GUARDIANSHIP OF PERSON

The Guardian of the Person has an affirmative responsibility to promote the Person’s autonomy and maximize independence. This can be a balancing act, as the Guardian of the Person is responsible for ensuring that the person under guardianship is safe and the person’s basic needs are met. This can include ensuring food and shelter, adequate medical care, psychiatric services, social services, and other services that promote a high quality of life and safety. This requires knowledge of community resources, as there is no obligation to personally provide for each of these areas. In broad terms, the primary functions of a Guardian of the Person are:
 

  • Assessment: Who is the person that you are supporting? What are the goals and needs?

  • Service Planning: How will you help achieve the person’s goals? How will you meet the needs? Who else needs to be involved?

  • Decision making: Involving the protected person in the decision-making process. What services or treatments should be provided? Who will provide them? When? How long?

  • Monitoring: Making sure that the person’s needs are being met and services support the incapacitated person’s goals

  • Advocacy: Problem solving, promoting, negotiating with other persons or entities to ensure that the services and relationships are effective and are in the incapacitated persons best interest

  • Protection: Ensuring that the incapacitated person is safe from abuse, neglect, and exploitation

  • Conducting the Guardianship in accordance with the Court’s rules and expectations.
     

The primary functions listed above aren’t meant to indicate importance or priority. However, assessment provides the information that drives almost all of the above.

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Assessment

Accurate, thoughtful, and ongoing assessments are necessary to identify services needed to support the achievement of the incapacitated persons goals, and provide for the safety and well-being of the incapacitated person.


A Guardianship Assessment incorporates information from other service providers. Does the person live in a long care facility? Reports from the Social Worker, Physician. Mental Health Professionals can provide helpful information. Home Health Care Providers have a good understanding of the incapacitated person’s needs.


Functional Assessments are an important tool. A functional assessment looks at the person’s abilities in a variety of areas. The most common areas explored are maintaining health, behavioral indicators, communication, and daily living. 

The functional assessment includes a focus on the person’s ability to perform:

  • Average Activities of Daily Living (ADL). These are the routine activities that people tend do every day without needing assistance. There are six basic ADLs: eating, bathing, dressing, toileting, transferring (walking) and continence.

  • Instrumental Activities of Daily Living (IADL): Instrumental activities of daily living are not necessary for fundamental functioning, but they are helpful gauges in determining how much support a person needs. Cleaning and maintaining the house. Managing money. Moving within the community. Preparing meals.

  • Communication: How is the incapacitated person able to communicate their needs and preferences? How do we communicate with the client to assure them that they are being heard and that their preferences are being addressed?
     

Functional Assessments should be completed periodically, as they can document any changes in the incapacitated person’s abilities over time.


The best source of information can be the incapacitated person. When possible, spend time with the person prior to appointment. Even if adjudicated as being incapacitated, many people are still able to share their wishes, desires, and hopes. If the person is not able to communicate verbally, look to person behavioral indications. Behaviors are a form of communication. Does the person appear to be agitated in loud environments? Do they prefer certain foods? Do they pull away when physically assisted?  Family members and friends may have important information to help us understand the person that the Guardian is supporting.

 

 

Service Planning

The Service Plan, or Plan of Care is the road map of how we will be able to meet the protected person’s needs, and support them in their goals. The Service Plan builds on the information that we have gained from the assessments.

Service plans include:

  • Short Term Goals. What needs to happen immediately or soon after appointment to ensure the person’s safety, physical and emotional wellbeing, and protection from abuse, exploitation, and neglect. Short term goals can also address emergent needs.

  • Long Term Goals: What is the vision for the protected person’s future? What are the personal goals (if not addressed in the short term goals) of the protected person?

  • Strategies: Each goal contains strategies for achievement. Put simply, strategies are: Who does What, How and by When that are necessary for completion of the goal.

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A Guardianship service plan should reflect Person Centered Planning Concepts. Person Centered Planning requires the
Guardian to actively engage the Person in the planning process. In addition to the goals and services delineated to promote
optimal health and safety, there is an emphasis on goals that promote the Person’s happiness and autonomy. 

Elements of the Person-Centered Plan include:

  • Identifying the focus person’s wishes and goals

  • Considering what makes the focus person happy

  • Distinguishing what is important *to* the person, in addition to what is important *for* the person

  • Determining what are the focus person’s strengths? What can they bring to the table?

  • Including Goals and Strategies based on the above
     

Participants in the Person Centered Planning process include the focus person. Persons that are part of the Focus Person’s Circle of Support are involved. Friends, family and long term service providers can share valuable information, support, and creative ideas. It is acknowledged that often the Focus Person may no longer have the cognitive ability to actively participate in the planning process. At this point, the Guardian becomes researcher, delving into past preferences and decisions that the Focus person may have made prior to incapacity. Behavioral observations can provide clues as to what brings the Focus Person enjoyment and relaxation. Service plans are dynamic, changing to meet any emergent needs and desires, and acknowledging the goals achieved.


