Ramifications of Diminished Capacity

Abstract

This column is not to be substituted for legal advice. MS. FELDKAMP practices in various aspects of health care and is a partner with Benesch Friedlander Coplan & Aronoff LLP of Columbus, Ohio.Often, elderly residents with some level of diminished capacity are asked to make vital decisions about their health care. As health care providers, you have legal and ethical obligations to ensure these individuals possess the mental capacity to exercise proper decision making.Preserving patient autonomy should be the guiding principle for health care providers exercising professional judgment in relation to a person with diminishing or diminished capacity. This requires upholding the values of individual choice, control, privacy, and dignity in the nursing home setting (Arch. Intern. Med. 1996;156:249–56). The ultimate question health care providers should consider when assessing decision-making capacity is: Does the person have the capacity to make this decision or should someone else be appointed to make the decision for them?Determining whether a person has the capacity to make decisions poses ethical challenges involving potential legal consequences. In this column, I will focus on five legal challenges commonly faced by health care providers in the long-term care setting including:▸ Determining whether a resident has diminished capacity.▸ Maintaining client confidentiality.▸ Obtaining informed consent.▸ Utilizing advanced directives and durable power of attorney for health care.▸ Determining legal guardianship.Diminished CapacityCognitive ability used in decision making involves a range of skills including attention, problem solving, and comprehension. Decision making requires that a person understand information, be able to communicate choices, understand the situation and its consequences, and manipulate information in a rationale manner (JAMDA 2004;5:263–7). Cognitive ability also may vary from day to day for individuals.Assessing a patient's decision-making capacity requires good assessment skills and concentration on the client's current abilities. Often a health care practitioner's determination of current capacity creates conflict and disagreement between health care providers and family members (Mayo Clin. Proc. 2004;79:554–62). In many cases, individuals with impaired cognition may have adequate decision-making capacity—adding to the complexity of diagnosing diminished capacity.The legal concepts of capacity and competence often are confusing. Possessing the capacity to make decisions is different from possessing competence to make decisions. Decision-making capacity is a term used by clinicians referencing the ability to make safe medical choices. A patient may not have the decision-making capacity to make major decisions about their health care but may have decision-making capacity to decide whether to take a sleeping pill.In contrast, competence is a legal term (JAMDA 2004;5:263–7) and is presumed in the legal setting, unless a probate court determines that a person is incompetent. Court decisions about an individual's competence may be specific to certain types of decisions such as decisions made about health care or finances (www.cbhd.org/resources/healthcare/orr_2004-034-10.htm).Like health care providers, attorneys also are required to be prepared to identify clients with diminished capacity (www.abanet.org/cpr/mrpc/rule_1_14.html). The American Bar Association's (ABA) Model Rules of Professional Conduct requirements lend insight to an attorney in handling a client with diminished capacity before taking legal actions related to guardianship, power of attorney, and advanced directives (www.abanet.org/cpr/mrpc/rule_1_14_comm.html). Health care providers should be aware that an attorney may request a consultation from a health care provider to get an opinion related to capacity when addressing the legal issues surrounding a person's legal competence.ConfidentialityA central part of maintaining a resident's autonomy is maintaining his or her control over personal information. Residents have a right to trust that health care providers and their legal advisors will not divulge confidential information without the express permission, even when the resident has diminished capacity.Under special circumstances, legal duties to protect the resident and others permit health care providers and attorneys to break confidentiality. The legal duty of health care providers to break confidentiality in certain circumstances is described in statutory and case law. For example, when the clinician believes that the resident will harm himself or others, the clinician may have a duty to protect the resident and break confidentiality.Similarly, under the ABA Model Rules, an attorney has authority to take action when the attorney reasonably believes that a resident with diminished capacity is at risk of physical, financial, or other harm unless action is taken. The attorney may consult with individuals or entities that are able to take action to protect the resident, including seeking appointment of a guardian ad litem, conservator, or guardian. Under such circumstances, the attorney may reveal information reasonably necessary to protect the client's interests [ABA Model Rule 1.14(b)(c)].The first step for the health care provider and attorney in establishing a relationship with a resident of diminished capacity is determining who the client is. Relatives such as a controlling son or daughter may