Schmidt & Sikes, P.C.

Support and protection for those who need it most.

May 29th, 2014 by Jenna N. Schmidt, Esq.

Guardianship – When is it Needed?

Generally, a guardianship of an adult allows a person (called the guardian) to make health care decisions and give informed consent on behalf of an incapacitated person (IP). This is because the IP has been deemed by a court to lack capacity to give informed consent on his or her own due to a clinically diagnosed condition, such as dementia or an intellectual disability. A guardian provides “substituted judgment” and gives informed consent on behalf of the IP. The guardian also makes decisions about residential placement and supporting services. A guardian may need to be appointed if the IP is refusing important medical care that is in his or her best interests. In addition, a guardian often needs to be appointed by a court if an IP is in the hospital and he or she does not have a Health Care Proxy (HCP) and important medical treatment or placement decisions need to be made before that person can be discharged. For example, if you suffer a traumatic brain injury, your medical decision-making power does not automatically go to your spouse or other loved one. If you do not have a HCP, you will need a guardian to be appointed to make your health care decisions, including placement in a rehabilitation center or skilled nursing facility. The guardianship process takes time and can delay discharge from the hospital.

What if I Have a Health Care Proxy (HCP?)?

As long as the IP agrees with the health care agent’s decisions, the agent can often consent to medical treatment without a court getting involved. However, if the IP disagrees with his or her health care agent’s decision, his or her refusal must be respected. However, a court can get involved in one of two ways:

1) Affirming the Health Care Proxy

Affirming a HCP requires a showing to the court that a valid HCP exists, that the incapacitated person lacks capacity to make his or her own health care decisions, and that the HCP should be affirmed. It may be affirmed even though, for example, the agent and the IP disagree with course of treatment or placement, such as placement in a skilled nursing facility. If the court affirms, the health care agent may assume the role and make decisions on behalf of the IP, even if the IP does not agree with those decisions. The underlying belief is that the person that the IP designated as his or her health care agent in the HCP will make decisions in his or her best interest and that the IP lacks capacity to make decisions on his or her own.

2) Guardianship

Even though an IP has a HCP, it may still be wise to get a guardianship. An affirmation of a HCP proxy is not widely understood by medical care providers, and thus, providers often refuse to treat an IP who seems resistant to treatment, even though it may be in his or her best interests.