Functional Evaluation of the Elderly in Guardianship Proceedings

The institution dates at least to Roman times, and apparently had as its root the protection of the ward's property. Brakel S.J. Rock R.S. , The Mentally Disabled and the Law (University of Chicago Press, Chicago, Ill.) (rev. ed. 1971) at 250.

Guardianship of the estate is authorized in all states. Where the Uniform Probate Code has been adopted, guardianship of the estate is termed conservatorship and the conservator takes on the duties of a trustee. Uniform Probate Code §5–147. This distinction is immaterial to the thrust of this paper; thus, the terms “guardian” and “conservator” will be used interchangeably as will be the terms “ward,” “incompetent,” and “incapacitated person.” On guardianship of the estate, see Effland R.W. , Caring for the Elderly under the Uniform Probate Code, Arizona Law Review 17(2): 373–412 (1975); Note, Legislation: The New York Conservator Law, Buffalo Law Review 22(1): 487–98 (Fall 1972) [hereinafter referred to as New York Conservator Law];, Comment, An Assessment of the Pennsylvania Estate Guardianship Incompetency Standard, University of Pennsylvania Law Review 124(4): 1048–79 (April 1976) [hereinafter referred to as Pennsylvania Estate Guardianship].

Guardianship of the person involves such decisions as where the ward will live, who will care for him, and what activities he will be permitted. See Pickering C.L. , Limitations on Individual Rights in California Incompetency Proceedings, University of California at Davis Law Review 7: 457–86 (1974) [hereinafter referred to as California Incompetency Proceedings].

In some states, if the court does not stipulate which type of guardianship is ordered, a statutory presumption favors “full” guardianship of both person and estate. See, e.g., Ohio Rev. Code Ann. §2111.06 (Page Supp. 1983): If the powers of the person appointed as guardian of a minor or incompetent are not limited by the order of the appointment, such person shall be guardian both of the person and estate of the ward. In every instance the court shall appoint the same person as the guardian of the person and estate of any such ward, unless in the opinion of the court the interests of the ward will be promoted by the appointment of different persons as guardians of the person and of the estatehellip;. A guardian of the person shall have the custody and provide for the maintenance of the wardhellip;.

In states adopting the Uniform Probate Code, title to the ward's property is placed in the conservator. In more traditional states, disposition of the ward's property is subject to supervision of the court; any substantial alteration in the property requires specific permission. Effland, supra note 2, at 379.

An incompetent in most states is not free to determine his own place of residence, to vote, marry, drive, choose agents, or enter into contracts. Note, The Disguised Oppression of Involuntary Guardianship: Have the Elderly Freedom to Spend? Yale Law Journal 73(3): 676–92 (March 1964) [hereinafter referred to as Disguised Oppression).

See Frolik L.A. , Plenary Guardianship: An Analysis, A Critique, and a Proposal for Reform, Arizona Law Review 23(2): 599–660 (1981) (advocating a more limited model for guardianship designed to supplement the deficits exhibited by the ward). See also Comment, In Re Boyer : Guardianship of Incapacitated Adults in Utah, Utah Law Review 1982(2): 427–43 (advocates the limiting of guardianship to deficits of the ward).

Even where only a conservatorship of the estate is imposed, control over the ward's activities can be extremely broad: Seldom will there be a need to appoint a guardian for an elderly person, however, since appointment of a conservator will be adequate in most situations. The conservator's powers are ample to enable him to arrange whatever physical care is necessary, typically nursing home carehellip;. The only real legal need for a guardian might arise when consent to medical treatment is required, but physicians and hospital administrators often are content with the signature of a spouse, or an adult child on behalf of the parent. Effland, supra note 2, at 378–79 (citation deleted).

In contrast to civil commitment of the mentally ill, which relates more to police power and protection of the public, guardianship's purpose is protection of the helpless ward and his property. See Horstman P.M. , Protective Services for the Elderly: The Limits of Parens Patriae, Missouri Law Review 40(2): 215, 217–25 (Spring 1975); Regan J.J. , Protective Services for the Elderly: Commitment, Guardianship, and Alternatives, William and Mary Law Review 13:569–622 (1972).