interfere with the relationship between the health care provider or attorney and the resident. Ultimately, health care providers and attorneys have the responsibility to maintain confidentiality while providing the resident with undivided loyalty.The medical director in a long-term care facility may be asked by the facility to consult regarding the dynamics that are occurring between a family and the patient related to decision-making abilities. It is wise for the medical director to consult with the facility's legal counsel to take a united approach.Advanced DirectivesMedical directors are well versed in the requirements related to advanced directives and durable power of attorney for long-term care patients. Although consent to treatment is presumed in emergencies, most decisions regarding treatment in long-term care settings are not emergencies. Therefore, advance planning to identify surrogate decision makers and to specify wishes regarding care at the end of life are everyday concerns in long-term care.Advanced directives have been described as an extension of the fully autonomous patient (Mayo Clin. Proc. 2004;79:554–62). Advanced directives are recognized in all states as a reflection of the patient's decision for end-of-life care. Additionally, the Patient Self-Determination Act of 1990 imposes requirements surrounding advanced directives for health care institutions participating in Medicare and Medicaid. For example, such institutions must ask patients whether they have an advanced directive, include the patient's advanced directive in the medical record, and inform residents of their right to have an advanced directive (Mayo Clin. Proc. 2004;79:554–62).Medical directors should take steps to ensure that health care providers take responsibility for talking about, documenting, and upholding advanced directives in the care of the resident. Studies have shown that most people do not have advanced directives. If patients do have an advanced directive, often they do not inform the health care provider.The durable power of attorney for health care specifies a decision maker other than the patient. The specified decision maker is often termed the surrogate, attorney-in-fact, or proxy. The term ‘durable’ is used to indicate that the power of attorney remains in effect when the client has diminished capacity to make decisions.The durable power of attorney is specified in a legal document. The resident can specify how much or how little authority the surrogate has in making decisions related to health care. State laws regarding durable power of attorney for health care vary. However, most states permit the power to include the right to consent to, or refuse treatment, withdraw or withhold life support, select health care providers, and make decisions about organ donation.Informed ConsentAn individual's right to autonomy is also a concept central to obtaining adequate informed consent. Three characteristics of a client making an autonomous decision are: being adequately informed, making decisions voluntarily without coercion, and making decisions based on reasoning (JAMDA 2004;5:263–7).American law has imposed a legal duty on health care providers to obtain informed consent from patients since the early 20th Century (Mayo Clin. Proc. 2004;79:554–62). In general, clinicians must provide information that a “reasonable patient” would need to make a decision regarding treatment (Mayo Clin. Proc. 2004;79:554–62). Necessary information the health care provider must give includes risks, benefits, and alternatives to treatment.The health care provider must also have reasonable assurance of the patient's decision-making capacity and understanding of the necessary information pertaining to the decision for adequate informed consent. The patient must render a decision voluntarily (Mayo Clin. Proc. 2004;79:554–62). The capacity determination must be made prior to obtaining informed consent for health care services or procedures. If the patient does not have decision-making capacity, then informed consent must be obtained from a surrogate.It is not always clear to health care providers whether the resident has diminished capacity and is unable to give informed consent. If there are uncertainties, the provider has an ethical responsibility to carefully assess whether the resident has the mental capacity to give informed consent. If the resident does not have the capacity to give informed consent, the health care provider must seek alternatives (NAELA J 2005;1:197). Persons with diminished capacity or who are in the early stages of developing diminished capacity may initially present a false impression of their mental abilities to the health care provider.Medical directors should be aware of the responsibilities incumbent upon attorneys practicing in elder care and expect that attorneys follow their ethical guidelines when dealing with residents of diminished capacity. The legal community has encouraged attorneys to use one of several instruments designed for non-health care providers to complete a screen or preliminary assessment of whether a person has the capacity to provide informed consent.The tools screen a person's ability to exercise sufficient cognitive function and mental capacity necessary to give informed consent in legal matters. Such tools include: the Legal Capacity Questionnaire (LCQ); the Mini-Mental State Examination (MMSE); the Client Capacity Screen (CCS); and the Behavioral Dyscontrol Scale (BDS) (NAELA Quarterly 