of medical treatment approved by a qualified treating physician, without court authority beyond the appointment as guardian of person. The guardian is restricted from coercing any treatment, especially mental heath treatment, must seek authority for electro-shock treatment and cannot consent to psycho-surgery. The National Guardianship Association has approved a set of Ethics and Standards for Guardians. The standards are included in the course materials, and should be reviewed by every newly appointed guardian. A guardian who accepts appointments for a number of people to whom s/he is not related can expect from time to time to be in the position of giving directives to physicians with which s/he personally disagrees. The guardian should always err in favor of life, and the guardian may deal with a ward or family whose judgement should be accepted, but differs from the guardian's. Decision Standards There are two standards for the guardian to use in making judgements on behalf of a ward: substituted judgement and best interests. Substituted Judgement
When it is possible for the guardian to determine what medical choice the ward would make if
s/he were competent, the guardian should follow that choice. When the ward has executed a living
will, this would be fairly straightforward; however this occurs rarely. The guardian should, of
course, talk to the ward if at all possible. Many times guardians are hesitant to broach such
subjects with elders. In fact, almost anyone who has achieved advanced age has observed the
demise many of his or her contemporaries, and most are quite reconciled to mortality. The
guardian can also be guided by statements made by the ward to his or her physician, friends or
relatives; and by a review of the choices made by the ward for others such as children or a spouse.
The guardian should also give consideration to the opinions of family members as to what the
individual would have wanted, even absent the ability to quote some specific statement of the
ward.
Best Interests
When the investigation of the guardian generates insufficient guidance upon which to base a
substituted judgement, the guardian must determine where the best interests of the ward lie. The
guardian must make the decision that is most likely to enhance the well being of the ward. It may
seem paradoxical that this is sometimes to authorize withholding of medical treatment.
Quality of Life Issues
For most of human history and for most people today, considerations of quantity of life far
outweigh considerations of quality of life. "Quality of Life" is often a substitute for rather than a
form of clear expression. A guardian should always ask someone basing a decision on
considerations of "quality of life" to use other, more specific, words to explain their reasoning.
Sometimes what is meant is that an individual is very sick, feels very uncomfortable and is not
likely to recover from this status. Sometimes it means that the individual is very unhappy. Often, it
means only that the individual lives in a nursing home. As often as not, the concern expressed is a
valid one. The guardian must consider what alternatives other than the death of the ward may be
available to resolve any inadequacy in "quality of life".
Research suggests that one's evaluation of quality of life is highly correlated to one's own
circumstances. The less desirable a person's "quality" of life is, the lower that person's standard as
to what constitutes acceptable "quality" of life.
The need for skepticism as to recommendations based on "quality of life" is that such concerns
are often shorthand for "this person's life isn't worth much". Often, the deficiencies in "quality"
are not inherent in the patient's medical condition but are the result of decisions by care givers or
society in general. For example, if a person lives in an unpleasant institutional setting, this is often
for reasons of public policy or economic status having nothing to do with the patient's condition.
A person's "quality of life" can be changed, but not if the person is dead.
The above said, it is also true that most of the time the phrase "quality of life" is used, there are
legitimate reasons to be concerned that the pain and suffering of the patient, or the patient's
inability to benefit from life prolonging efforts are reasonable considerations.
Types of Medical Decisions
Code/No Code Decisions
Whenever a person signs into a nursing home or hospital, they or their surrogate is asked to
specify what emergency action is to be taken. The questions asked is specifically, "Should staff
implement cardio-pulmonary resuscitation (CPR) if the ward is found not breathing and with no
heart beat?" If the answer is no, a medical order saying "Do Not Resuscitate", or DNR, is entered
in the chart. DNR orders do not usually apply to incidents during, say, surgery and do not affect
other medical decisions.
The form for the guardian's directive is sometimes included with those covering laundry and bed
holding policies, and it is easy to make this into a simple decision. The guardian must remember
that this is a literal life and death decision. In fact, many, perhaps most, elders choose to be "No
Coded"; and it is appropriate and common for guardians to make this decision. However, it
should never be done without enquiry to the ward and family, and should never be a snap
decision. Forms used for DNR orders are included as attachments 20 and 21.
