Beginning in English common law and continuing until the mid-to-late twentieth century, competence was considered to constitute an all-or-nothing state. That is, a person either was deemed competent to make all decisions about her person and property (“global competence”) or to make none (“global incompetence”). A common situation in which this occurred was when the family of an elderly person with dementia feared that she was no longer capable of paying bills, caring for the residence, or protecting her health. The family would request an evaluation of the person’s competence before or after filing a petition for guardianship, which would allow a family member or other third party to be appointed to make all decisions on the person’s behalf.

Mental health professionals called on to perform such evaluations received little guidance from statutes and court decisions, which offered only the vaguest descriptions of what constitutes competence, a situation that remains fairly prevalent even today. The Uniform Probate Code defines incompetence as follows: “A mentally incompetent person is one who is so affected mentally as to be deprived of sane and normal action, or who lacks sufficient capacity to understand in a reasonable manner the nature and effect of the act he is performing.” State statutes vary from vague: “Incapable of caring for himself” to somewhat more specific: “Unable to properly provide for his own personal needs for physical health, food, clothing, or shelter.” It seems apparent, from a review of the law, that the tendency has been to give the judiciary maximal flexibility in determining that an individual is incompetent and therefore in need of guardianship. This has advantages—individuals in need of assistance are unlikely to fall through any legal cracks—and disadvantages—the uncertainty of the standard makes it difficult to prevent abuse in cases in which the judge is too uncaring or uninformed to conduct a sufficient inquiry before ruling; the frequent failure of the adversary system, leaving the potential ward without adequate representation, exacerbates this problem. In any event, the law provides little guidance for clinicians who are attempting to determine if the patient they are examining is in fact incompetent or who are preparing testimony for a competence hearing.

Many clinicians, faced with this situation, fell back on clinical criteria to determine when a patient was no longer competent. The mere presence of psychosis, dementia, intellectual disability, or some other form of mental illness or disability was often taken as a per se indicator of incapacity. However, as every clinician knows, milder or more focal disorders are not incompatible with the retention of decision-making capacity, pointing to the inadequacy of a diagnosis as the sole indicator of incompetence. Moreover, people may lack competence for some decisions (e.g., a patient who believes that medication is poison may not be competent to make a decision about treatment), while retaining the capacity to make other decisions (e.g., the same patient may be perfectly capable of managing his finances). Thus, conceiving of competence as necessarily global—one is entirely competent or incompetent—has significant flaws.

Before considering how the situation changed in the latter half of the twentieth century, though, we should note the obvious: some people are globally incompetent, i.e., unable to make any meaningful decisions for themselves. The obvious cases are comatose or delirious patients, but patients with moderate to severe dementia, severe psychosis or depression, and moderate to profound intellectual disability may also fall into this category. They may lack even basic awareness of the circumstances of their living situation, sources of support, extent of resources, significant supportive relationships, any limitations on natural functions, and the presence of any threats to immediate security (e.g., trust fund running out or major lawsuit pending). Or they may be aware of these circumstances but unable to understand or appreciate the consequences of decisions about them. However, the need for a more focused approach to competence determinations is evident.

In the middle of the twentieth century, the evident limitations of a system focused on global competence became unavoidable. The traditional approach not only conflicted with clinical reality but also was in tension with other aspects of the law, which had long recognized that specific capacities could be impaired while others were retained. Thus, legal standards for determining the ability to write a will (testamentary capacity), enter into a contract, and participate in criminal proceedings (see Chap. 6) focused on a much narrower set of capacities that might be impaired even when a person was not globally incompetent.