Occasional examples of plaintiffs motivated apparently by greed do appear. See In re Guardianship of Tyrrell, 190 N.E. 687 (Ohio 1963). Nonetheless, most petitioners for guardianship are acting out of concern for defendant's welfare. See Brakel & Rock , supra note 1, at 260–61.

For an example of what can happen when medical treatment is refused, see In re Brooks’ Estate, 205 N.E.2d 435 (Ill. 1965); Alexander G.J. , Remaining Responsible: On Control of One's Health Needs in Aging, Santa Cura Law Review 20: 13, 44–45 (1980).

E.g., Ohio Rev. Code Ann. §2111.01(D) (Page Supp. 1983) (requiring “proper” care of self or property); Utah Code Ann. §75-1-201(18) (Supp. 1983) (“responsible” decisions); N.H. Rev. Stat. Ann. §464-A:2 (VIII) (1983) (“proper” food, clothing, shelter, etc.).

Guardianship of Walters, 231 P.2d 473 (Cal. 1951).

Disguised Oppression, supra note 6, at 683; Annot., 9 A.L.R.3d 811–15.

Mitchell A.M. , Involuntary Guardianship for Incompetents: A Strategy for Legal Services Advocates, Clearinghouse Review 12(8): 451, 456–57 (December 1978).

See generally Butler R. , Why Survive? Being Old in America (Harper & Row, New York, N.Y.) (1975).

E.g., Burgdorf R.L. Jr. , The Legal Rights of Handicapped Persons: Cases, Materials and Text (Paul H. Brookes, Publisher, Baltimore, Md.) (1980) at v. 1–52.

See generally Frolik , supra note 7; Dewey F.A. , Civil Incompetency in Ohio: Determination and Effect, University of Cincinnati Law Review 34(4): 419, 420 (Fall 1965); Zenoff E.H. , Civil Incompetency in the District of Columbia, George Washington Law Review 32: 243, 244 (1963).

In the writer's personal experience, knowledge of such an adjudication can he lethal. The writer has known at least three wards whose physical conditions were not terminal but who refused to eat and died within two weeks of notice that guardianship had been imposed.

See Sherman R.B. , Guardianship. Time for a Reassessment, Fordham Law Review 49(3): 350, 351 (December 1980); Dewey , supra note 18, at 460, 461, n.51.

In re Conservatorship of Browne, 343 N.H.2d 61 (1(1. App. 1976). See Dewey , supra note 18, at 435 (in regard to judicial hospitalization).

Pennsylvania Estate Guardianship, supra note 2, at 1070–71 (discussion of difficulties in predicting behavior).

Prediction is problematic even for those with such training, however. See, e.g., Leifer R. , The Competency of the Psychiatrist to Assist in Determination of incompetency: A Sceptical Inquiry into Courtroom Functions of Psychiatrists, Syracuse Law Review 14(4): 564, 574–75 (1963); Ennis B. Litwack T. , Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, California Law Review 62: 693–752 (1974).

See Frolik , supra note 7, at 604; Zenoff , supra note 18, at 243–46; Dewey , supra note 18, at 434.

See Mitchell , supra note 15, at 451–55.

Dewey , supra note 18, at 434; Sherman , supra note 20, at 351.

Frolik , supra note 7, at 634–36; Zenoff , supra note 18, at 252.

Frolik , supra note 7, at 629–33. See also Pennsylvania Estate Guardianship, supra note 2, at 1049–50, n.14, citing University of Miami Law Center, Sixth Annual Institute on Estate Planning §72.1502 (1972); Disguised Oppression, supra note 6.

For a small sample, see Older Americans Resources and Services (OARS) Multidimensional Functional Assessment Questionnaire, in Multidimensional Functional Assessment: The OARS Methodology: A Manual ( Pfeiffer E. , ed.) (Center for the Study of Aging & Human Development, Duke University, Durham, N.C.) (1975); Remnet V.L. , The Home Assessment: A Therapeutic Tool to Assess the Needs of the Elderly, in Nursing and the Aged ( Burnside I.M. , ed.) (McGraw-Hill, New York, N.Y.) (1976) (assessment includes home safety and cleanliness, interpersonal relationships and pets, general health, personal care and safety, mobility, dietary needs, financial management, use of defense mechanisms); Smith D.W. Germain C.P.H. , Care of the Adult Patient: Medical Surgical Nursing (Lippincott, Inc., Philadelphia, Pa.) (1975) at 61 (a partial list of items that are assessed includes physical agility, habits conducive to health maintenance, psychological orientation (sociability, memory, interest in the world, use of spare time), compensation for physical and psychological disability, access to and quality of relations with others, financial resources, and physical environment); Wolanin M.O. Phillips L.R.F. , Confusion: Prevention and Care (C.V. Mosby, St. Louis, Mo.) (1981) at 5878 (assessment of the elderly should include cognitive domain, reality domain, tests of perception, physical abilities to perform tasks of daily living, social interactions, structure and physiology, life history).