The reason so many people opt for "No Code" status is that it is a factor only when the patient
has died and the decision is whether to try to bring the patient back to life. For most frail elderly
people, the probability of success is small. If CPR is successful it is likely that the experience will
leave the person permanently impaired due to the lack of oxygen during unconsciousness. A
person in relatively robust health ordinarily elects to receive CPR.
Site of Care
Some medical procedures are generally performed in a hospital. Intravenous feeding or
medication or treatment for acute illness are examples. Many people in very frail conditions simply
do not want to have to go through the uncomfortable and scary experience of a hospital admission
when they know that they are going to die soon anyway. A guardian may make this decision on
behalf of a ward. The guardian may arrange hospice care at home or transfer to a hospice facility,
if desired.
As with many other decisions, the guardian must not ever make decisions of this kind on public
policy criteria. One of the staple statistics of the policy debate on national health insurance is the
cost of paying for the last few days of life for people in hospitals. A very important topic, but
irrelevant to the best interests of the one individual on behalf of whom the guardian is making a
decision.
Aggressiveness of Treatment
On very rare occasions a guardian is faced with decisions as to how
aggressively the ward should be assisted. The use of tubes through the nose or
stomach for food and fluid; and the decision to forgo use of antibiotics for
infectious diseases are the most common issues. There is a school of thought
that all measures need to be taken all of the time. This approach is not
available to a guardian committed to the substituted judgement standard.
Attachment 22 is a version of a letter outlining a typical problem of this sort.
There is no easy answer to problems of this sort. There is virtually universal agreement that elders
should not need to be degraded or excoriated in their last days, but there is not yet a social
consensus as to where to draw the line. The buck stops with the guardian. These are not medical
decisions that can be given to a doctor, but are judgement calls. The guardian is left only with the
best advice available from the family and professionals involved; and a duty to the ward to make
the decision that is best for the ward. Much of the angst involved in making these decisions is the
awareness that there are celebrated court cases on these issues, of which no one would want to be
a part. The guardian should make the best decision for the ward first, and can be pretty secure
that in Washington these are mostly settled matters.
A conscientious guardian may not properly avoid confronting difficult decisions. The duty of a
guardian to the ward is to arrive at the decision that the ward would have chosen, or that is in the
best interests of the ward. There may be good grounds for a guardian to have difficulty with this,
including personal values of the guardian or concern about personal liability. In such an instance
the guardian ought to either seek direction from the court or withdraw as guardian.
CARE ISSUES
By far the most important decisions that a guardian is likely to make are not at all dramatic. They
are sometimes not even distinguishable as decisions. These have to do with how needs for care
get addressed.
The best example is placement in a nursing home. This is a common event that many people have
come to regard as a natural part of being elderly and mentally incapacitated. From the point of
view of the ward, however, this is probably the most significant decision the guardian makes. It is
not unusual for an person who is, say, 80 years old to be placed in a nursing home on the
expectation that s/he will have a limited life span anyhow. Nor is it unusual for this prediction to
be off a bit and for the person to live for 5, 10 or 15 years in that setting. A long time.
The decision as to the setting in which a person's care needs are met is not
chiefly a medical decision. It is an economic and administrative decision.
Physicians diagnose and treat illness, and have little training or, much of the
time, interest in the custodial and supervisory details of long term care. A
physician's advice alone is never sufficient for a guardian to rely upon in
making care decisions.
The decisions that a guardian makes about issues of care are subject to the same judgement
standards described above for medical decisions. Since most people would not choose nursing
care, it is important for the guardian to investigate alternatives.
The financial condition of the ward is quite often determines the choices the
guardian has. There is very little public funding for long term care of impaired
elderly people. Indeed, the very words "long term care" are generally
treated as being synonymous with "nursing home care". This is because
this is the type of care the government pays for. Less institutional, and less
costly, forms of care are not well funded, but are available.
The range of alternatives the guardian should consider include maintaining a
person in his or her home, a retirement community, an adult family home or an
assisted living facility
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