Every person should make his own decisions, whenever possible. This makes sense not only psychologically, socially, and humanely, but also legally. The law begins with a “presumption of competence.” All adults are legally competent to make decisions about their own personal and financial matters unless they have been found by a court to be incompetent. Even if individuals are mentally retarded or mentally ill, they are still presumed to be legally competent.

When a person’s capacity to make decisions is in doubt because of mental retardation, dementia, or mental illness, a number of questions arise: Should someone else make decisions for him? Who should this be? What standard should the proxy decision maker use? Are there some decisions that can still be made by the person whose competence is in question? What are they? Who should decide if a proxy decision maker is needed and what will be the scope of her powers? If your close relative is unable to make his own decisions, consult with an experienced North Salt Lake North Salt Lake Utah family lawyer to know how you can ask the court to appoint a guardian for your relative. The court appointed guardian will be empowered to take decisions on behalf of your relative.

“Competency” is a term used to refer to a person’s decision-making capacity. The word should properly be pluralized–competencies–because there are several types. Two main types are legal competency, the legal right to make decisions and speak for oneself, and functional competency, the psychological capacity to make decisions. Furthermore, both legal and functional competencies can be divided into a huge number of specific competencies relating to the particular decisions to be made.

Whether an individual is functionally competent to make a particular decision depends upon the abilities of the person, the nature of the decision to be made, and the likely consequences of the decision for the person. Ideally, legal competencies should be closely matched with functional competencies, so that an individual is legally empowered to make those decisions she has the functional capacity to make, but enjoys the services of a surrogate or proxy decision maker for those decisions (and only those decisions) that are beyond her capacity. Speak to an experienced North Salt Lake North Salt Lake Utah family lawyer before you file a guardianship petition for your close relative.

Alternatives to Guardianship

Before resorting to guardianship, however, there are a number of less drastic alternatives that should first be considered. An experienced North Salt Lake North Salt Lake Utah family lawyer can explain the alternatives to you. If the required decision involves financial matters, consideration should be given to whether a representative payee, a joint bank account, a trust, or a durable power of attorney might help.

A representative payee is appointed by the Veterans Administration or the Social Security Administration to handle benefit checks (SSI, SSDI, or Veterans benefits) for a person deemed incapable of doing so. The representative payee has authority over only the funds from the particular source for which he is payee, and he must manage them for the benefit of the beneficiary. The Social Security Administration has the authority to decide if a representative payee should be appointed and who it should be. The procedure for being appointed is much less cumbersome than guardianship or conservatorship, and certainly infringes much less on the autonomy of the person with mental retardation.

Another mechanism of possible value in handling financial decisions is a joint bank account, an account requiring two signatures to permit withdrawals (one by the person with mental retardation and the other by a trusted family member or friend). Such an account may be useful to prevent rash expenditures.

Trusts are yet another possibility in the area of finances. There are a number of different types of trusts that are suited to a variety of situations. Some are very useful in addressing the problem of how assets of a significant amount can be managed for someone who cannot manage them for herself, without making that person ineligible for state or federal benefits.

Another mechanism for decision-making in the financial area is probably not applicable to many people with mental retardation, but it may be useful for a few. That is a power of attorney, which is now authorized by law in Utah. This is a mechanism by which you may designate in writing another person to be your “attorney in fact,” giving that person the authority to make decisions for you in whatever areas you specify in the writing. These frequently include financial affairs, but may sometimes also pertain to medical or other matters. The designated person, the “attorney in fact,” does not need to be an attorney, and in most cases is not. She should be a trusted friend or relative, someone to whom you would entrust such power. The term “durable” means that her power of attorney (her proxy decision-making authority) will endure if you become incompetent–if you lapse into a coma, for instance.

In fact, the power of attorney can be written in such a way that it does not go into effect unless and until you do become incompetent. This mechanism does not apply to many cases, because, in order to create a power of attorney (durable or otherwise), you must be competent to begin with. People with mental retardation can designate someone to be their “attorney in fact,” their decision-maker, only if they are competent to do the designating. This device can be useful, however, in states where it is statutorily authorized, for high-functioning people with mental retardation who are at risk of becoming incompetent due to advancing age or some other cause of deterioration of the mental processes.

But what if none of these alternatives is a workable possibility for the situation at hand? What if a major medical procedure has been recommended (e.g., surgery requiring a general anesthesia) for a person who does not seem capable either of understanding the proposed procedure and its risks or of making the required decision? Or, what if the person adamantly refuses a procedure that caregivers believe is very important to his well-being? What if the decision concerns the possible expenditure of a substantial amount of the funds of a person of questionable competence, or involves sensitive areas of personal privacy, such as birth control? In such cases, you may have to turn to court for a judge’s determination of whether the person is competent to decide the question.

