Still a Best-Kept Secret in Adult Guardianship: Using the Skills of Occupational Therapists

Volume: 34 Issue: 4

by

About the Author: Erica Wood is Assistant Director of the Commission on Law and Aging at the American Bar Association in Washington, DC, and Orit Simhoni is an occupational therapist and national certified guardian in Washington, DC.

(Note: For a footnoted version of this article, please download the pdf issue of BIFOCAL Vol. 34, Issue 4.)

It’s 7:00 a.m. and Wanda rushes up to the nurse’s station to review the patient’s hospital record. Admitted with a right hip fracture after a fall in her bathroom, Mrs. Smith has a history of osteoarthritis, diabetes, hypertension, and dementia. Mrs. Smith is medically stable and wants to be discharged home as soon as possible. Wanda has already set up the patient bathroom to assess Mrs. Smith’s ability to safely transfer in and out of a bathtub and take a shower, using a shower seat, grab bars, safety mat, and handheld shower head with hose extension. Wanda will carefully document her observations and recommendations: Mrs. Smith’s daughter will need to be trained to supervise the transfer, set the water temperature, and remind Mrs. Smith to dry her feet completely.  

Wanda is an occupational therapy practitioner. Technically, the practice of occupational therapy (O.T.) means “the therapeutic use of occupations, including everyday life activities with individuals, groups, populations, or organizations to support participation, performance, and function in roles and situations in home, school, workplace, community, and other settings.” You can find O.T.s in homes, schools, workplaces, nursing homes, and many community settings, assisting people of all ages and abilities to do the things they want to do through the therapeutic use of everyday activities (occupations). Focusing on the individual (e.g., Mrs Smith), the task (e.g., bathing) and the environment (e.g., bathroom), the O.T.’s concern is functional performance. Wanda will see if Mrs. Smith’s impairments (memory loss, decreased balance, and low vision) can be eliminated through rehabilitation strategies (such as memory cards, balance exercises, and new eyeglasses). If this is not possible, Wanda will suggest compensatory strategies (for example, using bath safety equipment) and education (training the daughter to supervise).

This article highlights ways in which the unique skills of occupational therapists are valuable in the context of adult guardianship—and often in any caregiving scenario. An occupational therapist may:

  • Play a role in assessment of decision-making prior to or after the filing of a petition;
  • Serve as a court visitor;
  • Serve as a guardian;
  • Act as a resource or support for guardians or guardianship programs; and
  • Serve as a witness in a court proceeding.

Occupational therapy skills can be used to:

  • Improve functional communication with an individual;
  • Assess ability to manage money, drive a car, live alone;
  • Review medical records to evaluate rehabilitation needs and potential;
  • Provide safety recommendations in the least restrictive environment;
  • Define the least level of assistance necessary; and
  • Train caregivers to promote independence.

Occupational Therapist in Decision-Making Assessment

The definition of “incapacity” or “diminished capacity” in determining the need for appointment of a guardian has evolved considerably in state law. “Incapacity” used to be based primarily on medical labels such as “dementia,” “schizophrenia,” “mental illness,” or even “advanced age.” Today, state laws generally rely on a combination of some or all of four elements—medical condition, functional ability, cognitive ability, and risk of harm. Functional ability is particularly important and relates to whether an individual can, as provided by the Uniform Guardianship and Protective Proceedings Act, “meet the essential requirements for physical, health, safety, or self-care [including] with appropriate technological assistance.” Assessing functional ability is central to the occupational therapist’s role.

A national capacity assessment Handbook for Judges recognizes two additional factors in assessing decision-making capacity—consistency of choices with the person’s expressed values and preferences; and means to enhance capacity through practical accommodations and medical, psychosocial, or educational interventions. In looking at “means to enhance capacity” the question is whether and how the person can use resources and environmental adaptations to achieve a higher level of functioning. This is where an occupational therapist comes in!

At age 86, Mr. Sammons is forgetful. His grandson is worried, and has filed a petition for guardianship with the aim of moving Mr. Sammons from his own home to assisted living. Mr. Sammons wants to live at home. A personal care assistant cares for Grandpa during the day, but he is alone at night. Wanda was called in to evaluate his self-care skills and furnish practical strategies to enable Mr. Sammons to live at home. Wanda arranged for installation of an electronic medication reminder, a personal emergency response system, and kitchen appliances with automatic shut-off. She suggested that the grandson set up a remote monitoring unit (“Granny cam”) so that he could check on Mr. Sammons at night. With these safeguards in place, Mr. Sammons was able to live at home, prompting the grandson to withdraw the petition.     

Occupational Therapist as Court Visitor

In many states and under the Uniform Act, upon receipt of a petition for guardianship, the court must appoint a “visitor” with “training or experience in the type of incapacity alleged.” The visitor is to interview the person and the proposed guardian, explain the petition and the hearing rights, determine the person’s views, visit the proposed place of residence, conduct any other needed investigation and report to court.

