The full issue, in which this article as well as any footnotes and endnotes appears, can be found here.
“Hazel”, age 89, was recently hospitalized after a fall at home and received surgery to repair her broken hip. It has been determined that she is unable to return home due to her increased care needs and the condition of her home. She is now stabilized and ready for discharge to long term care: the hospital discharge planner has made referrals to the local nursing homes, but all are refusing to admit her unless she has a guardian.
This scenario, and others like it, is garnering attention across theand is often referred to as a “hospital to guardianship Problematic as an inelegant solution to a complicated problem, this approach pits healthcare providers against advocates, families, and state law, while leaving patients in legal and practical limbo: stuck in acute care settings they no longer need or in a long term care setting they don’t want following the removal of their decision making rights.
Systems have historically over-relied on guardianship, leading to a loss of rights and over-burdened courts. New approaches are occurring nationally, including adoption of supported decision-making principles. More and more states’ statutes are recognizing Supported Decision Making as a viable and necessary alternative, as well as the importance of supporting and protecting the autonomy of people with disabilities. There needs to be a change in how and when we turn to guardianship. This was a focus of the Fourth National Guardianship Summit in May 2021, where advocacy, legal, judicial, scholar, and guardian attendees adopted 22 recommendations around the themes of maximizing autonomy and ensuring accountability: “Six working groups convened to address the rights of persons subject to guardianship; supporting decision-making; limited guardianship, protective arrangements, and diverting guardianship pipelines; rethinking monitoring and addressing abuse by guardians; fiduciary responsibilities and tensions; and developing guardianship court improvement
Minnesota’s Guardianship Information Line annually fields over a thousand inquiries from individuals subject to or at risk of concerned families, and professionals across the health care system, social services, legal and educational agencies, and residential communities seeking information about guardianship of adults with intellectual/developmental disabilities, mental health disorders, brain injuries, and neurocognitive disorders. With a focus on appropriate use of, and avoiding unnecessary guardianships and utilization of less restrictive approaches, many are relieved to learn that their family member’s or client’s needs can be addressed without the involvement of the court.
For others, such as hospital professionals (discharge planners, clinicians and risk management) discussions about alternatives to guardianship may be unwelcome given the complexities of their patients’ situations and their need for more immediate solutions. Suggestions of the need to explore alternatives to guardianship present an untenable situation where hospital staff feel caught between the imminent need for discharge and a seeming inability to arrange a feasible discharge plan that does not involve guardianship.
Guardianship requests from health care systems for patients who have been identified as lacking decision-making capacity are usually related to:
- Patient is refusing to consent to recommended discharge plan.
- Lack of suitable care providers or care settings for the person due to lack of beds, lack of staff to manage complex medical or behavior needs.
- Need for discharge imminently: perceptions of lack of time to work through alternatives combined with belief that guardianship is a faster, more efficient, simpler way to solve the problem.
- Nursing Home (or home care, or hospice or other provider) will not accept the patient into care without a guardian or other legal decision maker.
While these needs for a solution involving guardianship seem very straightforward to hospital staff, what they often don’t realize is that statutes and best practices dictate that less restrictive alternatives must be meaningfully tried prior to seeking the removal of decision-making rights via the appointment of a guardian. Most states’ laws require that the court grant guardianship only if the need for protection and well-being is demonstrated and/or that there are no less restrictive options
Problem resolution for these complex situations requires individualized, creative solutions. Successful approaches are those that both acknowledge the realities facing health care systems and that help them understand the limitations of guardianship, the significance of the removal of patients’ rights, and the ethical and legal requirements to meaningfully attempt and rule out guardianship alternatives.
Capacity, Consent, and Less Restrictive Alternatives
In the fast-paced world of hospital admissions and discharges, and the need to secure an available bed in a long-term care setting (be it nursing home, assisted living, or other care setting), a guardianship may appear to be the most efficient approach. But many state laws insist that it be reserved as the last resort, and with good reason. The powers and duties granted to a guardian are rights that are removed from the person, and decisions made by the guardian with financial and personal authority may be irreversible (such as selling a home or consenting to an amputation).
Therefore, a thorough assessment of the person’s situation, needs, and resources is necessary. The PRACTICAL Tool guides would-be petitioners through a series of factors, starting with the presumption that guardianship is not necessary in order to give serious attention to identifying the specific reasons guardianship is being contemplated, in order to evaluate whether the identified deficits are due to a treatable, reversible condition or one that is likely to improve with time or by addressing deficits (eyeglasses, hearing aids, cultural or language interpreters, communication boards, etc.) and to ensure, when evaluating decision making capacity, that such decisions are not made until the person is at their best possible level of functioning.
Additionally, beware of the tendency to question a patient’s capacity because they are making decisions we don’t agree with, or to equate physical or financial inability to meet needs with an inability to meet needs based on cognitive deficits. The PRACTICAL Tool also reminds us that that neither a diagnosis, a low cognitive or functional screening score, nor an inability to independently arrange for needed care and services is sufficient reason to seek the appointment of a guardian: rather, a thorough exploration of available family, friends, and professionals to help the person receive needed care and supports may be sufficient to meet their needs without the imposition of a guardian and removal of rights. Though hospital staff may express that they don’t have time to delve into this process of exploring less restrictive ways to meet a patient’s needs, it is what is ethically and legally required.