An important driver of the change that was about to occur was the report of the President’s Panel on Mental Retardation in 1963. It noted that people with intellectual disabilities (then commonly referred to as “mental retardation”) often retained the capacity to make day-to-day decisions about their lives, even though they might need assistance in managing their finances. Hence, the Panel encouraged the use of limited guardianships or conservatorships (as they are called in some jurisdictions), tailored to the specific impairments of each person. The idea that determinations of incapacity should be focused on specific functions that were impaired, rather than routinely being made on a global basis, struck a chord among disability rights attorneys, advocacy groups, clinicians, and others. From a legal perspective, it was consistent with the growing recognition that rights should be limited only to the extent necessary to accomplish the state’s legitimate goals (the so-called least restrictive alternative doctrine). Courts, and later legislatures, began to mandate this approach, which was rooted in two related core concepts.

First, capacity assessments are intrinsically functional assessments. That is, the assessment should not focus on a person’s diagnosis or other aspects of their status but on their abilities to conduct the functions in question. In general, these abilities fall into two broad categories: the ability to decide (i.e., decisional capacities) and the ability to do (i.e., performative capacities). Second, capacity assessment should—in the absence of such indicators of global incompetence as coma or severe dementia—focus on the specific decisions or tasks at issue. Thus, a person might be found capable of deciding where to live but incapable of managing her finances or making complex medical treatment decisions. These days, most courts, at least in principle, will tailor a guardianship or conservatorship order to limit the powers of the substitute decision-maker to the incompetent person’s specific areas of impairment.

Although the move toward assessment of specific decisional capacities suggests a more focused evaluation, the law at first glance appears not to be terribly helpful with regard to clarification of the standards to be applied. Court opinions cite a wide variety of standards for determination of a given specific competence (e.g., competence to consent to treatment), sometimes even within the same jurisdiction. Each court often tends to derive standards de novo, without relying on precedents from other courts. This compounds the confusion.

Careful review of court decisions and statutes in this area, however, suggests that most legal standards are actually composed of one or more of four basic elements. When a clear standard exists in a jurisdiction, the composite elements should be identified and an evaluation structured accordingly. If no clear standard has been formulated by the legal system, evaluators should assess the alleged incompetent on all four standards (i.e., communication of choice, factual understanding of the issues, appreciation of the situation and its consequences, and rational manipulation of the information), allowing the court or other decision-maker (e.g., hospital ethics committee) to select which are relevant in the case.

a. Communication of a choice. It may seem self-evident, but a person cannot be considered competent unless the person can communicate the choices that he makes. This capacity refers to more than just being able to say “yes” or “no.” A choice should be sufficiently stable that it can be acted on before the person changes his mind. Unpredictably fluctuating competence should generally be viewed as incompetence, especially in situations in which a decision about treatment must be made promptly. Although a change in decision is not in itself a sign of incompetence, vacillation of a degree that precludes implementation of any choice, especially in the context of mental disorder, may constitute a basis for a finding of incompetence.

b. Factual understanding of the issues. A competent person ought to have the ability to understand the facts relevant to the proposed decision. If competence to consent to treatment is at issue, the person should understand the information required to be communicated by the doctrine of informed consent: the nature and purpose of the proposed intervention, its risks and benefits, and the possible alternatives, including the option of no intervention, along with their risks and benefits. For competence to make a will, the testator should understand the nature and amount of her property, the nature of a bequest, and the identity of and relationship to her natural heirs. Understanding can be tested by asking the evaluee to paraphrase the information provided to her or to state her understanding of the situation.

c. Appreciation of the situation and its consequences. Mere factual understanding may be insufficient to establish decisional competence. A person can understand what he is being told without grasping the implications of that information for his own situation. For example, a psychotic patient faced with a decision about treatment may understand that the doctors believe he is ill and that medication is needed, but his denial that he is mentally disordered will short-circuit any effort at competent decision-making. In the case of someone writing a will, his understanding that he has two sons, whom most people would consider the natural objects of the inheritance, may be distorted by his delusional belief that they have been plotting to kill him so they can inherit his money. He lacks appreciation of the nature of their relationship to him. Appreciation can be assessed by an exploration of the subject’s conceptions of the situation at hand, the likely outcomes of alternative courses of action, and the motives of those involved.

d. Rational manipulation of information. Rational manipulation (sometimes referred to as reasoning) involves the use of logical processes to compare the benefits and risks of various courses of action. When it is used, the outcomes selected are logically consistent with the starting premises. It should be emphasized that the process is being tested, not the outcome of that process. If the reasoning process flows logically from its starting premises, although the result might be rejected by most people (e.g., a person refusing potentially life-saving medical treatment), we cannot say that rational manipulation is impaired. Examination of the person’s chain of reasoning is required to test this capacity.

