Guardianship Issues Following TBI
If a person with a traumatic brain injury (TBI) has impaired decision-making abilities, and/or is at risk for undue influence by others, then appointment of a guardian may be considered.
- Personal Rights Affected by Guardianship
- Types of Guardianship
- Alternatives to Guardianship
- Terminating Guardianship
- Evaluations to Assist in Determining Need for Guardianship
- Guardianship Resources
What is a Guardian?
Guardians are individuals appointed by the court to advocate for, and make decisions for, a person who is incapacitated (unable to care for him/herself) and can longer make or communicate sound decisions.
What is a Ward (aka Protectee)?
This is the individual who was found to be incapacitated in one or more areas.
In general, what are a Guardian's responsibilities?
- Coordinating and monitoring professional services needed by the ward.
- Selecting care providers
- Arranging for necessary health care services
- Making financial decisions in the ward's best interest.
- Funds that belong to the ward remain his/hers
- The guardian must provide an accurate account of the ward's funds to the court
Does a Guardian necessarily assume responsibility for all decision-making?
No, an individual may be determined incapacitated in one area (e.g., finances), but found to have the capacity to make decisions in another area (e.g., health care). In these situations, the court may appoint someone to have limited guardianship, matching the ward's needs. (See Types of Guardianship )
Do the Ward's opinions matter in decision making situations?
Yes, it is important that the guardian consult with the ward whenever possible, so that his/her voice can be heard in the decision making process.
Guardianship offers protections and yet also removes an individual's rights. Therefore, it is important to consider the potential implications of appointing a guardian for an incapacitated individual.
When the court appoints a guardian to an incapacitated individual, numerous rights of the individual may be affected. These include the ability to:
- Consent to medical treatment
- Determine where to live
- Buy, sell, or manage property
- Possess a driver's license
- Make end-of-life decisions
With full/plenary guardianship, all of these rights are affected, and decision-making related to all of these matters is assigned to the guardian.
With limited/partial guardianship, only specified rights are assigned to the guardian (e.g., right to consent to medical treatment).
See Types of Guardianship for additional information.
The extent of decision-making authority held by the guardian is dependent upon the type of guardianship awarded by the court.
A person may be appointed to limited/partial guardianship or full/plenary guardianship.
- The guardian is assigned to make decisions in specified domains for which the individual is deemed incapacitated.
- Limited guardianship of the estate (aka conservatorship) is limited to management of money/property.
- Limited guardianship related to health care is restricted to decisions regarding health issues.
- May be appropriate for individuals with global impairments in functioning.
- All duties and powers for individuals under state laws are assigned to the guardian.
Guardian Ad Litem
- This is a time-limited, temporary form of guardianship.
- An individual can be appointed to this position by the court to protect the interests of the ward during guardianship proceedings.
- This individual can make decisions for the ward prior to the official guardian's appointment.
- This is a time-limited form of guardianship sometimes put in place when specific emergency medical intervention issues exist.
Before guardianship is pursued, it is essential to determine if there are other, less restrictive alternatives to assist individuals in living safely and independently.
Some other less restrictive alternatives to guardianship to consider, which may be equally appropriate include:
- Obtaining durable powers of attorney (e.g., for health care, property)
- Establishing joint banking accounts
- Writing living wills
- Establishing trusts
- Utilizing case management services (see Resources section)
- Arranging for community agency services (e.g., home health care, etc.) (see Resources section)
The goal of an effective guardianship is to restore the rights of the individual as soon as that person is capable of adequately and safely handling his/her own affairs.
- Some individuals with TBI will continue to benefit from having a guardian throughout their lives.
- However, some persons with TBI may regain functional skills as they recover, and guardianship may no longer be necessary.
- Therefore, periodic evaluations of the ward, particularly in the early years following recovery from TBI, may be helpful in determining whether continued guardianship is needed.
Court Termination of Guardianship
- Missouri law requires annual reports from the guardian regarding how he/she performed her duties, and whether there is evidence that the ward's incapacity has lessened or ceased.
- If the court determines that guardianship is no longer indicated based on an annual report, the court may appoint a lawyer to file paperwork on behalf of the ward to terminate guardianship.
Petitioning to Terminate Guardianship
- Petitions to terminate guardianship may be filed at any time by the guardian, by any other person on behalf of the ward, or by the ward.
- Petitions are available in state courts (in Missouri, the Probate Division of the Circuit court) handling guardianship proceedings.
- In some states, if the guardian and the ward file the petition jointly and the court determines that dissolution of the guardianship is in the best interests of the ward, then a formal hearing may not be required.