The Uniform Act provides that the visitor should summarize “daily functions the respondent can manage without assistance, could manage with the assistance of supportive services or benefits, including use of appropriate technological assistance, and cannot manage.” The Comments to the Act note that the visitor also is “charged with confirming compliance with the Americans with Disabilities Act when visiting the respondent’s dwelling and the proposed dwelling. . .”

In short, visitors play a key role in informing the court as to whether a guardianship is needed, whether there is a less restrictive alternative that might work, whether the scope of the order could be limited, and how the person might remain as independent as possible. The skills of an occupational therapist are well suited to perform the visitor functions—and may well influence whether the judge considers limiting the scope of the order to preserve essential rights as much as possible—or relying on a less restrictive decision-making option.

Having completed his inpatient rehab stay, post left brain infarct, Mr. Alan is ready for discharge, but his speech and writing are still impaired. The hospital social worker is unable to get Mr. Alan’s consent for discharge to a nursing home. A guardianship petition has been filed, and Wanda was appointed as a visitor. Wanda provides the results of the Allen Cognitive Level Screen which supports Mr. Alan’s need for 24 hour supervision—but not 24 hour nursing care. She recommends an assisted living residence. Using a communication board and other techniques that Wanda has provided, Mr. Alan is able to communicate his preferences to the social worker: he wants to leave the hospital and go to assisted living. The social worker assures that the assisted living residence will provide speech therapy services. Based on these findings, the Court appoints a temporary (90-day) guardian and orders a reassessment of Mr. Alan, to include the speech pathologist’s report.

Occupational Therapist as Guardian

Serving as a guardian is truly one of society’s most challenging tasks. Inherent in the role is a constant negotiation of the tension between rights and needs, self-determination and protection. National standards—and many state laws—emphasize that guardians should give the person “every opportunity to exercise those individual rights that the [person] is capable of exercising;” should maximize “self-reliance and independence,” and should encourage the person to “act in his or her own behalf” whenever possible.
Moreover, standards and many state laws call for the guardian to “develop and monitor a written guardianship plan” setting forth goals to “address medical, psychiatric, social, vocational, educational, training, residential and recreational needs.” Recent national recommendations stress that this should be a “person-centered plan.”

If a family member is not available and appropriate to serve as guardian, the skills of an occupational therapist contribute to a good foundation for a professional guardian.

Now residing on the secure unit of a psychiatric hospital, Ms. Lin seems fairly content, but when her guardian (an occupational therapist) visits, she complains that the other residents don’t like her and therefore she stays out of all the activities. The nurse explains that Ms. Lin talks back to the voices she hears, often cursing aloud—and annoying, distracting or frightening the other residents, who think she is talking to them. Medication is not the answer. The O.T. guardian has a solution: Ms. Lin wears a personal radio headset, and singing to the music, blocks the “voices.” Alternatively, she wears a bluetooth device: Other residence and some of the staff perceive that Ms. Lin is just talking on her cell phone! She’s now a welcome participant in social and recreational activities, as provided in her individualized, person-centered guardianship plan, and is able to interact and function more effectively.

Occupational Therapist as Resource for Guardians

Family guardians, professional guardians, and public guardianship programs often encounter questions in which an occupational therapist would be helpful:

  • What kind of wheelchair would be best? What assistive devices would make it easier for the person to prepare her own food? How does a person get dressed using only one hand? What methods allow a wheelchair-user to get up and down the steps in an emergency? What options are available to don and doff socks and shoes without bending down? What’s the best way to sleep after a hip replacement?
  • How should a caregiver select activities to improve an individual’s memory or attention span? What skills can the person sharpen to engage in paid work, volunteer or recreational activities?
  • How can banking be structured to promote money management skills?
    Which exercises improve balance and coordination? Which games facilitate interaction with the family?
  • Knowing where to turn for occupational therapy advice can be a key to “good guardianship.”

Occupational Therapist as Witness

In a contested guardianship proceeding, an occupational therapist may be called to address issues of capacity, adaptation to an environment, or ability to live independently. The O.T. may report the results of standardized cognitive tests, driving evaluations, money management skills, and coping abilities in both familiar and unfamiliar settings; and differentiate an individual’s abilities in performing routine, non-routine, and emergency tasks. The O.T. can compare demonstrated performance to what a person claims to be able to do.

In all of these roles, an occupational therapist contributes unique skills, making guardianship and other decision-making options work better, or perhaps avoiding the need for a guardianship—and making the person more independent. In some guardianship cases, the physician may write an order for an O.T. in accordance with the person’s particular needs and setting.

To find an occupational therapist in your area, see the American Occupational Therapy Association at http://www.aota.org/ and look under “state associations;” or see the National Board for Certification in Occupational Therapy at http://www.nbcot.org/index.php?option=com_content&view=article&id=17&Itemid=111 for a regulatory body contact list by state. ■

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