See Pfeiffer E. , A Short Portable Mental Status Questionnaire for the Assessment of Organic Brain Deficit in Elderly Patients, Journal of the American Geriatric Society 23(10): 433–41 (October 1975) (ten item test with demonstrated correlation to clinical diagnoses).

But see Leifer , supra note 23 (questioning scientific standards of psychiatry).

See Pfeiffer , supra note 30.

See Multidimensional Functional Assessment, supra note 29.

Statutes that mandate court visitors require that the visitor visit the defendant's present place of residence, although the interview with defendant need not take place there. Mont. Code Ann. §72-5-315(3) (1983); Cent N.D. . Code §30.1-28-03(2) (Supp. 1983); Utah Code Ann. § 75-5-303(2) (1978).

The writer's own bias in conducting such evaluations and the bias exhibited therein should be made clear. I routinely take care to inform a guardianship defendant that I will make every effort to see him as competent. This enhances trust and enables defendant to present himself at his best. I have found that deficits severe enough to mandate a recommendation that defendant be found incompetent cannot be easily disguised. If a case falls on the borderline, the presumption of competency should prevail.

In some states, a court visitor or court-appointed evaluator is mandated to report his findings from a series of interviews to the court. See Cent N.D. . Code §30.1-28-03 (2 & 3) (Supp. 1983); Colo. Rev. Stat. §15-14-303(2)(e) (Supp. 1983); Mont. Code Ann. §72-5-315(3) (1983).

“High level wellness,” a term of art in the health care field, refers to fulfillment of one's complete potential. Dunn H.L. , High Level Wellness (W. Beatty Co., Arlington, Va.) (1971). The level of wellness will vary with the individual, but competency evaluation measures the individual's distance from the floor, or minimally required level, not from the ceiling of high-level wellness.

See Comment, Appointment of Guardians for the Mentally Incompetent, Duke Law Journal 1964: 341, 343–44 [hereinafter referred to as Appointment of Guardians]. This article discusses where that point may be, and notes that “tests generally indicate no measuring standard to which his ability to manage ordinary affairs must conform.” Id. at 343.

E.g., In re Emsweiler, 8 Ohio N.P. 132, 11 Ohio Op. 10 (1901) (“a gibbering, slobbering lemon-headed wildman”). See also Appointment of Guardians, supra note 38, at 343 (“insanity, idiocy, lunacy, imbecility and unsoundness of mind”).

See Burgdorf , supra note 17, at 3–14; Note, Guardianship in the Planned Estate, Iowa Law Review 45: 360, 367 (1960).

Generally, consciously chosen aberrant behavior is excluded if not caused by an illness (e.g., alcoholism, mental illness) or a condition (e.g., mental retardation, old age) recognized in a statute. The right to be eccentric is intended to be protected. See In re Boyer, 636 P.2d 1085, 1089 (Utah 1981).

See, e.g., Ohio Rev. Code Ann. §2111.01(D) (Page Supp. 1983). Many states have dropped this provision, concentrating only on the defendant's ability to care for himself.

Ohio Rev. Code Ann. §2111.01(D) (Page Supp. 1983) For an excellent analysis of the application of this statute, see Dewey , supra note 18; Disguised Oppression, supra note 6, at 676.

For a suggestion that “advanced age” as the sole classification may be unconstitutional, see Pennsylvania Estate Guardianship, supra note 2; Dewey , supra note 18, at 423. See also In re Irvine's Guardianship, 52 N.E.2d 536 (Ohio App. 1943) (advanced age insufficient basis without allegation of mental illness). Accord In re Guardianship of Gallagher, 441 N.E.2d 593 (Ohio App. 1981).

