Shay Jacobson, RN, MA, NMG, LNCC, CNLCP

The Process of Guardianship & Guardianship Restoration

– Modification and Termination of Guardianship Orders
http://www.ncids.org/other%20manuals/guardianship%20manual/Chapter%2010.pdf

The article describes the reasons for terminating a guardianship, examples of competency restoration, modifications of guardianship orders, legal documents, and relevant guardianship proceedings. It is a helpful tool when assessing whether an individual needs guardianship, and/or if competency has been restored, what steps need to be done next.

– Guardian’s Rights and Responsibilities Series – Article 6: Objections to Guardianship; Changing Guardians; Terminating Guardianship
http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=1605

The article provides the rights of those seeking or who have a guardian, and how to use their rights; these include their right to appeal, their right to a lawyer, and their available options to express concern. This is an especially useful tool in instances where capacity has been restored and guardianship is no longer needed.

Termination of a Guardianship: Restoration to Capacity
http://epilawg.com/2013/03/termination-of-a-guardianship-restoration-to-capacity/

The article describes circumstances when restoration to capacity may occur and what steps then need to be taken to terminate the guardianship. It describes physician’s statements, petitioning, and relevant links in this process.

Guardianship Handbook
http://phpf-fountain.org/Guardianship%20Handbook.htm

The pamphlet is helpful in understanding the purpose of guardianships, types of guardianships, alternatives to guardianships, types of individuals who may need a guardian, individual’s rights, when guardianships should be revoked, and the steps on how to become a guardian.

National Guardianship Association Standards of Practice
http://www.guardianship.org/documents/Standards_of_Practice.pdf

The link provides the reader with the entire standards of practice that the National Guardianship Association follows. It has every policy, procedure, and regulations of being a guardian and their responsibilities of that person they are guardian for.

What Happens When a Formerly Incompetent Person Regains His Capacity?
http://www.eldercarelawyer.com/articles/guardianship/incompetent-person-regains-his-capacity.html

The article explains the difficult, but possible process of guardianship restoration. It reassures the reader that guardianship is not permanent and can be revoked when appropriate. It also advocates for guardianship in that it argues how the negative publicity guardianships have is not all true, and describes the importance of having a guardian when need be.

Legislation & Legality

Promoting Judicial Acceptance and Use of Limited Guardianship
http://www.law.stetson.edu/lawreview/media/promoting-judicial-acceptance-and-use-of-limited-guardianship.pdf

The article describes plenary vs. limited guardianships, and explains why judges rarely put limited guardianships into effect, but should more often. It reminds the reader that judges rule a guardianship when they see fit, and only grant them if it is absolutely needed. It also states how complex guardianships are, and how courts decide to the best of their ability, at that time, to order guardians whom are appropriate and appropriate for the situation at hand.

Adult Guardianships: A “Best Guess” National Estimate and the Momentum for Reform
http://www.ncsc.org/sitecore/content/microsites/future-trends-2011/home/Special-Programs/~/media/Microsites/Files/Future%20Trends/Author%20PDFs/Uekert%20and%20Van%20Duizend.ashx

The article outlines the current ways in which guardianships have failed and the potential future of guardianships. It describes how reform in guardianships will likely be changing in the near future so that less financial exploitations occur and more decisions will be made in the person’s best interest. For instance, it expresses how the individual should be included in all decision making when possible, and the reforms needed to be made to ensure that this will always happen.

Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567132

The purpose of this article is to enforce that guardians of those with disabilities do not recognize what is in the best interest for these individuals. It focuses on the negative aspects that guardians have over these individuals, and models that should and need to be put into place so that guardians include the individuals input and decision in all matters.

Objections & Alternatives to Guardianship

Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1816&context=hrbrief

The article outlines alternatives to guardianship and the ways in which guardianships have failed. It argues against plenary guardians and focuses on the negatives outcomes that can arise. In most cases of a guardianship, positive results are portrayed. However, guardianship cases that have unfolded into negative outcomes have become the center of focus in recent years. For example, guardians who have taken advantage of individuals, neglected, and/or failed to make appropriate decisions on their behalf have overwhelmed publicity and the true concept of having a guardian.

Guardianship and Alternatives
http://www.ecbhlme.org/UserFiles/File/Fonda/GUARDIANSHIP.pdf

This is a power-point presentation on the goals of guardianship, assessing incapacity, the types of guardianships, and available alternatives. This is a helpful tool in understanding your rights as a guardian, as an individual seeking a guardian, and the legality behind establishing guardianship or another alternative.

Re-Thinking Guardianship
http://www.nyln.org/wp-content/uploads/2010/10/guardianship.pdf

The content of this article specifically outlines the different alternatives to guardianship. It provides a list of less restrictive means of guardianship-like roles which include powers-of-attorneys, advance-directives, health care proxies, representative payees, person-directed planning, money management, and, but not limited to, trustees. While all of these remain alternatives for guardianship, they each only focus on a certain role that a guardian takes responsibility of.

Alternatives to Guardianship
http://www.peoples-law.org/files/guardian_ch3.pdf

The article is focused towards readers who are considering obtaining a guardian. It helps the reader understand their choices, and which may be more appropriate for their circumstance in particular. It recognizes that guardianship is not the only option and there are many choices to be made in making the right decision.

