Competency, Guardianship,

Surrogate Decision-Making
and the Transition Experience
April 9, 2012
Presented by
Michelle Wilder-Baker
Adult Protective Services & Guardianship Coordinator
Division of Aging and Adult Services

Objectives

Types guardianship

Alternatives to Guardianship

Guardianship vs. Durable Power of Attorney

Risky Decisions/Choices/Behaviors

TYPES OF
GUARDIANSHIP

Guardianship
A legal relationship between an individual (the
guardian)
who has been given the legal authority and duty to
make
decisions on behalf of another individual (the ward) who
lacks sufficient capacity to manage his or her own
affairs
or make and communicate important decisions.

[N.C. General Statute 35A]

Types of Guardianship

Guardian of the Person

Guardian of the Estate

General Guardian

(Interim, Limited, or Full)

Guardian of the Person

A guardian appointed solely for the
purpose of
performing duties related to the care,
comfort, and
maintenance of the ward.

[N.C. General Statute 35A-1202]

Guardian of the Estate

A guardian appointed solely for the
purpose of managing
the wards property, estate and
business affairs.

[N.C. General Statute 35A-1202]

General Guardian
A guardian appointed to perform duties
of both the
person and the estate.
[N.C. General Statute 35A-1202]

ALTERNATIVES TO
GUARDIANSHIP

Alternatives to
Guardianship
Family, friends
Individuals may have family or friends
willing and capable of providing for
their needs.
Advanced Directives
Competent individuals may give another
person(s) the legal authority to act on
their behalf when they become unable
to
handle personal and financial
affairs.

Advance Directives
Advanced Directives may include one
or more of the following:

Powers of Attorney
(Limited, General, Durable, & Health
Care)
Advance Instruction for Mental
Health Treatment
Living Will
Trust and Wills

Powers of
Attorney/Surrogate
Decision Makers
Limited The principal authorizes the attorney-in-fact

to do specific things for a limited period of time.

General The attorney-in-fact has the authority to do
whatever the principal can do. When the principal
becomes incapacitated or dies, the General POA ends.
Durable The attorney-in-fact can continue to act for
the principal even after the principal becomes
incapacitated. In order for this type of POA to be
valid, it must be registered with the register of deeds
office. The guardian has authority to dismiss the
Durable POA.
Health Care - The principal authorizes the attorneyin-fact to make decisions in matters relating to the
total health care of the principal. This POA remains
active after the principal becomes incapacitated and
can only be dismissed by the Clerk of Court.

Alternatives to
Guardianship

Advance Instruction for Mental Health Treatment

An individual writes out advanced instruction
regarding mental health treatment. The document
may include consent to or refusal of certain types of
mental health treatment. When a person is declared
incompetent, general statutes require that the
guardian follow the instructions in the document.
Payee
Individuals may have income (Social Security, SSI) that
can
be managed by a payee.
Special Bank Account
Individuals may benefit from having someone share
decision making about their finances (joint bank
accounts).

GUARDIANSHIP vs. POWER OF

ATTORNEY
Guardianship

The Clerk of Superior Court

appoints the Guardian. The
guardian may be a total stranger.

Court fees

Guardian has total control over

the wards finances and personal
decisions

Guardianship is a very time

consuming responsibility. Legal
forms have to be filed
periodically.

Only the Clerk of Superior Court

has authority to terminate
guardianship and/or reappoint
another guardian.

Similarity

Guardianship ends upon the

death of the principal.

Durable Power of Attorney

The principal has total authority

to select an attorney-in-fact.
(family, friends, attorney, etc.)

Low cost.

The attorney-in-fact has

authority to make decisions as
outlined in the DPOA and when
the principal is unavailable to
make the decision.

A principal may revoke a DPOA

at any time. If the principal is
incompetent and appointed a
guardian, the guardian can
terminate the DPOA.

Similarity

Power of Attorney ends upon the

death of the principal.

Decision Making
Capacity

Define Decision Making

Capacity
An individuals ability to make a meaningful
decisions about
personal care, treatment, and/or service.
It is generally thought to include at least the
following four
elements:
Understanding

Appreciation

Reasoning

Ability to express a choices

Decision/Choices/Behaviors

Some of the activities around which we make

choices are recognized as having significant
legal importance, including our freedom of
speech, political orientation, sexual orientation,
privacy, who we choose to associate with,
where and how we travel, and how we take care
of our bodies.

We value our right to make choices and how we

have the right to make choices that may not be
in our best interest. (Poor Choices)

Within this group of poor choices is a subset of

decisions/choices/behaviors that are considered
to be CONTROVERSIAL and/or RISKY.

Decision Making
Capacity
Guardianship should seek to preserve for the
incompetent person the opportunity to exercise
those rights that are within his comprehension
and judgment, allowing for the possibility of
error to the same degree as is allowed to
persons who are not incompetent.
[N.C. General Statute 35A-1201(5)]

To the maximum extent of his capabilities, an

incompetent person should be permitted to
participate as fully as possible in all decisions
that will affect him.
[N.C. General Statute 35A-1201(5)]

Informed Consent
(DMC)

Does the individual demonstrate a capacity to

understand the decision/choice to be made?

Is the individual thinking rational?

Can the individual articulate a decision/choice?

Can the individual reach a responsible

decision/choice?

Is the decision/choice realistic?

Can the decision/choice be accomplished or

implemented?

Does the decision/choice pose a risk to the

individual?

Decisions/Choices/Behavi
ors

Determine why participation in the

controversial/risky decisions, choices or
behaviors is important to the individual.

Determine whether the individual can

appreciate the issues surrounding the
controversial/risky decisions, choices or
behaviors.

Determine whether there are risks or harm

associated with the controversial/risky
decisions, choices or behaviors.

Case Examples

Older nursing home resident who has not

been adjudicated incompetent has indicated
an interest in receiving information about
community options. The family does not want
the discussion to occur as they are afraid it
will give the resident false hope about
being able to transition home.

Man with developmental disabilities can

clearly communicate his preferences but his
family is the general guardian (guardian of
the person and guardian of the estate). Man
wants to move out of state institution and into
his own apartment. Mom is not ready to
allow it.

Case Examples (Continued)

Woman has not been adjudicated

incompetent and wants to transition back
into her community, but does not appear to
be able to make clear decisions
independently and becomes easily
confused. Transition coordinator anxious
about supporting her to transition as the
transition coordinator is unsure the woman
is truly comprehending what is involved in
transitioning/living in her community.

Case Examples (Continued)

Man is in facility because of car accident

that leaves him paralyzed from neck down.
He is a college graduate and intends on
returning to get his masters degree once
he is able to transition out of the facility and
back into his community. He would like to
live alone, wishes to self-direct his services
and is comfortable relying on a lifeline
button to meet his overnight emergency
needs. The CAP lead agency is concerned
about his health and safety during the
overnight hours and the potential liability of
him staying alone. They deny him services,
rendering him unable to transition.

Michelle Wilder-Baker

Adult Protective Services & Guardianship

Coordinator
Division of Aging and Adult Services
Adult Services Section
919-855-3464
Email Address:
Michelle.Wilder@dhhs.nc.gov
DAAS Website:
http:www.dhhs.state.nc.us/aging