Some tasks for which a person’s competence may be called into question are purely decisional (e.g., consenting to or refusing a surgical procedure) or largely so (e.g., amending a will, which may require contacting an attorney, who will make the changes needed). Once a decision is made, it will be implemented by others. Other tasks, however, have a mixed decisional and performative character (e.g., carrying out the activities of independent daily life, such as shopping, cooking, and cleaning) or are primarily performative (e.g., driving). In these latter cases, the usual standards for decisional capacity are either inadequate in themselves or simply inapplicable.

The most commonly arising question of performative competence in medical settings is whether a patient, usually elderly and with some degree of cognitive impairment, is capable of continuing to live alone. Sometimes the answer is evident from the person’s cognitive limitations alone, but often a direct, functional assessment is required. This can be based on the reports of family members or friends but may entail direct observation of the person in her residence or community. Social service agencies can often provide a service of this sort, allowing in vivo assessment, taking into account the presence of supports in the person’s natural environment (e.g., a helpful neighbor) that can allow a patient to maintain independent function. Another frequent question that mental health professionals must address is whether a patient is capable of managing her Social Security, veterans’, or other benefits, which again is likely to require information about her actual performance in real-life settings.

The standards to be applied for the assessment of various performative capacities necessarily differ with each case. In some cases, they reflect formal legal requirements, as when a person is incapable of meeting his basic needs for food, clothing, and shelter, necessitating the appointment of a guardian and transfer to a more protected setting. Another example comes from the Social Security Administration’s standard for appointment of a representative payee to receive benefits on a person’s behalf, namely, that the person is unable to manage or direct the management of his benefits, so as to meet his basic needs. In other cases, the standards may be harder to formulate in words but may nonetheless regularly be judged by examiners, e.g., the ability to drive safely, which motor vehicle bureaus assess routinely. The key point, however, is that the standard is necessarily based on a determination of the person’s actual performance, which usually cannot be assessed in the office or hospital setting, as opposed to assessment of the decisional abilities alone.

a. Policy considerations in choosing a standard. Implicit in this discussion has been the idea that there is no single standard of competence. Neither decision-making nor performative competence is a scientifically determinable state, nor coterminous with any medical condition. It represents a level of functioning at which society is willing to allow a person to continue making her own decisions or performing her own tasks. As such, the standards selected and the levels at which cut-offs for incompetence are set should be expected to reflect policy considerations such as the degree to which individual autonomy in general, and in relation to this decision or task in particular, ought to be encouraged; the extent to which the interests of the actor or of third parties ought to be protected, regardless of the wishes of the actor; and the ability of society to intervene in the name of either of these goals in a manner generally perceived as fair.

Given the differences that are likely to arise when an effort is made to balance these factors, it is not surprising that different jurisdictions have reached varying conclusions concerning standards and cut-offs for particular competence determinations or that within the same jurisdiction standards and cut-offs may vary for competence to perform different acts. Courts frequently say, for example, that, although the standards for competence to write a will are similar to those for competence to contract, the cut-offs for calling the actor incompetent differ. Greater leeway is given to the allegedly incompetent author of a will (i.e., courts are more reluctant to call him incompetent) because of the belief that once he is dead, there is little point in trying to protect his interests, as distinct from his expressed wishes—and little ability to do so fairly. On the other hand, competence to contract is judged more rigorously because the interests of a living incompetent person may outweigh his wishes as reflected in the contract.