- If the incapacitated individual files a petition without the guardian's agreement, then a hearing is required.
- In proceedings to terminate guardianship, the burden of proof regarding the return of capacity lies with the petitioner, who may have legal representation provided by the court.
A person is assigned a guardian by the court is he/she is determined to be incapacitated. An incapacitated person is "a person who is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."
Uniform Guardianship and Protective Proceedings Act (UGPPA, 1997)
Five factors considered by courts in determining capacity
- The presence of a disabling condition
- Evidence of impairments in cognitive functioning
- Evidence of impairments in self-care abilities
- Documentation of a failure to meet one's "essential" needs
- Evidence that one is a danger to oneself (e.g., by self-neglect)
General Procedure for Evaluating Capacity
Professionals doing capacity evaluations will typically take the following steps:
- Clarify what specific capacities are in question.
- Capacity is not necessarily an "all-or-nothing" state of functioning, as individuals may have impaired decision making in some domains (e.g., money management) but not others (e.g., health care issues).
- Determine the cause of the impairments (e.g., document the nature and severity of the TBI)
- Identify the individual's cognitive and behavioral strengths and weaknesses
- Obtain information about the person's situation (e.g., determining what social supports and other compensatory resources are available).
- Make a determination regarding whether there is evidence of incapacity suggesting the need for guardianship or conservatorship
- Share this information with the person who is the subject of the evaluation and his/her family members.
- If involved in the person's ongoing care, conduct follow-up evaluations to assist with monitoring whether guardianship remains needed.
Key Factors Assessed
- Medical/Physical Conditions
- This provides information about possible causes for incapacity and indications regarding whether services/technological equipment may increase level of functioning and decrease need for assistance.
- Level of Daily Functioning
- This includes assessment of skills for completing instrumental activities of daily living (e.g., management of home, health, finances, transportation, meals, and communication).
- Values and Preferences
- While some individuals make choices viewed as unconventional by others, if they are consistent with the person's expressed values and previous choices and are considered to be rational for that individual, then they may suggest that assistance with decision making is not needed.
- Level of Danger to Self and Others
- Potential for harm to self and others is a critical piece of information in capacity evaluations.
- Cognitive Abilities
- Assessing cognitive functioning (e.g., intelligence, attention, memory, comprehension, visual spatial ability, problem solving, organizing and planning, language, etc.) is an essential component of capacity evaluation. In particular, assessing one's understanding, appreciation, reasoning, and expression of choice for making decision is critical.
Cognitive Evaluations in Capacity Assessments
- Clinical interview with person under consideration for guardianship
- Includes background information and details regarding the individual's previous residential, vocational, and medical or mental health treatment choices
- Interview with family members
- Standardized cognitive (neuropsychological) testing
- Testing with instruments assessing abilities that are in question when guardianship is being considered (i.e., ability to manage instrumental activities of daily living, decision-making regarding health care needs).
Legal Proceedings Related to Guardianship
Guardianship proceedings occur when a family member, friend, or agency files a petition with Probate Court due to concerns that an individual has incapacities that may be affecting his/her safety and well-being.
Information Typically Required In Guardianship Petitions
- Basic demographic information for the potentially incapacitated person
- Contact information for the person's immediate family members
- Contact information for the person filing the petition
- Statements describing the nature of the person's limitation and why guardianship is being sought
- Documentation from a treating physician and/or licensed psychologists regarding the nature and cause of the individual's incapacity
Steps in Guardianship Proceedings
- Petition is filed by concerned individual or agency
- Guardian ad litem may be appointed to protect the individual's interests during the proceeding
- Possible order by the Court of a formal evaluation of the individual by a physician, psychologist or rehabilitation professional
- Court proceedings attended by the individual being considered for guardianship, with legal representation for the individual
- Opportunity for the individual being considered for guardianship to provide evidence to refute the need for a guardian
- A judgment (aka adjudication) by the Court regarding whether the person is incapacitated and, if so, what specific aspects of his/her care and decision-making should be assumed by the guardian.
American Bar Association, Commission on Law and Aging
American Psychological Association
Public Interest Section — Aging Issues
This website provides links to two publications from The ABA/APA Assessment of Capacity in Older Adults Project:
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings
- Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
National Association of Area Agencies on Aging 1730 Rhode Island Avenue, NW, Suite 1200
Washington, DC 20036
Missouri Department of Health & Senior Services P.O. Box 570 Jefferson City, MO 65102-0570 (573) 526-3626
Basic Guide for Understanding Guardianship and Conservatorship in Missouri