Person-Centered Planning

– Person-Centered Planning in Guardianship: A Little Hope for the Future
http://epubs.utah.edu/index.php/ulr/article/view/840/648

The article enforces the importance of implementing the individual’s wishes when making decisions of their behalf. It implies that this person-centered approach could help solve guardianships’ intrusive reputation. In attempt to discontinue the negative reputation of guardianships, restorative plans have been put into place. For instance, person-centered planning is the process in which the individual is implemented in the entire guardianship decision making process. Person-centered planning focuses on showing the importance of the role of a guardian, yet values the necessity of choice and human rights. In person-centered planning, the guardian is not only responsible for making decisions of the individual’s behalf, but must take into account not only what is important to, but important for the individual based on their wishes.

Applying the Least Restrictive Alternative Principle to Treatment Disorders: A Legal and Behavioral Analysis http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2733575/pdf/behavan00025-0105.pdf

The article goes into depth about the history of behavioral health and the models that have been developed to help for those affected by mental illness. It aims towards using the least restrictive measures when dealing with these individuals, and the importance that this has on their future. This is an analysis of the appropriate situations in which a better model would aim for less restrictiveness for these individuals. It can be implied from this that guardianship restoration is possible if we the least restrictive model is used.

The Need for Improved Guardianship Data
http://www.courtstatistics.org/Other Pages/Publications/~/media/Microsites/Files/CSP/Highlights/15_2_Adult_Guardianship_Data.ashx 

The article reveals how ‘America is Aging’, and how the need for guardianship is only going to increase. It expresses the concern that current guardianship procedures need to be improved to help better prepare for this increase, and so that the faults of guardianship don’t overwhelm our aging society. It describes how to better manage guardianship cases as a whole, and the tasks that need to be done to do this properly and prepare for the future. This will help focus on the individual at a more personal, less legal level, and reinforces the need for person-centered care.

Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards in the USA
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1548709

The article examines the effects of guardianships from a behavioral view, and proposes the changes that need to be done to enhance more positive guardianship outcomes. It provides examples of how guardianship cases have been abused in the past, ways to avoid this, and suggestions for the future.

Guardianship Mediation
http://scholarship.law.marquette.edu

The article explains the importance of having a mediation before and during establishing a guardianship. If restoration is, if at all, possible then this mediation should be put into effect to determine what steps need to be taken to push for guardianship restoration when the individual regains capacity. It provides the steps required to establish a proper mediation, and which cases are appropriate vs. not appropriate for mediation.

Associations for Persons with Disabilities/Disorders

Mental Illness and Guardianship
http://www.massguardianshipassociation.org/information/guardianship-of-an-adult-2/mental-illness-and-guardianship-2/

The article provides the reader with information on when an individual with a mental illness may or may not need a guardian. It describes what should be considered an appropriate mental illness case for guardianship, and what treatment plans can then be put in place. The importance of a treatment plan in place during guardianship is argued for, and how the goal should aim towards restoration.

Guardianship and Alternatives for Decision-Making Support
http://www.gottransition.org/UploadedFiles/Files/FA_GTFinalCompToSend.pdf

The article argues that guardianship is not the only option one may seek when searching for options for young adults with disabilities. It reveals that once this disabled individual turns 18 years of age, guardianship may or may not be an appropriate choice. It reveals how there are ways to avoid guardianship and how to turn to less invasive options.

The Arc: Guardianship
http://www.thearc.org/page.aspx?pid=2351

The article describes the issues and responsibilities of being a guardian for someone with a developmental and/or intellectual disability. It explains the stance they take on guardianship by focusing on the issues of guardianship. It also advocates for persons with disabilities to be able to maintain their rights and make decisions on their own without the services of a guardian.

Guardianship for ASD Adults
http://www.autismafter16.com/content/huic-nostrud-typicus-ratis-quadrum

The article is a helpful tool for parents of children with autism approaching legal age of adulthood. It describes the options that individuals with Autism have regarding choosing a guardian. Also, it provides the reader with insight of the process of obtaining a guardian and whether a guardian is appropriate for the case at hand.

Case Studies

Mother’s Bid to Regain Guardianship Might Not Be in Best Interest of Teen
http://www.reviewjournal.com/john-l-smith/mothers-bid-regain-guardianship-might-not-be-best-interest-teen

The article is about a real-life story of a mother who was trying to seek guardianship of her son with down-syndrome. The son was taken care of by foster parents until he turned 18 when it was then revealed that the foster parents felt he was too much to handle. The mother then stepped in requesting to be guardian. However, it was made evident that is may not be in the best interest for her to become his guardian due to her mental illnesses and drug-abuse history, and concerns that the motive behind the guardianship was to help better her self-esteem. Guardianship in this case, was likely detrimental, not beneficial for this individual.

The Brook Astor Case: An Appalling Set of Circumstances
http://www.americanbar.org/content/dam/aba/administrative/law_aging/2011/2011_aging_mar18_ea_brkastr_mono.authcheckdam.pdf

This is a case study of how a mother’s son, who was her guardian, financially exploited her. The son abused his mother’s finances and also made her change her will while at her worst moments of dementia. Revoking the guardianship was over-looked in this case, which reveals the importance of person-centered planning even more.

Physician, Heal Thyself
http://www.lcius.com/wp-content/uploads/2013/04/032613-Forgetful-and-Forgotten-zr.pdf

This is a miracle story that Lifecare Guardianship is proud to be behind. In this case, a downward spiraling physician, treating herself for schizophrenia while going through a divorce, was appointed by court Lifecare Guardianship for her own protection. After 3 years of new medications, and regained capacity, Lifecare was able to help restore the individual so guardianship services were no longer required and revoked. This is a classic case demonstrating the restorative power of guardianship.