Guardian Responsibilities: The responsibilities of a guardian are to:
- Obtain necessary medical care or services needed
- Make regular in-person visits to the individual
- Advocate for the individual’s best interests
- Review health care, treatment, and supportive services records
- Make an annual report to the court or county Adult Protective Services Office
- Participate in staff meetings
- Learn about risks and benefits of any proposed interventions
- Consult with healthcare providers and social services as needed
- Act in a way that is least restrictive relative to housing placement
- Identify and honor preferences whenever possible
The guardian is NOT responsible to financially support or to provide direct care for their ward. The guardian is immune from personal civil liability if he/she acts in good faith, with the ward’s best interests in mind, and with diligence and care. Court appointed guardians are held to the standard of “what an ordinary person would do relative to their own care”.
The guardian is permitted to act contrary to the expressed wishes of the ward under certain conditions. This can, however, be done only with compelling reason. The power to act must be authorized by the court and the decision must meet essential requirements for health, safety and protection from abuse, exploitation, or neglect. This requires assessment of the ward’s understanding, the level of risk to health and safety, and efforts to understand the patient’s decision-making ability and wishes.
- Physical or mental health care: An incapacitated person has the right to refuse treatment for mental illness, developmental disability, or substance abuse. The right to refuse is only valid if a discussion is held with the individual through the court system. Medication administration may be forced only if a prior good faith effort to convince the individual to take the medications voluntarily has been made and failed. Treatments such as electroconvulsive therapy, psychosurgery or experimental research require consent of both the individual and guardian.
- Seclusion, restraint, or restriction: These restrictions encompass FDA guidelines for restraint and seclusion in that they may be used only in emergencies and when less intense treatments have failed. They must include behavioral interventions with adequate monitoring and support and identify and follow a clearly defined phase-out plan.
- Decisions regarding life sustaining/ending therapies: Power to decline or withdraw life sustaining treatment may be instituted by the guardian only If the individual provided no clear direction regarding such treatment. The guardian has the authority to decline artificial nutrition and hydration only if the person’s physician and two independent physicians determine within reasonable medical certainty that the person is in a chronic vegetative state AND the guardian determines in good faith that treatment withdrawal is in the person’s best interest. This requires the guardian to begin with the presumption that the best interest is the continuation of life. This presumption may be overridden by a low chance for recovery, or treatment ineffectiveness. The guardian must give notice to the individual’s “interested parties” and allow time for response and deliberation, with any objecting individuals then petitioning the court to review the decision.
In the setting of a terminal illness, treatments that are painful or intrusive and will prolong dying rather than restoring health and function, can be declined. The guardian cannot base the decision on a determination that the life of the disabled person is lower or of less value than that of others. Ambiguous situations are best referred to the courts.
- Decisions regarding living arrangements: The guardian can make decisions regarding living arrangements unless the court has ruled otherwise. The guardian is required to determine the individual’s preferences and weigh these in the decision unless they compromise health and safety. The least restrictive appropriate environment should be sought. Similar rules apply to short stays in post-acute or subacute facilities for rehabilitation or recovery.
- Sexual expression and activity: Capacity to consent to sexual activity is protected so long as it is knowing and voluntary. In a situation where the individual lacks capacity to consent, sexual activity constitutes sexual abuse; if the perpetrator knows of the incapacity, it is criminal sexual assault.