Similar, although more controversial, arguments come into play where competence to consent to treatment is concerned. Advocates who believe, for example, that treatment of psychotic persons with neuroleptic medication is undesirable and that given the choice, many psychotic persons will decline treatment, argue for less rigorous standards for competence or higher cut-offs for declaring someone incompetent, or both. Those who agree that refusal is likely, but believe that it will usually be deleterious to the patient, urge stricter standards, lower cut-offs, or both, so that those decisions can be overruled.

Nothing is inherently dishonest about setting standards of competence to achieve policy goals, although mental health professionals accustomed to objectively determined standards (e.g., for the
diagnosis of mental disorders) may be uncomfortable with this process. Those involved, however, should recognize the policy-relevant nature of standards of competence and join the debate on those grounds.

b. Sliding scale approaches to competence. Given the relative nature of competence standards, it should not be surprising that suggestions have been offered for varying standards and cut-offs applied in particular cases (not just among different kinds of decisions or tasks) according to the values at stake. The argument has been advanced particularly with relation to consent to medical or psychiatric treatment. It has been suggested, for example, that patients consenting to low-risk, high-benefit treatment should be allowed to do so even if fairly impaired on most measures of competence, because their autonomy, interests, and physical well-being will benefit thereby. They might be considered competent if they can manifest some basic understanding and communicate a choice. In contrast, patients refusing such treatment might be held to higher standards, because they run the risk of serious physical harm. The standards for competence used in their case might require more thorough understanding, appreciation, and rational manipulation.

From a purely abstract perspective, the sliding-scale approach is problematic because of the discretion it appears to allow the evaluator in setting the standard, or cut-off, used. Thus, a physician who believed that a patient’s decision to reject recommended treatment was wrong could adjust the standard of competence used to ensure that the patient was declared incompetent. This is troubling. In practice, however, there is a common-sense feel to the sliding-scale method. It limits the need for formal declarations of incompetence when such procedures would be unlikely to change the outcome (e.g., a marginally competent patient consents to low-risk, high-benefit treatment). Furthermore, it appears maximally protective of patients’ health interests in settings in which it may make sense to give these priority (e.g., a marginally competent patient refuses low-risk treatment that will almost certainly save her life). Regardless of the formal standards in place in any jurisdiction, it is likely that a sliding-scale approach, with regard at least to cut-offs, is being used in practice in health care settings, and probably in courts, as well.

When decisions need to be made about the management of an allegedly incompetent person’s financial assets or living situation, consonant with the usual models for deprivation of rights, a judicial proceeding is likely to be required. In such cases, an interested party can initiate a petition to the court of proper jurisdiction (often a probate court) alleging that the individual in question is incompetent and in need of a guardian. The usual standard that has to be met is a finding that the proposed ward is simply incapable of managing his affairs or unable to care for his property or for himself. In addition to persons with mental illness and the intellectually disabled, subjects for guardianship proceedings might include persons with dementia, alcoholics, drug addicts, and the physically disabled, although in the last case some impact on mental functioning is usually required. Medical testimony might or might not be required, and notice is usually given to the subject of the petition.

Whether or not a physician testifies, the petition is accompanied by an affidavit from a physician attesting to the patient’s incompetence. Optimally, a framework for assessment such as that outlined earlier (see Sec. II-A-3) will form the basis for the physician’s evaluation. In some states, the court is required to appoint an independent investigator, who meets with the alleged incompetent, explores her situation, and reports to the judge on the perceived necessity for
appointment of a guardian. The judge listens to the testimony, including sometimes the testimony of the alleged incompetent (although in many states that person can be excluded from the hearing, when there is a reason to do so), and makes a determination as to whether incompetence has been proven, applying the relevant standards. If so, a guardian is appointed with power to make personal and financial decisions for the incompetent ward, either on a plenary basis or with more limited powers tailored to the specific incapacities of the person. This model varies little from jurisdiction to jurisdiction.