Often, residential and day habilitation service providers will have care plans that delineate the services that they will be providing, as well monitoring the status of the person, successes achieved, and emerging needs. It is important for the Guardian to attend these meetings. This is an opportunity to meet with the facility’s representatives from disciplines such as OT/PT, Nursing, Dietary, and Social Services. This is a great opportunity for the Guardian to participate in group discussions regarding client status and planning. The Guardian has a proactive responsibility to be part of this process.  The Guardian approves the implementation of the service plan. The Focus Person should also be present, and encouraged to take an active role in the planning conference. 

 

 

Decision-Making Standards

The areas in which decisions are made should be enumerated in the Order Appointing Guardian. 

A Guardian may be required to make decisions in the areas of:

  • Medical treatment

  • Residential Placement

  • Behavioral Health Services

  • Ancillary services such as occupational therapy and physical therapy, home health and speech therapy.

  • Vocational or day habilitation services

  • Social/Recreational opportunities.
     

There are two standards for decision making: Substituted Judgment and Best Interest. Substituted Judgment is the preferred standard as it promotes the person’s involvement in the decision-making process as well as honoring the person’s preferences. Substituted Judgment relies on the person’s articulated preferences of self-determination and autonomy.  Substituted Judgment involves making the decision as the person would have made it prior to no longer being able to do so. This means becoming familiar with the person’s lifestyle, cultural considerations, preferences, and goals and considering decisions that the person made prior to incapacity.

Best Interest is the decision-making methodology that is used when a Guardian lacks insight as to how the person would have made this decision. This can occur when a person has significant developmental disabilities. In some situations, there are no involved friends or family members that could help shed light on how the person made past decisions.  When applying the best interest standard,
the Guardian must make decisions based on facts and circumstances existent at the time a decision is made with little or no prior available history.


A critical part of the decisions made utilizing the Best Interest Principle is the consideration of the least restrictive or intrusive intervention. The less restrictive alternative is a course of action that allows minimal actions that impinge upon the person’s autonomy, while meeting the person’s health and safety needs. This is a balancing of the Guardian’s responsibility for ensuring health and safety needs are met, while honoring and encouraging the person’s self-determination.

It is essential that the Guardian feels confident that they have the necessary information to make the decision. If so, the decision is made using substituted judgment (ideally) or best interest if necessary.


Selection of service providers requires consideration of the following questions:

  • What are the service goals for the person?

  • What are the available alternatives?

  • How long will the service last?

  • What are the after care or follow up needs?

  • Who is responsible for managing the service?

  • Who will supervise any direct care staff that administer the treatment or service?

  • What are the qualifications of the staff providing the service?

  • Is this the least intrusive or restrictive method of meeting the need?

  • Can the person afford it? 

     

Financial Management

A Guardian of the Estate is usually appointed when a Person has assets. However, when there is no need for Guardian of the Estate, the Guardian of the Person may be required to coordinate the Person’s finances. Often, the Guardian may also be the person’s Social Security Representative Payee. The Social Security Administration will appoint a Representative Payee to manage the client’s benefits when alerted to the need. Information reviewed by the Social Security Administration includes a Physician’s statement deeming the person unable to manage their benefits, or at risk for exploitation. The Guardian may also serve as the Veteran’s Administration Fiduciary. A budget should be developed utilizing these funds to meet the Person’s needs.  These Public Benefits require an annual reporting or accounting as to how the benefits were used. The Guardian has the responsibility of obtaining and maximizing any public benefits that are available to the Person. Familiarity with Medicaid and Medicare is required for this role. Educating oneself about the eligibility and process for obtaining these benefits is critical to ensuring that the Person’s needs are being met.

Monitoring.


The Texas Minimum Standards for Guardianship for Certified Guardians requires at least a monthly visit to determine the well-being of the person under guardianship.   The Guardian is required to file an annual report on the condition of the person under guardianship.  TGA offers educational opportunities for guardians to ensure proper care for the person under guardianship.

Any concern about the person experiencing abuse, neglect or exploitation, report it to the Court, Adult Protective Services, and any other appropriate investigatory agency.


Advocacy

The definition of advocacy is the “act of pleading for, defending, supporting or espousing a cause”.  The Guardian’s goal is ensuring the wellbeing of the Person, while protecting as much freedom and autonomy as possible.

Areas that a Guardian will be advocating on behalf of the person include:

  • Freedom from abuse and neglect

  • A high quality of services in all domains (residential, medical)

  • Privacy

  • Vocational or habilitation services

  • Religious and Civil Rights

  • Entitlements and Benefits

  • Confidentiality

  • Access to the community services

  • Rights Restoration


Annual/Final Report

The Guardian of the Person is required to file an Annual Report of the Person. This document informs the Court of the client’s current status and activities. The Annual Report of the Person requires information on significant events such as moves, decline or improvement in mental /physical health as well as whether the guardianship should be modified, terminated, or expanded. A final report must be filed when the guardianship is terminated.

The Texas Guardianship Association expresses thanks to the authors who wrote the training modules for Baylor University Guardianship Certificate Course, which is a joint project by the Baylor University’s Diana R. Garland School of Social Work, the Texas Guardianship Association, and Friends for Life.

TEXAS GUARDIANSHIP ASSOCIATION | (979) 942-3434