2004; Summer). Although it may be necessary to appoint a legal representative to complete a transaction with a person of diminished capacity, such an appointment is not ordinarily required and a resident with even some degree of capacity may have the ability to execute power of attorney.GuardianshipDepending upon the state statutory scheme, there may be times when a person with diminished capacity requires a guardian. Some states allow for surrogate decision makers to be determined via statute when a person's diminished capabilities do not allow him or her to designate their own decision maker.Each state's statutory scheme varies; however, if there is a need for a guardian, then a petition is filed in court. The petition essentially asks the court to determine the need for a legal guardian. With the petition, there is typically a statement of capacity completed by a health care practitioner regarding the person's mental capacity. The court holds a hearing to allow the person the ability to appear and present evidence of his or her continuing ability to make meaningful legal decisions.The court is charged with making a decision in the best interest of the potential ward. If guardianship is granted, the ward and the guardian remain under court oversight. The guardian is required to file periodic reports regarding the ward. The court's oversight assures this vulnerable person is being cared for appropriately through the decisions of the guardian.The American Bar Association Commission on Legal Problems of the Elderly and Commission on the Mentally Disabled met in 1988 for a multidisciplinary National Guardianship Symposium known as “Wingspan” (NAELA Inst. 2002;1.14:14–1). There was also a second National Guardianship Conference in 2001. The many disciplines represented at the conference included elder law attorneys, legal scholars, representatives from various ABA sections including the Commission on Legal Problems of the Elderly and Section on Real Property, probate and trust Law, and probate judges.Since the initial conference, the American Bar Association has issued recommendations adopted as policy by the American Bar Association House of Delegates related to legal guardianship (www.abanet.org/aging/resources/home.shtml). The policy indicates that guardianship should be utilized as a last resort and the least restrictive routes should be pursued before guardianship. This column is not to be substituted for legal advice. MS. FELDKAMP practices in various aspects of health care and is a partner with Benesch Friedlander Coplan & Aronoff LLP of Columbus, Ohio. Often, elderly residents with some level of diminished capacity are asked to make vital decisions about their health care. As health care providers, you have legal and ethical obligations to ensure these individuals possess the mental capacity to exercise proper decision making. Preserving patient autonomy should be the guiding principle for health care providers exercising professional judgment in relation to a person with diminishing or diminished capacity. This requires upholding the values of individual choice, control, privacy, and dignity in the nursing home setting (Arch. Intern. Med. 1996;156:249–56). The ultimate question health care providers should consider when assessing decision-making capacity is: Does the person have the capacity to make this decision or should someone else be appointed to make the decision for them? Determining whether a person has the capacity to make decisions poses ethical challenges involving potential legal consequences. In this column, I will focus on five legal challenges commonly faced by health care providers in the long-term care setting including: ▸ Determining whether a resident has diminished capacity. ▸ Maintaining client confidentiality. ▸ Obtaining informed consent. ▸ Utilizing advanced directives and durable power of attorney for health care. ▸ Determining legal guardianship. Diminished CapacityCognitive ability used in decision making involves a range of skills including attention, problem solving, and comprehension. Decision making requires that a person understand information, be able to communicate choices, understand the situation and its consequences, and manipulate information in a rationale manner (JAMDA 2004;5:263–7). Cognitive ability also may vary from day to day for individuals.Assessing a patient's decision-making capacity requires good assessment skills and concentration on the client's current abilities. Often a health care practitioner's determination of current capacity creates conflict and disagreement between health care providers and family members (Mayo Clin. Proc. 2004;79:554–62). In many cases, individuals with impaired cognition may have adequate decision-making capacity—adding to the complexity of diagnosing diminished capacity.The legal concepts of capacity and competence often are confusing. Possessing the capacity to make decisions is different from possessing competence to make decisions. Decision-making capacity is a term used by clinicians referencing the ability to make safe medical choices. A patient may not have the decision-making capacity to make major decisions about their health care but may have decision-making capacity to decide whether to take a sleeping pill.In contrast, competence is a legal term (JAMDA 2004;5:263–7) and is presumed in the legal setting, unless a probate court determines that a person is incompetent. Court decisions about an individual's competence may be specific to certain