A guardian might be selected from among the members of the family or, if the estate warrants more professional supervision and contains sufficient funds, a lawyer, accountant, banker, or even member of the clergy might be appointed. The guardian’s expenses and—if not a family member or friend—fees are defrayed by the ward’s estate, and in turn the guardian is required to file periodic notice with the court of the status of the property entrusted to his care. In the absence of a family member or friend who can serve as guardian and of sufficient funds to compensate a professional to fill that role, courts often ask attorneys to serve as pro bono guardians or, in some states, can turn to public guardian services. Guardianship can be terminated by a showing that the ward no longer meets the criteria that warranted initiating the process: that a child has attained majority, a physical infirmity has been ameliorated, or an abnormal mental state has resolved.

In at least one important context, a specific competence is determined, for all practical purposes, outside of a courtroom. When the capacity to consent to medical treatment is in question, physicians traditionally have conducted their own assessments of patients’ abilities to consent. If the patient is thought to lack capacity, her family or a close friend is asked to consent on her behalf. This model continues to be followed in almost all general health care settings and in most states is now embodied in statutes that are typically designated as family medical decision-making laws. These statutes establish a hierarchy of decision-makers, usually beginning with someone designated by the patient (see discussion of health care proxy laws in Sec. III-G below) and continuing in a descending order of priority through spouses, adult children, parents, siblings, and more distant relatives. Only in the absence of a substitute decision-maker, or when potential decision-makers of equivalent levels of priority are in disagreement among themselves or make a decision that the caregivers believe is not in the patient’s best interests, is recourse had to the courts. However, in the absence of judicial involvement, the physician’s determinations of functional capacity have the same effect as formal court rulings on competence, because the patient loses decision-making power.

The desirability of this nonjudicial process has been debated widely. On the one hand, it is argued that enormous potential for abuse exists when physicians and family members can collude to deprive patients of decision-making rights. The seriousness of the deprivation militates in favor of a judicial proceeding. On the other hand, the evidence for such abuse is all but nonexistent, and the health care system would slip into paralysis if it had to delay treatment of the large percentage of severely ill patients who are incompetent until an often long-delayed court hearing could be obtained.

It should be noted, though, that competence determinations by physicians are not accepted for all classes of medical procedures. The courts have identified several categories of treatments that they have termed extraordinary. Even guardians are not allowed to consent to these procedures without explicit judicial approval. As this doctrine has evolved, sterilization, psychosurgery, and (in some states) electroconvulsive therapy (ECT) have been included in this category. As described in Chap. 3, Sec. II-C-1, courts and legislatures in some states have added treatment with neuroleptic medications to the category of extraordinary treatment. The usual rationale is that, as with the other procedures listed earlier, they can lead to permanent adverse effects (e.g., tardive dyskinesia and related syndromes), are susceptible to abuse (e.g., being used to sedate patients solely for the purpose of ease of management), and have the potential to alter mental functioning (although this latter is frequently misinterpreted because the effects are usually normalizing). Thus, in many states, physicians cannot, on their own, determine that patients’ consent is unacceptable. Some more structured and independent assessment is required, especially when patients refuse treatment (see Chap. 3, Sec. II-C-2).

Guardians are appointed by the courts after formal judicial hearings at which persons’ incompetence is adjudicated. They are given the power to make decisions on behalf of incompetents, with legally binding effect, as if the decisions had been made by the persons themselves.

a. Traditional concepts of guardianship. The role of guardian dates back to Roman times, when it was first recognized that a permanent or temporary disability experienced by an individual left his property subject to dissipation unless an arrangement for its supervision could be provided. Anglo-American law traces the role of the guardian to the traditional power of the lord of the manor to assume responsibility for the property of those who were not able to care for it themselves (e.g., minors, the physically infirm, and the intellectually disabled). As that prerogative was absorbed by the Crown in medieval times, the mentally ill also came to be seen as worthy of such protection. Yet, historically it was only the property of the incompetent individual that was the responsibility of the guardian, not the individual himself. The goal of such intervention was to conserve the property in question for the benefit of potential heirs, dependents, and creditors and to prevent the ward from becoming a burden on the public purse.