Although there is no formal test, and no agreed-upon standard for determining competencies, one formulation is that the individual should have “sufficiently stable and developed personal values and goals, an ability to communicate and understand information adequately, and an ability to reason and deliberate sufficiently well” about the particular choices to be made.

If the court finds the person competent, then that person’s decision must be respected, even if it appears to be wrong to you, the medical people, and society as a whole. Under our system, each of us who is legally competent has the right to make foolish decisions about our own best interests.

If, on the other hand, the court finds the person incompetent to make the decision, then a proxy decision-maker, called a guardian will be appointed by the court. This is done, of course, to help the person, and to protect his interests and welfare. However, we should recognize that this legal mechanism for exercising society’s paternalistic instincts and responsibilities also imposes restrictions on the individual and deprives him of some measure of autonomy by permitting someone else to overrule his wishes and reverse his decisions.

Guardianship

Guardianship is a legal relationship, authorized by the law in Utah, between a ward (the person whom a court has declared to be incompetent or incapacitated to make particular decisions) and a guardian (whom the court appoints as the surrogate decision maker for the ward). Terminology regarding this relationship varies somewhat among jurisdictions.
The ethical justification for state (i.e., judicial) imposition of a surrogate decision maker for an incapacitated individual in the realm of both personal and financial decisions is found in the two fundamental and related principles of nonmaleficence (“first, do no harm” to others, or primum non nocere) and beneficence, or “doing good.” These ethical principles have been transformed into the legal doctrine of parens patriae (literally, “father of the land”), the inherent responsibility and authority of a benevolent society to intervene, even over objection, to protect people who cannot protect themselves. Thus, instead of abandoning cognitively and/or emotionally incapacitated individuals to a superficial, meaningless autonomy to make harmful decisions or to neglect their own basic needs, the state may exercise its authority to protect even unwilling disabled individuals from their own follies or deficits.

Advance financial and health care planning by currently capable individuals (through, for example, durable powers of attorney, trusts, and living wills) generally fosters continuing autonomy and helps ensure that when the current exercise of autonomy is no longer feasible, decisions are made and implemented for the individual in the least restrictive or intrusive manner reasonably available. The least-restrictive-alternative principle, a well-established tenet of American constitutional law incorporated into the Fourteenth Amendment’s due process protections of liberty, is predicated on the ethical ideas of autonomy, nonmaleficence, and beneficence. A central objective of advance planning is to keep private decisions within the private (i.e., nonjudicial) sphere.

Although it usually works reasonably as intended, advance financial and health care planning sometimes goes badly awry. An agent named under a now incapacitated person’s durable power of attorney may start misusing or exploiting the person’s finances, abusing the person, or grossly neglecting the person’s vital needs. To a large extent, the success of advance-planning mechanisms relies on the good faith and integrity of the participants.

For a growing number of older persons whose cognitive and/or emotional impairments would technically qualify them for guardianship, plenary or limited, the most pressing practical problem is the unavailability of family members or close friends who are willing and able to assume guardianship responsibilities. Where a willing family member is present, state family-consent statutes and the informal, long-standing practice of looking to “next of kin” ordinarily substitute for the initiation of guardianship proceedings on behalf of incapacitated older persons.
If the court finds that the person with mental retardation is incapable of making decisions about financial matters, but is able to handle his or her own personal affairs, the court may, after a finding of incompetency, appoint a “conservator,” a person authorized to manage the incompetent person’s financial affairs, but not his other affairs.

The Guardian

It is the responsibility of the person seeking the guardianship to find someone willing to serve as guardian. This is often not an easy task. The best guardian is usually a family member, relative, or friend. Occasionally it is someone on the staff of the service-providing agency who has formed an attachment to the individual. The latter possibility is ordinarily not a good idea, however, because of the potential for conflicts of interest. After a person is nominated to be guardian, it is up to the court to decide whether he or she is suitable for the role and, if so, to make the appointment. Guardians are authorized to make all of their ward’s decisions. In doing this, guardians must act to protect the welfare of their ward and must always make the decision they think is in the ward’s best interest. Before you select a guardian for your relative, consult with an experienced North Salt Lake North Salt Lake Utah family lawyer. Let the lawyer speak to the person and explain the duties of the guardian. It is important that the person understands the duties of a court appointed guardian. Remember by getting a guardian appointed you are essentially transferring the right of your relative to take decisions onto the guardian. So, the guardian has to be a person who can be trusted. If guardian does not discharge his duties, you can petition the court to have the guardian replaced. However, this requires making an application to the court and can be avoided if you choose the guardian carefully the first time.

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