Guardianship and Conservatorship Flashcards
(7 cards)
Guardian
–guardian of your body/physical human person (guardian of body)
A guardian may be appointed for an incapacitated person “who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability 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.”
appointed to “an incapacitated person”
Conservator
–looking after your financial affairs when you can’t (manage estate)
A conservator may be appointed for a person to be protected if “the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person’s support and that protection is necessary or desirable to obtain or provide money.”
ex: a person with a severe gambling addiction may need a conservator
appointed to “persons to be protected”
Guardian ad litem or next friend
Person appointed by court to speak on behalf of minor or incapacitated person in court proceedings (for a particular legal matter–not guardian of body)
psychologists sometimes play this role
“Incapacitated person”
definition
an individual who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability 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
Person with intellectual disability
definition
an individual who has a substantial limitation in present functioning beginning before age 18, manifested by significantly subaverage intellectual functioning existing concurrently with related limitations in 2 or more of the following applicable adaptive skills areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functioning academics, leisure, and work.
Medical certificates
for disability determination
In guardianship cases involving incapacitated persons and in conservatorship cases involving persons to be protected, a Medical Certificate must be filed.
Must be dated within 30 days of filing, and examination must be within 30 days prior to hearing
Medical certifcate must include:
* description of nature, types, and extent of specific cognitive and functional limitations
* evaluation of mental and physical condition–including:educational potential, adaptive behavior, and social skills
* prognosis fo rimporvement and recommendations for treatment or rehab
* date of examination report is based on
intellectual disability must be evaluated by clinical team of people
substituted judgement
antipsychotic medications–committed
if person committed to inpatient treatment is deemed to need antipsychotics but refuses, court can use “subsituted judgment” if:
1. person is found incapable of making medical decisions
2. use “substituted judgment”–decide what that particular person would want to do/decide if they were competent to decide
3. then can authorize treatment
(important b/c these drugs have lasting consequences like tardive dyskanisa)
After a hearing on the petition regarding antipsychotic medication treatment the court shall not authorize medical treatment unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan. The court may base its findings exclusively upon affidavits and other documentary evidence if it (i) determines, after careful inquiry and upon representations of counsel, that there are not contested issues of fact and (ii) includes in its findings the reasons that oral testimony was not required.