Modern law recognizes a broader potential scope of concern for a guardian, the well-being of the individual himself. This form of guardianship over the person, which might coexist with, or exist independently of, control over the individual’s property, grants broad powers of decision-making over the personal affairs of the ward, such as living situation, choice of medical treatments, and changes in personal status.

Until the 1970s, appointment of a guardian led to major losses of rights for the ward. In general, no distinction was made between guardianship of property and of person; a finding of incompetence usually applied to both. Thus, the ward lost the power to make contracts, to allocate and spend her money, to initiate lawsuits, to hire agents (attorneys, doctors, etc.), to marry or divorce, and to decide where to live. All these powers were transferred to the guardian. In many instances, although forfeiting the right to drive a car, the ward retained the power to make a will. When a guardian was appointed for the purposes of managing the estate alone, an exception to the general practice, he was often called a conservator. In that case, the ward lost only the power to control her economic affairs.

b. Newer concepts of guardianship. The all-or-nothing nature of traditional guardianship obviously leaves a good deal to be desired. Patients whose illnesses interfere with a closely circumscribed area of functioning, yet who are able to handle many other of their affairs quite well, are faced with the choice of operating without the protection afforded by a guardian or of forfeiting their rights to control every aspect of their lives. Because this situation most frequently arises among the intellectually disabled (who might be incapable of managing their finances but perfectly able to choose a place to live), the idea of limited guardianship has received the greatest impetus from law in the area of developmental disability.

Under this concept, the needs of each patient are carefully evaluated and a guardian is appointed with powers delimited to the specific incapacities of the individual. The advantage of this approach is that each ward enjoys the maximal possible freedom consistent with his disability; the disadvantages include the expense of the evaluation process and the difficulty of determining, before specific problems arise, the real scope of the patient’s incapacity. Some studies have shown that even in the states in which limited guardianship statutes exist, the power to tailor the guardianship to fit the patient is infrequently used, with standard guardians being appointed instead.

An obvious congruence exists between the concept of assessing specific competence and the use of limited guardians. The powers of a guardian can be limited to those functions for which specific incompetence has been found to exist. One of the more promising areas for the application of limited guardianship is consent to medical treatment. Because many patients who incompetently refuse treatment have delusional perceptions specifically related to medication,
surgery, or other interventions, whereas their other areas of functioning remain intact, they are ideal candidates for a guardianship that deprives them only of the right to decide about their treatment course.

c. Advantages and disadvantages of guardians as substitute decision-makers. The clear advantage of a judicially appointed guardian lies in the system’s ability to hold that person accountable for her decisions. Guardians must make regular reports to the appointing court concerning their actions. These records can be reviewed by interested parties and can be used to challenge a guardian’s judgment. The appointing court can be petitioned by an interested party to hold a hearing on the performance of a guardian, and guardians can be removed and even sanctioned if they violate the trust that has been lodged in them. Thus, the system is quite useful when decisions must be made that have low visibility and in which the interests of the guardian and the ward may differ. Management of assets is a good example of a situation for which formal guardianship may be the best available option.

It must be recognized, though, that the use of formal guardianship has certain costs as well. Formal proceedings are expensive and time-consuming, requiring attorneys for all parties and often testimony from expert witnesses. Privacy of the alleged incompetent is compromised. Subjects of these hearings may feel as though they are on trial. If a guardian is appointed who is not familiar with the incompetent person, the decisions he makes may not reflect that person’s preexisting wishes or interests. When situations exist in which the advantages of a guardianship process are not likely to obtain, there may be good reason to seek some other form of decision-making. Decisions concerning medical treatment may be a good example of this. These are usually high-visibility decisions, made in the context of a medical care system that is ostensibly charged with protecting the patient’s interests. Although conflicts of interests can exist between decision-makers and patients, they tend not to be common. A less formal decision-making process than guardianship may be appropriate here.

