Guardianship

Every state has enacted statutes that empower the courts to appoint a surrogate with the authority to make decisions on behalf of a mentally incompetent ward. The terminology for the court-appointed surrogate decision-maker varies among jurisdictions; "guardian" is the most commonly used term, although "conservator" and other terms are employed in some places.

Guardianship statutes are an example of the state's inherent parens patriae power to protect those who cannot take care of themselves in a manner that society believes is appropriate. The origins of some form of guardianship based on the state's benevolence toward the dependent stretch back beyond thirteenth-century England.

The terms "capable" or "having capacity" usually are used to describe individuals who, in a health care clinician's professional judgment, have sufficient capacity to make their own choices. The terms "incompetent" or "incompetence" refer to a court's formal ruling on the decision-making status of an individual in the context of an official guardianship proceeding, although some modern guardianship statutes use the term "capable" to refer to a judicial judgment.

Every adult person is presumed to be legally competent to make personal decisions in life. This presumption may be overcome, and a surrogate decision-maker may be appointed, only on a sufficient showing that the individual is mentally unable to participate authentically (i.e., consistent with previously held values) and self-sufficiently in a rational decision-making process.

State guardianship statutes contain a two-step definition of competence. First, the individual must fall within a particular category such as old age, mentally ill, or developmentally disabled. Second, the individual must be found to be impaired functionally—that is, actually unable to care appropriately for person or property—as a result of being within that category. The requirement of functional impairment is emphasized in those states, such as California, whose statutes restrict eligibility for guardianship to those who are "gravely disabled" or the equivalent.

In disputed, adversarial guardianship proceedings, medical and psychological experts usually are called on to testify by each side about the proposed ward's categorical problem and its impact on the proposed ward's functional abilities. In practice, this medical and psychological testimony frequently becomes the primary, if not the sole, basis for adjudicating incompetence.

A court appoints a guardian (referred to in a few jurisdictions as a conservator or committee) as substitute decision-maker for an incompetent person. The incompetent person for whom a guardian is appointed is a "ward," and the relationship created between the guardian/ conservator and ward is called "guardianship" or "conservatorship."