Guidance/Instructions to Accompany a Checklist for Filing a Petition for Guardianship

This checklist should be used to initiate conversation during a formal staffing of the case with APS management (Supervisor, DM and/or State Office). This checklist is an additional measure to ensure services will be the least restrictive possible for the client and guardianship will be a last resort.

Each client is presumed to be “mentally competent.” Adults should exercise the freedom of choice and the right to refuse services as long as the client has the capacity to understand the consequences of his/her actions or inactions. APS case managers should make every effort to inform the client about conclusions based on the assessment of the problem, solutions and/or resources to address the problem and consequences that may result is the problem is not addressed. Frequently, decisions made by individuals are questioned when those decisions conflict with another’s opinion. Those “opinions” often come from family, friends, health care providers and/or others in the community who, while having genuine concern for the client, are unable to accept the client’s decisions that they believe are inept, inappropriate or even wrong. Others often forget that adults have the right to make bad, foolish and/or eccentric decisions. Adults have the right to accept or refuse treatment options others believe he/she needs, and adults have the right to accept and refuse services others think are in his/her best interest. While it is important for APS case managers to take this “collateral” information into consideration when making conclusions and developing strategies to address the client’s issues, CM should not succumb to the pressure from others and in haste, implement interventions like petitioning for guardianship that will remove many of the client’s legal rights that any reasonable person expects to maintain during his/her lifetime. Case managers, at minimum, should consider the following whenever guardianship, as the last resort intervention, is being considered:

  • Does the client:

    • Understand information that’s needed to make an informed decision?

    • Give a plausible explanation for decisions? Weigh the risks and benefits of options?

    • Appreciate his/her own situation and its consequences?

    • Communicate a choice?

Guidelines for Answering Checklist Questions

  1. Are any impairments (ADLs/IADLs) that could put the client at risk for ANE managed? (Independently or with assistance)

    If no or if the client may need assistance with managing the impairments, are there informal supports available to assist? Are there programs or services available to assist with the impairment? Have all other options been explored? Note: Utilize the ADRC as a tool to explore other options.

    Did the client refuse services? If so, is his/her competence in question? If not, remember that the client has the right to refuse social services that case managers and/or others believe will improve his/her quality of life.

  2. Is the client able to understand and respond to verbal communications?

    Are the responses appropriate? If so, this is an indicator that the client does not lack capacity and guardianship may not be appropriate.

    If no, the case manager should determine if there are barriers to communication or if this is an indicator that the client may lack competency. Is English the client’s second language? Is a translator needed? Is there a hearing impairment? Is the client mute? Does the client need a communication device? When spoken to, can the client use hand gestures, facial expressions (e.g., blinking of eyes), to respond?

  3. Is the client able to make and communicate choices in regard to medical treatment?

    If no, are there other alternatives in place or have been explored to meet this need that is less intrusive?

    1. Releases of information

    2. Georgia Advance Directive for Health Care

    3. Do-Not-Resuscitate Orders

  4. Does the client understand the potential risks of not accepting medical treatment?

    If yes, remember that the client has the legal right to refuse medical treatment even if without it he/she may die even if a physician and/or other health care professional recommends that the treatment will result in a positive outcome for the client.

    Is the client currently in a hospital or health care setting in which the GA Medical Consent Law or the Healthcare Placement Transfer Act could be considered?

    If no, this may be an indicator that the client lacks competency.

  5. Is the client able to communicate wishes regarding legal documents or services?

    If yes, are there any such documents in place? (If there are documents, please list information on individuals named in the section provided at end of the checklist) Examples include:

    1. Durable Power of Attorney for Health Care (prior to 7/1/2007)

    2. Living Will (prior to 7/1/2007)

    3. Georgia Advance Directive for Health Care

    4. Do Not Resuscitate Order

    5. Last Will and Testament

    6. General (Durable) Power of Attorney

    7. Living Trust

    Was the client asked if he/she wanted access to legal representation to act on his/her behalf and the client’s response indicated that he/she did not understand the legal risks regarding decisions about his/her person or finances?

    If no, this may be an indicator that the client lacks competency.

  6. (For clients with a mental health issue) Is the client’s mental health issue managed? (Independently or with assistance)

    If no, what are the diagnoses? Is the client receiving treatment from DBHDD or another MH provider? If yes, has the CM contacted the provider and/or attempted to connect the client with services?

    If the mental health issue is not managed, is it because the client is non-compliant with medication? Has the client been asked why? Are there cost issues or side effects that should be addressed with the client and a MH provider?

    When the risk of harm is created because he or she has a mental illness and is refusing medication or other treatment, guardianship may not resolve the problem, because guardianship alone does not overcome the right to refuse treatment for mental illness.

  7. (For clients with an intellectual disability). Is the intellectual disability managed? (Independently or with assistance)

    If no, what is the diagnosis? Is the client receiving services and if yes, what services? If there is a current provider, has the case manager contacted or attempted to contact the provider? Has the case manager attempted to connect the client with services, especially if the client is not receiving formal services at the current time?

  8. Is the client able to maintain shelter that is safe (i.e., adequate heat/ventilation, access to water)?

    If no, have services and/or other resources been explored to assist with resolving these issues?

    Did the client refuse help and/or relocate from this unsafe environment? If so, are there reasons to question the validity of the client’s decision to remain in the environment?? Remember, a client is free to live as he/she chooses, no matter how contrary to the established norm or self-destructive his/her lifestyle, as long as he/she understands the consequences of their actions and does not harm others.

  9. Is the client able to identify and resist financial exploitation?

    If no, have other alternatives been explored to reduce this risk and are less intrusive?

    1. Restricted Bank Accounts

    2. Durable Power of Attorney

    3. Representative Payee

    4. Trust

    5. Conservatorship

Other Considerations

If the majority of the questions can be answered no, petitioning for guardianship may be an appropriate option.

It is always worth considering whether guardianship is going to be a useful tool for solving a problem. Even when a person is determined to lack capacity to make an informed decision, guardianship is not likely to be an effective tool to protect a person from harm where the person has the determination and practical ability to continue to engage in risky behaviors. This is because guardianship is primarily a form of decision-making support and substitute consent, not a way of forcing the person to engage (or not engage) in particular behaviors. It is important to consider whether there will be any practical way of enforcing the guardian’s authority over a person who is likely to resist. Public Guardianship Office (PGO) case managers are not present 24/7 with the clients they manage.

If the client will need placement in a facility to reduce the risk, is there a placement in mind? And is the client willing to explore placement options and/or engage family/friends or significant others to help locate placement for him/her?

Lastly, remember that the adult has a right to autonomy and is our primary client-not the community or the family. Autonomy means that the values and lifestyle of any adult takes precedence over community norms, agency policies and case manager concerns.

Community or family pressure should not be a driving force to petition for guardianship.