d. Stresses on the guardianship system. Several factors have combined to increase the demands being placed on the guardianship system. The attention being paid to competence to consent to treatment, the regulations requiring widespread screening of mentally ill and intellectually disabled populations for competence (frequently a spin-off of right-to-treatment suits), and the resulting influx of indigent persons into a system that traditionally functioned to preserve wealth, all these have pushed the process for obtaining guardians to the breaking point in many states. In the absence of funds from the patient’s estate to pay the guardian, it has become impossible to provide guardians for all who need them. Previously, lawyers or others would serve pro bono for those few indigents who required guardianship, but that is no longer an adequate solution when thousands of such cases exist. Evidence suggests that these practical difficulties have frustrated the intent of those who support widespread, individualized competence assessments; in many places, despite the law, these are just not being done.

Several possible solutions exist. The state itself could pay guardians directly. Given the amount of time required to perform conscientiously in the guardian’s role, particularly when such issues as overriding the patient’s refusal of treatment must be dealt with, it is unlikely that the states would be willing to provide sufficient funds to entice members of the legal profession, the traditional source of guardians, into that role. The as-yet-undefined liability of guardians who oppose their ward’s stated wishes in relation to treatment and other issues is another patent deterrent. In past years, hospital superintendents or other staff were often appointed as their patients’ guardians, sometimes serving simultaneously as guardian for thousands of patients, but society appears no longer willing to accept the ostensibly inherent conflicts of interest resulting from combining those two roles.

e. Public guardians and other solutions. Another possible solution is the appointment of state employees to positions as full-time guardians, responsible for the oversight of a number of wards. Ideally, such individuals would have some training in those clinical areas required to understand and to make decisions about their wards’ disabilities and would be independent enough of those agencies that deal with their wards to be free of conflicts of interest (see Sec. III-F-4). Social workers might be ideal candidates for such positions. However, in some states in which this has been tried it has led to either (1) a token guardianship, with one person responsible for hundreds
of patients, so that no real protective influence is exercised, or (2) a merger of public guardianship into the regular duties of social workers in departments of welfare, leading to conflicts of interest and the interment of a personal relationship under the burdens of a staggering caseload. A variation on this approach is to contract out the responsibility for guardianship to nonprofit corporations, a technique that might minimize conflicts of interest but, in the absence of sufficient funding, is prone to the same problems of overburdened workers as the public sector.

What is lacking in all these arrangements, of course, is the sense of intimate concern for the incompetent individual that most people think of when they envision a guardian-ward relationship; and perhaps missing, too, is a sense of trepidation about making decisions for other people that touch the most fundamental aspects of their lives. To the extent that the protective function becomes bureaucratized, one wonders about the value of interposing a faceless third party between the individual and the professionals with whom she deals, who previously would have taken it on themselves, acting within the ethical tradition of their profession, to make the decision for the patient.

f. Abuses of the guardianship process. It should be noted that legal scholars raise a number of objections to the manner in which guardianship laws are administered. Despite the widespread trend for reform of state guardianship statutes, many still lack those elements traditionally associated with due process in other settings. The alleged incompetent does not always receive notice of the hearing. When notice is issued, little effort may be made to assure that the person facing the proceedings actually understands what is at stake. Although lawyers may represent the person, they are frequently not required to do so; if the person cannot afford a lawyer, often none is available. Even the person’s presence at the hearing may be waived. A number of studies have, furthermore, shown that the presence of the presumed incompetent and of a lawyer representing him is no guarantee of a rigorous examination of the situation by the court. Lawyers tend to be unfamiliar with the guardianship laws and with possible alternatives, and they are often uninterested in challenging medical or psychiatric testimony. The standards under which incompetence is determined are vague (see Sec. II-A) and susceptible to almost any interpretation; the distinction between deviance and incompetence is frequently obscure.

