State statutes on guardianship all too often provide ambiguous guidance on decision-making on another’s behalf. As interns at the Office of Elder Justice and Adult Protective Services of the Administration for Community Living, we were asked to find the state statutory standards that guardians use to make decisions on behalf of a protected person. We conducted a review of all 50 states plus the District of Columbia and discerned five distinct categories of decision-making standards for guardians.
Based on the survey and external research, we created definitions for each category.
We defined substitute judgment as when the guardian substitutes the protected person’s values and desires for her own to make decisions about the protected person, and — to the best of the guardian’s ability— discern the protected person’s personal values and wishes.
In the best interest standard, the guardian makes decisions by reference to the guardian’s belief about what is in the general best interest of the protected person.
Maximum self-reliance directs the guardian to foster the protected person’s independence as much as possible.
Least restrictive means the guardian should exercise the least amount of intervention possible, making decisions for the protected person that least restrict the protected person’s decision-making agency.
The last category is other in which the statutory language doesn’t fit into any category or is silent as to guardianship decision-making standards.
Using these definitions, we found that a total of 19 states plus the District of Columbia fit into the substitute judgment category; 12 were best-interest states, seven were maximum self-reliance states, five were least restrictive states, and seven were other category states.
The Uniform Guardianship, Conservatorship, and other Protective Arrangements Act (“UGCOPAA”) is the updated uniform act that contains a section on guardian decision-making. The UGCOPAA provides more instruction to guardians who make decisions for a protected adult by explaining what information the guardian should consider. For example, guardians are directed to use a substitute judgment standard when possible and “consider the adult’s previous or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the guardian.”
When this is not possible, the UGCOPAA explains how the standard is to be applied. It directs guardians to use a best-interest standard unless doing so would put the protected person in danger. In discerning what is in the best interest of the protected person, the statute instructs guardians to consider information “from professionals and persons that demonstrate sufficient interest in the welfare of the adult,” other information “the guardian believes the adult would have considered if the adult were able to act,” and “other factors a reasonable person in the circumstances of the adult would consider, including consequences for others.” As of today, only New Mexico has adopted the act.*
We learned that the relevant state statutes rarely, if ever, describe one clear standard for decision-making. What is more common is for a state to use descriptive language, like “best interest,” within its statute, while not defining the “best interest” standard. Some states prescribe the use of different standards for different types of decisions and others layer two or more standards within the same decision-making statute. Moreover, even after completing the survey, we struggled to understand how states define the terms that exist within their statutes. Additionally, we found little interpretation of the statutes because case law is either missing or unpublished. Some statutes are in the probate code, some in a dedicated elder abuse statute, and some completely silent.
As examples, in Illinois, the statute is relatively unambiguous that guardians should “determine how the ward would have made a decision based on the ward’s previously expressed preferences” when possible. However, “if the ward’s wishes are unknown and remain unknown after reasonable efforts to discern them, the decision shall be made on the basis of the ward’s best interests” (755 ILCS 5/11a-17).
In Arizona, by contrast, the statute requires simply that “In making decisions concerning his ward, a guardian shall take into consideration the ward’s values and wishes” (Ariz. Rev. Stat. 14-5312), but guardians are not given direction for decision-making when the protected person’s values and wishes are unknown, such as when a protected person is in a coma, or in an advanced state of dementia. These are the questions left unanswered by several state guardianship statutes (See e.g. Fla. Stat. Ann. 744.361; Ind. Code Ann. 29- 3-9-4.5; ME ST T. 18–C § 5–313; U.C.A. 1953 § 75-5-312; 14 V.S.A. § 3069).
This statutory ambiguity leaves uncertainty for guardians who are instructed to make decisions based on information they might not have. This issue is further amplified when considering enforcement of most state guardianship statutes. Since many statutes are vague, it leaves room for uncertainty as to whether their implementation and enforcement are robust in that given state. Perhaps as the uniform law is adopted this may change.
We see room for further exploration and research as to how these state statutes are interpreted, implemented, and enforced. The research could encompass the legislative intent of the statute, actual practice in the courtroom, outcome of the legal decision, and best practices of the guardian. We further recommend training for judicial personnel and new guardians, which could include how and when to make decisions on the protected person’s behalf. Courts could also publish instructions for newly appointed guardians based on their state statute and case law precedent. Finally, adoption of the uniform code may mitigate these issues. This too offers room for further exploration.