Once the incompetence threshold has been reached, there are no exclusions of types of people who can be put under guardianship. And, contrary to common belief, there is no standard/automatic length of guardianship, termination date, or specific areas of decision-making granted to the guardian. These are all up to the discretion of the judge, and can be specified in an individualized guardianship decree, which will be signed by the judge.

Competence
Competent people make bad decisions all the time. This may be totally unrelated to competence. Someone can do something dumb, self-destructive, unproductive, and/or socially unacceptable, but still be competent. This includes behaviors such as going for long periods of time without eating or bathing, refusing medical care, letting one's house fall into an unsafe condition, living on the street when one has $1 million in the bank, changing one's will to leave all one's money to one's cat, etc. These actions may be indications that someone is not competent, but they, in themselves do not meet the threshold to make that decision. Only if the person can't weigh the alternatives, understand the consequences of these actions and explain his decision can he be adjudicated "incompetent".

"No Good Answers"
Judge Harms stressed that what often makes these cases difficult is that there are no good answers. Usually this is because there is no good candidate to be named guardian (i.e., lack of family able/willing to serve as guardian). While incompetent people often fall prey to someone who staff are convinced are financially or in other ways abusing the patient, it is still difficult to find a suitable guardian in many such cases.

In response to the first case presented, Judge Harms reminded us that we learned in the session about elder abuse that if we do not get a good response from the elder abuse report that we may want to selectively report to the Disabled Person's Protection Commission. Though cases involving the elderly are not in their area of responsibility they make written recommendations that may be more aggressive and push the appropriate agency to take more aggressive action. For example, they are more likely to go to court to get orders to "knock down the door" if necessary to gain access to the elder.

Timing of Court Dates
In one case staff were concerned that a "friend" of the patient was draining her assets while she was in the hospital. Though this is understandably concerning, the courts may not view this as grounds for an emergency hearing for guardianship, especially if no suitable alternative guardian is immediately available. They generally take the view that since someone can completely drain another's resources in a day or two and there is no way to stop them, and since it is only money, that it doesn't make sense to schedule an emergency hearing. They will try later to recoup what they can for the patient.

A reasonable amount of time to wait for a court date for a non-emergency would be about 3-4 weeks. The court needs time to see if other interested parties surface, if the patient's mental status clears and to investigate the situation. Frankly, the courts take advantage of hospitals as they know that the patient is safe here. The longer the court delays the date the better the chance that the situation will resolve itself or maybe a suitable guardian will materialize. Unfortunately even with knowledge of this tactic, we have no power to change it. Similarly, the court does not view losing a nursing home bed as an emergency that would justify an emergent court date. Judge Harms noted that these cases account for about 2% of the cases seen in Probate court. To schedule an emergency session means bumping another case.

A staff member relayed details of a case in which a family member represented herself in court and got appointed guardian within 24 hours. Why then was this so simple and can we learn anything from this to shorten the time it usually takes to get a guardian appointed? The specifics of that case are what made it quick: the person seeking guardianship was the patient's only child, the medical certificate was good, and the person was not asking for extraordinary power such as making decisions about withholding treatment. But most of our cases aren't this simple. Particularly if there are other family members who might contest the issue, or no good guardian alternative who is already part of the person's support system. Also Judge Harms made her opinion clear that the delay we often experience is not due to not having enough lawyers available to us, but rather to the discretion of the judges as detailed above.

Strangers as Guardians
Judges are reluctant to appoint strangers as guardians. It is difficult to find someone who is trustworthy with that much power, and judges are not eager to be the one choosing someone to have that much control. And there is the opposite concern that if they look too closely, they may find something. If this person is the best alternative, then is it worth the risk to lose this option? There is very little oversight of guardians once they are appointed. There are no criminal background checks conducted. Technically the guardian is to file an accounting of how they've managed the person's finances, but this is not well enforced.

Inappropriate Guardians
Cases come up where we feel our hands are tied because a guardian is in place, but we are concerned about their competence or appropriateness. The courts can and do schedule an emergency hearing to remove a guardian in such cases.

Emergency Medical Treatment
Medical treatment can be provided in an emergency if no one can consent (i.e., to an incompetent patient without a guardian). What is the definition of "emergency" in these cases? There is no absolute rule, but the generally accepted practice is that if someone needs to be treated in a few hours this absolutely falls under the definition. If someone needs treatment within a couple of days, this probably falls under this definition, since it would be difficult to impossible to schedule a court hearing that quickly. But an emergency situation is definitely less than a couple of weeks.