types of decisions such as decisions made about health care or finances (www.cbhd.org/resources/healthcare/orr_2004-034-10.htm).Like health care providers, attorneys also are required to be prepared to identify clients with diminished capacity (www.abanet.org/cpr/mrpc/rule_1_14.html). The American Bar Association's (ABA) Model Rules of Professional Conduct requirements lend insight to an attorney in handling a client with diminished capacity before taking legal actions related to guardianship, power of attorney, and advanced directives (www.abanet.org/cpr/mrpc/rule_1_14_comm.html). Health care providers should be aware that an attorney may request a consultation from a health care provider to get an opinion related to capacity when addressing the legal issues surrounding a person's legal competence. Cognitive ability used in decision making involves a range of skills including attention, problem solving, and comprehension. Decision making requires that a person understand information, be able to communicate choices, understand the situation and its consequences, and manipulate information in a rationale manner (JAMDA 2004;5:263–7). Cognitive ability also may vary from day to day for individuals. Assessing a patient's decision-making capacity requires good assessment skills and concentration on the client's current abilities. Often a health care practitioner's determination of current capacity creates conflict and disagreement between health care providers and family members (Mayo Clin. Proc. 2004;79:554–62). In many cases, individuals with impaired cognition may have adequate decision-making capacity—adding to the complexity of diagnosing diminished capacity. The legal concepts of capacity and competence often are confusing. Possessing the capacity to make decisions is different from possessing competence to make decisions. Decision-making capacity is a term used by clinicians referencing the ability to make safe medical choices. A patient may not have the decision-making capacity to make major decisions about their health care but may have decision-making capacity to decide whether to take a sleeping pill. In contrast, competence is a legal term (JAMDA 2004;5:263–7) and is presumed in the legal setting, unless a probate court determines that a person is incompetent. Court decisions about an individual's competence may be specific to certain types of decisions such as decisions made about health care or finances (www.cbhd.org/resources/healthcare/orr_2004-034-10.htm). Like health care providers, attorneys also are required to be prepared to identify clients with diminished capacity (www.abanet.org/cpr/mrpc/rule_1_14.html). The American Bar Association's (ABA) Model Rules of Professional Conduct requirements lend insight to an attorney in handling a client with diminished capacity before taking legal actions related to guardianship, power of attorney, and advanced directives (www.abanet.org/cpr/mrpc/rule_1_14_comm.html). Health care providers should be aware that an attorney may request a consultation from a health care provider to get an opinion related to capacity when addressing the legal issues surrounding a person's legal competence. ConfidentialityA central part of maintaining a resident's autonomy is maintaining his or her control over personal information. Residents have a right to trust that health care providers and their legal advisors will not divulge confidential information without the express permission, even when the resident has diminished capacity.Under special circumstances, legal duties to protect the resident and others permit health care providers and attorneys to break confidentiality. The legal duty of health care providers to break confidentiality in certain circumstances is described in statutory and case law. For example, when the clinician believes that the resident will harm himself or others, the clinician may have a duty to protect the resident and break confidentiality.Similarly, under the ABA Model Rules, an attorney has authority to take action when the attorney reasonably believes that a resident with diminished capacity is at risk of physical, financial, or other harm unless action is taken. The attorney may consult with individuals or entities that are able to take action to protect the resident, including seeking appointment of a guardian ad litem, conservator, or guardian. Under such circumstances, the attorney may reveal information reasonably necessary to protect the client's interests [ABA Model Rule 1.14(b)(c)].The first step for the health care provider and attorney in establishing a relationship with a resident of diminished capacity is determining who the client is. Relatives such as a controlling son or daughter may interfere with the relationship between the health care provider or attorney and the resident. Ultimately, health care providers and attorneys have the responsibility to maintain confidentiality while providing the resident with undivided loyalty.The medical director in a long-term care facility may be asked by the facility to consult regarding the dynamics that are occurring between a family and the patient related to decision-making abilities. It is wise for the medical director to consult with the facility's legal counsel to take a united approach. A central part of maintaining a resident's autonomy is maintaining his or her control over personal information. Residents have a right to trust that health care providers and their legal advisors will not divulge confidential