This is the most challenging issue we regularly deal with in our practice. It requires us to evaluate another person’s cognitive capacity, which is often a complex and difficult task. The legal standard is guardianship is appropriate “if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.”
Cognitive impairment exists on a spectrum. On the lesser end, we commonly see people making bad decisions, having short-term memory issues, or both. On the higher end are people who cannot communicate meaningfully with others or have lost the ability to communicate altogether. For those on the higher end, determining their lack of capacity or the appropriateness of guardianship is easy. Evaluating those on the lesser end of the spectrum or anywhere in between can be inherently tricky. For some people, capacity comes and goes or is “episodic”. They have good days and bad days. Some people’s episodic capacity is connected to whether they are compliant with their medications. Others are generally competent and aware, but there are one or several specific things they cannot process correctly. For example, they have paranoid delusions, which cause them to believe things that are not real, or they cannot accept or process a challenging diagnosis or health issue, which requires them to make difficult changes to keep them safe.
Simply making bad decisions or having memory issues does not mean someone needs a Guardian. However, these things can be indicators of the need for Guardianship. Here are some other questions we consider: is this person oriented to time, is this person oriented to place, does this person recognize friends or family members, is this person able to take appropriate action like calling 911 if an emergency happens, can this person make/keep appointments with doctors, and can this person advocate for themselves with their doctor and/or follow medical advice. I also find it helpful to know whether these issues are new and worsening or if they were always part of their personality.
For me, whether guardianship is appropriate depends on the answers to the following questions. Does this person understand the information presented to them about their health or safety? Can they relate the information to their situation? Can they evaluate the information by applying it to their personal risks and benefits? Can they communicate a decision consistent with their health and safety?