See, e.g., Rousseau A.M. , Shopping Bag Ladies (Pilgrim Press, New York, N.Y.) (1981).

See Frolik , supra note 7, at 604: “The decision whether to approve the guardianship should be based upon the quality of the individual's decisions and behavior rather than on identifying the cause of the erratic decisionmaking or behavior.” Where this argument is accepted, clearly, functional evaluation data are needed.

Sometimes the causal linkage requirement is ignored or misplaced in reported opinions. See Pennsylvania Estate Guardianship, supra note 2, at 1060. See also In re Estate of Stevenson, 256 N.E.2d 766 (Ill.), cert, denied, 400 U.S. 850 (1970). “The justification for the appointment of a conservator is founded primarily on the incapability of managing one's person or estate and not on the cause of that incapability.” 256 N.E.2d at 769. See also Oak Park Trust & Savings Bank v. Fisher, 225 N.E.2d 377, 384 (Ill. App. 1967) (medical testimony causally linked defendant's cerebral arteriosclerosis and her inability to manage her estate).

Pennsylvania Estate Guardianship, supra note 2, at 1060, citing Sigel's Estate, 82 A.2d 309 (Pa. Super. 1951).

See In re Conservatorship of Browne, 343 N.E.2d 61 (Ill. App. 1976). The only evidence submitted to the probate court was the petition and affidavits from two physicians alleging that appointment of the conservatorship would be in Browne's best interest, but giving no factual supporting data. The appeals court reversed the appointment, citing lack of evidence on which it could be based.

See Burgdork , supra note 17, at 46–49.

Utah Code Ann. §75-1 −201 (18) (1978).

It is slightly more complicated in Montana: “Or which cause has so impaired the person's judgment that he is incapable of realizing and making a rational decision with respect to his need for treatment.” Mont. Code Ann. §72-5-101(1) (1983).

In re Boyer , supra note 41, at 1089. See Fazio v. Fazio, 378 N.E.2d 951 (Mass. 1978).

In favor of limited guardianship, see Frolik , supra note 7, at 652–59.

Mont. Code. Ann. §72-5-316(1) (1983).

Id. §§72-5-316 (2) & (3) (1983). But cf. Colo. Rfv. Stat. §15-14-304(4) (Supp. 1983) (if limits of guardianship are not specified, guardian shall have full powers and duties).

Frolik gives the label “therapeutic.” Frolik , supra note 7.

N.H. Rev. Stat. Ann. §§464-A:2(VII), (XI) (1983).

Id. §464-A:2(Ill).

Id. §464-A:2(XI).

Id.

In re DeLucca , 426 A.2d 32 (N.H. 1981).

But see Frolik , supra note 7, at 628. This author argues that this consideration can be repressive; “any behavior that is self-harmful gives reason for state interventionhellip;. In the therapeutic state, one is not ‘free’ to act in a manner harmful to oneself.” (italics in the original).

N.H. Rev. Stat. Ann. §464-A:4(Ill) (1983).

N.H. Rev. Stat. Ann. §464-A:8(IV) (1983).

But see In re Joyce, 19 Ohio Op. 506 (Ohio 1970) (examination or observation of defendant not a violation of constitutional rights if by court order).

Warren S.D. Brandeis L.D. , The Right of Privacy, Harvard Law Review 4(5): 193–220 (December 15, 1890); Restatement (Second) of Torts §652b (1976).

Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Ingraham, 480 F.2d 102 (2d Cir. 1973).

See explanations of functional assessments, supra note 29, and accompanying text.

Fed. R. Civ. P. 26(b) (1): “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending actionhellip;.”

Some guardianship statutes make provision for closure of the hearing on defendant's request or that of his attorney or guardian ad litem. See Mont. Code Ann. § 72-5-315(4) (1983); Colo. Rev. Stat. §15-14-303(4) (1983); N.H. Rev. Stat. Ann. §464 A:8(VI) (1983) (provisions for confidentiality of findings).

Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52 (1964); Counselman v. Hitchcock, 142 U.S. 547 (1892).

See Katz v. Superior Court of City and County of San Francisco, 141 Cal. Rptr. 234 (Cal. App. 1977). The appellate court stated that “liberty is no less precious when forfeited in a civil proceeding than when taken as a consequence of a criminal convictionhellip;” and imposed “the test of certainty [that is] applied in the criminal law because fundamental rights are at stake.” Id. at 234, 243.