information without the express permission, even when the resident has diminished capacity. Under special circumstances, legal duties to protect the resident and others permit health care providers and attorneys to break confidentiality. The legal duty of health care providers to break confidentiality in certain circumstances is described in statutory and case law. For example, when the clinician believes that the resident will harm himself or others, the clinician may have a duty to protect the resident and break confidentiality. Similarly, under the ABA Model Rules, an attorney has authority to take action when the attorney reasonably believes that a resident with diminished capacity is at risk of physical, financial, or other harm unless action is taken. The attorney may consult with individuals or entities that are able to take action to protect the resident, including seeking appointment of a guardian ad litem, conservator, or guardian. Under such circumstances, the attorney may reveal information reasonably necessary to protect the client's interests [ABA Model Rule 1.14(b)(c)]. The first step for the health care provider and attorney in establishing a relationship with a resident of diminished capacity is determining who the client is. Relatives such as a controlling son or daughter may interfere with the relationship between the health care provider or attorney and the resident. Ultimately, health care providers and attorneys have the responsibility to maintain confidentiality while providing the resident with undivided loyalty. The medical director in a long-term care facility may be asked by the facility to consult regarding the dynamics that are occurring between a family and the patient related to decision-making abilities. It is wise for the medical director to consult with the facility's legal counsel to take a united approach. Advanced DirectivesMedical directors are well versed in the requirements related to advanced directives and durable power of attorney for long-term care patients. Although consent to treatment is presumed in emergencies, most decisions regarding treatment in long-term care settings are not emergencies. Therefore, advance planning to identify surrogate decision makers and to specify wishes regarding care at the end of life are everyday concerns in long-term care.Advanced directives have been described as an extension of the fully autonomous patient (Mayo Clin. Proc. 2004;79:554–62). Advanced directives are recognized in all states as a reflection of the patient's decision for end-of-life care. Additionally, the Patient Self-Determination Act of 1990 imposes requirements surrounding advanced directives for health care institutions participating in Medicare and Medicaid. For example, such institutions must ask patients whether they have an advanced directive, include the patient's advanced directive in the medical record, and inform residents of their right to have an advanced directive (Mayo Clin. Proc. 2004;79:554–62).Medical directors should take steps to ensure that health care providers take responsibility for talking about, documenting, and upholding advanced directives in the care of the resident. Studies have shown that most people do not have advanced directives. If patients do have an advanced directive, often they do not inform the health care provider.The durable power of attorney for health care specifies a decision maker other than the patient. The specified decision maker is often termed the surrogate, attorney-in-fact, or proxy. The term ‘durable’ is used to indicate that the power of attorney remains in effect when the client has diminished capacity to make decisions.The durable power of attorney is specified in a legal document. The resident can specify how much or how little authority the surrogate has in making decisions related to health care. State laws regarding durable power of attorney for health care vary. However, most states permit the power to include the right to consent to, or refuse treatment, withdraw or withhold life support, select health care providers, and make decisions about organ donation. Medical directors are well versed in the requirements related to advanced directives and durable power of attorney for long-term care patients. Although consent to treatment is presumed in emergencies, most decisions regarding treatment in long-term care settings are not emergencies. Therefore, advance planning to identify surrogate decision makers and to specify wishes regarding care at the end of life are everyday concerns in long-term care. Advanced directives have been described as an extension of the fully autonomous patient (Mayo Clin. Proc. 2004;79:554–62). Advanced directives are recognized in all states as a reflection of the patient's decision for end-of-life care. Additionally, the Patient Self-Determination Act of 1990 imposes requirements surrounding advanced directives for health care institutions participating in Medicare and Medicaid. For example, such institutions must ask patients whether they have an advanced directive, include the patient's advanced directive in the medical record, and inform residents of their right to have an advanced directive (Mayo Clin. Proc. 2004;79:554–62). Medical directors should take steps to ensure that health care providers take responsibility for talking about, documenting, and upholding advanced directives in the care of the resident. Studies have shown that most people do not have advanced directives. If patients do