Guardianship

Ordinarily the person who will be most directly affected by any particular decision about health care, finances, social services, residential issues, or other personal matters is the person who gets to make that decision. There may be times, however, when that individual is not capable of making and expressing difficult personal choices. In those instances, the legal system may need to intervene on behalf of the incapacitated individual. This may be accomplished through a variety of legal devices that vary in terms of their invasiveness into personal autonomy. One of these legal devices is guardianship.

Incapacity to make and express valid decisions is a problem that affects older persons in disproportionate terms. The extent of mental disorders in old age, representing decrements in both intellectual and emotional functioning, is considerable. For some older persons, mental dysfunction may be a carryover from earlier life. For most of the elderly, though, mental health problems develop later in life as a result of organic brain disorders (primary degenerative disorders or multi-infarct dementia), paranoid disorders, drug reactions, excessive use of alcohol, or as the by-product of various physical illnesses. These problems may take the form of cognitive impairment (dementia) in memory, attention, or information processing; emotional lability (psychosis) often manifested as aggression; or pseudodementia (depression). Because of this prevalence of impairment, guardianship is a legal device that disproportionately affects older persons, especially those residing in institutions.