The defendant may not be the only one needing protection. See Rau v. Tannenbaum, 444 N.Y.S.2d 635 (N.Y. App. Div. 1981) (plaintiff who was not judged incompetent because guardianship proceedings were dismissed by agreement was permitted to sue his physician for breach of the physician/patient privilege for testifying against him in the guardianship hearing).

Oak Park Trust & Savings Bank v. Fischer, 225 N.E.2d 377, 381 (1967). See Frolik , supra note 7, at 633–34, quoting American Bar Association Commission on Mentally Disabled, Model Statute §3(19) (1979): “The function of the guardian ad litem is to assist individuals to determine their interests and, if they are incapable of doing so, of acting in their stead.”

Mazza v. Pechacek, 344 F.2d 666 (D C. Cir. 1956).

See In re Guardianship of Corless, 440 N.E.2d 1203, 1207 (Ohio 1981) (requiring judicial observation). Accord In re Guardianship of Gallagher, 441 N.E.2d 593 (Ohio 1981). Cf. Myers’ Estate, 150 A.2d 525 (Pa. 1959) (trial court's observation was a significant but discretionary factor in the upholding of the incompetency determination).

See Appointment of Guardians, supra note 38, at 347 n.44, citing Tyrrell, supra note 10; In re Slamey, 146 N.E.2d 466 (Ohio App. 1957) (error to refuse to allow defendant's attorney to examine, but decision reversed on other grounds).

In re Estate of Stevenson, supra note 47; In re Estate of Liebling, 254 N.E.2d 531 (Ill. App. 1970). See, e.g., Colo. Rev. Stat. §15 14–30 (1974); Neb. Rev. Stat. §30–2619 (Supp. 1983); N.M. Stat. Ann. §45-5-303 (1978).

In re Guardianship of Corless, 440 N.E.2d 1203 (Ohio App. 1981).

Compare N.D. Cent. Code §30.1-28-03 (Supp. 1983) (both court-appointed physician and court visitor mandatory) with Idaho Code Ann. §15-5303 (Supp. 1983) (court visitor mandatory, but social or charitable agency may perform function to avoid undue delay or expense) and Hawaii Rev. Stat. §560:5-303(b9) (Supp. 1983) (visit by court officer if so ordered by the court).

See Utah Code Ann. §75-5-303(2) (1978); N.D. Cent. Code §§30.1-28-03(2 & 3) (Supp. 1983).

See Comment, House Bill 2002. The Protection of Persons under Disability and the Management of Their Property, Law and Social Order 1973: 435–53. Some states have amended their court visitor provisions to encourage use of charitable organizations as functional evaluators. See, e.g., Idaho Code Ann. §15-5-303(b) (Supp. 1984). North Dakota not only encourages use of charitable or public agencies, but also allocates costs of guardianship hearings, first to the incapacitated person if the court finds him able to pay, second to his spouse or parents, third to the state department of human services. N.D. Cent. Code §§30.1-28-03(3 & 4) (Supp. 1983). See also Effland, supra note 2, at 385–86, n.92.

It is not irrelevant that court-ordered functions are usually paid by someone, public or private, and that payment will be enforced. Social agencies, hard-pressed by federal funding cutbacks, are unlikely to oppose such a contract.

Blenkner M. Bloom M. Nielsen M. Weber R. , Protective Services for Older People: Final Report: Findings From the Benjamin Rose Institute (Benjamin Rose Inst., Cleveland, Oh.) (1974) at 183–85 (concluding that the result of social service assessment and intensive protective services was an increased rate of institutionalization and mortality for the experimental group in the Institute's study). See also Frolik, supra note 7, at 615–18.

See Blenkner , supra note 85; Regan, supra note 9, at 617–19

See In re Wilson's Guardianship, 155 N.E. 654, 655 (Ohio App. 1926).

See Pensylvania Estate Guardianship supra note 2, at 1065–68; In re Schmidt's Guardianship, 352 P.2d 152, 154 (Or. 1960); Guardianship of Estate of Brown, 546 P.2d 298 (Cal. 1976).

See Pennsylvania Estate Guardianship, supra note 2, at 1070–72.

See United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).