have an advanced directive, often they do not inform the health care provider. The durable power of attorney for health care specifies a decision maker other than the patient. The specified decision maker is often termed the surrogate, attorney-in-fact, or proxy. The term ‘durable’ is used to indicate that the power of attorney remains in effect when the client has diminished capacity to make decisions. The durable power of attorney is specified in a legal document. The resident can specify how much or how little authority the surrogate has in making decisions related to health care. State laws regarding durable power of attorney for health care vary. However, most states permit the power to include the right to consent to, or refuse treatment, withdraw or withhold life support, select health care providers, and make decisions about organ donation. Informed ConsentAn individual's right to autonomy is also a concept central to obtaining adequate informed consent. Three characteristics of a client making an autonomous decision are: being adequately informed, making decisions voluntarily without coercion, and making decisions based on reasoning (JAMDA 2004;5:263–7).American law has imposed a legal duty on health care providers to obtain informed consent from patients since the early 20th Century (Mayo Clin. Proc. 2004;79:554–62). In general, clinicians must provide information that a “reasonable patient” would need to make a decision regarding treatment (Mayo Clin. Proc. 2004;79:554–62). Necessary information the health care provider must give includes risks, benefits, and alternatives to treatment.The health care provider must also have reasonable assurance of the patient's decision-making capacity and understanding of the necessary information pertaining to the decision for adequate informed consent. The patient must render a decision voluntarily (Mayo Clin. Proc. 2004;79:554–62). The capacity determination must be made prior to obtaining informed consent for health care services or procedures. If the patient does not have decision-making capacity, then informed consent must be obtained from a surrogate.It is not always clear to health care providers whether the resident has diminished capacity and is unable to give informed consent. If there are uncertainties, the provider has an ethical responsibility to carefully assess whether the resident has the mental capacity to give informed consent. If the resident does not have the capacity to give informed consent, the health care provider must seek alternatives (NAELA J 2005;1:197). Persons with diminished capacity or who are in the early stages of developing diminished capacity may initially present a false impression of their mental abilities to the health care provider.Medical directors should be aware of the responsibilities incumbent upon attorneys practicing in elder care and expect that attorneys follow their ethical guidelines when dealing with residents of diminished capacity. The legal community has encouraged attorneys to use one of several instruments designed for non-health care providers to complete a screen or preliminary assessment of whether a person has the capacity to provide informed consent.The tools screen a person's ability to exercise sufficient cognitive function and mental capacity necessary to give informed consent in legal matters. Such tools include: the Legal Capacity Questionnaire (LCQ); the Mini-Mental State Examination (MMSE); the Client Capacity Screen (CCS); and the Behavioral Dyscontrol Scale (BDS) (NAELA Quarterly 2004; Summer). Although it may be necessary to appoint a legal representative to complete a transaction with a person of diminished capacity, such an appointment is not ordinarily required and a resident with even some degree of capacity may have the ability to execute power of attorney. An individual's right to autonomy is also a concept central to obtaining adequate informed consent. Three characteristics of a client making an autonomous decision are: being adequately informed, making decisions voluntarily without coercion, and making decisions based on reasoning (JAMDA 2004;5:263–7). American law has imposed a legal duty on health care providers to obtain informed consent from patients since the early 20th Century (Mayo Clin. Proc. 2004;79:554–62). In general, clinicians must provide information that a “reasonable patient” would need to make a decision regarding treatment (Mayo Clin. Proc. 2004;79:554–62). Necessary information the health care provider must give includes risks, benefits, and alternatives to treatment. The health care provider must also have reasonable assurance of the patient's decision-making capacity and understanding of the necessary information pertaining to the decision for adequate informed consent. The patient must render a decision voluntarily (Mayo Clin. Proc. 2004;79:554–62). The capacity determination must be made prior to obtaining informed consent for health care services or procedures. If the patient does not have decision-making capacity, then informed consent must be obtained from a surrogate. It is not always clear to health care providers whether the resident has diminished capacity and is unable to give informed consent. If there are uncertainties, the provider has an ethical responsibility to carefully assess whether the resident has the mental capacity to give informed consent. If the resident does not have the capacity to give informed consent, the health care provider must seek alternatives (NAELA J 2005;1:197). Persons with diminished capacity or who are in the early stages of developing diminished capacity may initially present a false impression of their mental abilities to the health care provider. Medical directors should be aware of the responsibilities incumbent upon attorneys practicing in elder care and expect that attorneys follow their ethical guidelines when dealing with residents of diminished capacity. The legal community has encouraged attorneys to use one of several instruments designed for non-health care providers to complete a screen or preliminary assessment of whether a person has the capacity to provide informed consent. The tools screen a person's ability to exercise sufficient cognitive function and mental capacity necessary to give informed consent in legal matters. Such tools include: the Legal Capacity Questionnaire (LCQ); the Mini-Mental State Examination (MMSE); the Client Capacity Screen (CCS); and the Behavioral Dyscontrol Scale (BDS) (NAELA Quarterly 2004; Summer). Although it may be necessary to appoint a legal representative to complete a transaction with a person of diminished capacity, such an appointment is not ordinarily required and a resident with even some degree of capacity may have the ability to execute power of attorney. GuardianshipDepending upon the state statutory scheme, there may be times when a person with diminished capacity requires a guardian. Some states allow for surrogate decision makers to be determined via statute when a person's diminished capabilities do not allow him or her to designate their own decision maker.Each state's statutory scheme varies; however, if there is a need for a guardian, then a petition is filed in court. The petition essentially asks the court to determine the need for a legal guardian. With the petition, there is typically a statement of capacity completed by a health care practitioner regarding the person's mental capacity. The court holds a hearing to allow the person the ability to appear and present evidence of his or her continuing ability to make meaningful legal decisions.The court is charged with making a decision in the best interest of the potential ward. If guardianship is granted, the ward and the guardian remain under court oversight. The guardian is required to file periodic reports regarding the ward. The court's oversight assures this vulnerable person is being cared for appropriately through the decisions of the guardian.The American Bar Association Commission on Legal Problems of the Elderly and Commission on the Mentally Disabled met in 1988 for a multidisciplinary National Guardianship Symposium known as “Wingspan” (NAELA Inst. 2002;1.14:14–1). There was also a second National Guardianship Conference in 2001. The many disciplines represented at the conference included elder law attorneys, legal scholars, representatives from various ABA sections including the Commission on Legal Problems of the Elderly and Section on Real Property, probate and trust Law, and probate judges.Since the initial conference, the American Bar Association has issued recommendations adopted as policy by the American Bar Association House of Delegates related to legal guardianship (www.abanet.org/aging/resources/home.shtml). The policy indicates that guardianship should be utilized as a last resort and the least restrictive routes should be pursued before guardianship. Depending upon the state statutory scheme, there may be times when a person with diminished capacity requires a guardian. Some states allow for surrogate decision makers to be determined via statute when a person's diminished capabilities do not allow him or her to designate their own decision maker. Each state's statutory scheme varies; however, if there is a need for a guardian, then a petition is filed in court. The petition essentially asks the court to determine the need for a legal guardian. With the petition, there is typically a statement of capacity completed by a health care practitioner regarding the person's mental capacity. The court holds a hearing to allow the person the ability to appear and present evidence of his or her continuing ability to make meaningful legal decisions. The court is charged with making a decision in the best interest of the potential ward. If guardianship is granted, the ward and the guardian remain under court oversight. The guardian is required to file periodic reports regarding the ward. The court's oversight assures this vulnerable person is being cared for appropriately through the decisions of the guardian. The American Bar Association Commission on Legal Problems of the Elderly and Commission on the Mentally Disabled met in 1988 for a multidisciplinary National Guardianship Symposium known as “Wingspan” (NAELA Inst. 2002;1.14:14–1). There was also a second National Guardianship Conference in 2001. The many disciplines represented at the conference included elder law attorneys, legal scholars, representatives from various ABA sections including the Commission on Legal Problems of the Elderly and Section on Real Property, probate and trust Law, and probate judges. Since the initial conference, the American Bar Association has issued recommendations adopted as policy by the American Bar Association House of Delegates related to legal guardianship (www.abanet.org/aging/resources/home.shtml). The policy indicates that guardianship should be utilized as a last resort and the least restrictive routes should be pursued before guardianship.