Governance









White Paper on Surrogate Decision-Making and Advance Care Planning in Long-Term Care

Table of Contents
  1. Introduction
  2. Competence
  3. Decision-Making Capacity
  4. A framework for assessing decision-making capacity
  5. Surrogate Decision-Making
  6. Advance Directives
  7. Guardianship
  8. An Ethical Framework for Surrogate Decision-Making
  9. Decision-making by mentally incapacitated long-term care facility residents
  10. The hierarchy of medical decision-making for incapacitated nursing home residents
  11. Guidance for guardians and other surrogates about medical decision-making
  12. What surrogates and health care provider should expect from each other
  13. Some Important Clinical Issues
  14. Summary and Conclusions
  15. References

Guardianship

The court appointment of a guardian to make decisions for someone who has been deemed incompetent typically requires substantial documentation, time, and expense. For medical decision-making, guardianship proceedings are unnecessary when the incapacitated person has completed an advance directive that formally designates a surrogate, or when the state recognizes the decision-making authority of informal surrogates, such as family members who appear to have the individual's best interests at heart.

Though laws about guardianship vary from state to state, in general, a guardian is appointed by the courts to exercise all of the powers and duties necessary for the care of an incompetent person, who is usually termed the 'ward'. Courts can appoint someone to be a 'guardian of the person' to make medical or personal decisions, a 'guardian of the estate' to make financial decisions, or a 'plenary guardian' to make all necessary decisions on behalf of the ward.6

While the laws of many states grant guardians complete decision-making authority on behalf of their wards, other states specify limited forms of guardianship in which the ward retains some rights of self-determination or decision-making. Partial or limited guardianship is sometimes called 'conservatorship', and a limited guardian is then referred to as a conservator.

Courts often appoint as a guardian a family member or close friend of the ward. When an incompetent person is without family or friends, willing or able to serve as a guardian, or when there is unresolved conflict among family members, the court may appoint a 'public' guardian. Public guardians generally are expected to be familiar with the role and responsibilities of a guardian and willing to serve in that capacity. They are accountable both to the courts and to local administrative authorities.

The training, professional background, and scope of decision-making authority of public guardians varies. Some states require public guardians to undergo licensure, training, and supervision before their appointment, while others do not. Some states limits what a public guardian can decide on behalf of a ward. A public guardian may, for example, be prohibited from withholding or withdrawing specific treatments and from choosing that the ward forego attempted cardiopulmonary resuscitation without explicit court approval. Moreover, in some states, a public guardian is appointed to protect the specific interests of the state rather than of the ward.

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