From the point of view of the psychiatrist or other mental health clinician who is called to testify in guardianship proceedings, knowledge of this potential for abuse should signal caution. The careful clinician who is looking toward her patient’s best interests will want to investigate who is requesting the competence hearing, what the real basis for the request is, and what the impact is likely to be on the patient of a finding of incompetence. Because none of the other parties involved may consider possible alternatives short of guardianship, such as the provision of social services that would enable an elderly person to live on his own, the psychiatrist ought to take the initiative in considering such alternatives as a legitimate and appropriate element of his evaluation. The patient should of course always be carefully examined, and important or decisive information that is obtained from family members or friends should be corroborated before it is accepted.

The courts have reserved the right to make decisions about extraordinary procedures for incompetent people. In addition to sterilization, psychosurgery, ECT, and, in some contexts, the use of neuroleptic medications, this category may include psychiatric hospitalization. The advantages of judicial decision-making in these cases are presumed to relate to the more dispassionate attitudes they can take toward these cases, especially in comparison with involved family members. They have the ability to order investigations of relevant matters, as by appointing a guardian ad litem (in this context, an independent investigator working for the court), and to take testimony before making a decision. In addition, judges are the quintessential makers of the tough decisions in our society. It may seem fitting to relegate these difficult choices to them as well.

In contrast, the ability of a judge to learn about a case is undoubtedly limited by her other responsibilities and the degree of interest she has in the area. Not knowing the incompetent person, the judge starts at a relative disadvantage compared with family members or friends who may be appointed guardian or make decisions informally. The costs of learning what she should know may be steep. A judge’s ability to monitor the incompetent person’s state as the situation evolves is also limited, given her usual need to rely on testimony presented in court.

Should judges make substitute decisions? Unless a class of decisions can be identified in which substantial bias is likely to exist among other decision-makers, it would seem wise not to place these decisions on the judiciary. There may also be some point to using judges for decisions about procedures so controversial that an assurance of absolute independence and incorruptibility is needed. In other cases, though, some other mechanism is preferable.

Informal decision-makers are people who know the incompetent person—family or friends—and who make decisions on his behalf without being formally appointed to that role by a court. Most commonly, this occurs in the medical setting. A number of states, recognizing the advantages of this approach, are beginning to codify it in statutes, at least for particular kinds of medical decisions, such as consent to “do not resuscitate” orders. Typical statutes, as in Virginia, establish a hierarchy of relationships with patients that governs who is asked to provide consent (i.e., spouse if available before children; children if available before siblings). Many cases also occur in which family members, without formal procedures, take over responsibility for managing the life and finances of an impaired relative, especially an elderly one. Unless challenged by another disgruntled relative, this procedure usually works fairly well and reduces the cost associated with formal guardianship. The obvious disadvantage is the absence of checks on the good will and disinterested posture of the family member, or less frequently the friend, who assumes this role.

A commonly used, nonjudicial mechanism for allowing someone else to make decisions about an incompetent’s finances is the practice of federal and state agencies making disability payments to someone who may be characterized as a representative payee. After a physician determines that a patient is not capable of managing finances as a result of physical or mental illness, or alcohol and drug abuse, the recipient identifies a person to whom payment will be made. That individual then parcels out the money to the recipient. The system seems to work reasonably well.

a. Durable power of attorney. Mechanisms exist in most states for a competent person to select a substitute decision-maker for a projected time of future incapacity. Documents embodying these choices are called durable powers of attorney. Unlike ordinary powers of attorney, they continue to be in effect, or first come into effect, when the person becomes incompetent. The decision-maker selected then has legal sanction, without the necessity of a court proceeding, for making decisions about the issues indicated in the document. Among the advantages of this approach is that it allows a person to discuss her preferences in advance with the substitute decision-maker and to select a person whom she believes will act according to her wishes.

b. Advance directives. Because the status of durable powers of attorney with regard to health care decisions is unclear in many jurisdictions, states increasingly have adopted advance directive laws. These statutes typically permit the designation of a proxy decision-maker specifically for medical treatment purposes and may also allow the person to identify limits on the proxy’s powers (e.g., “under no circumstances do I want CPR”). State laws are often specific about forms to be used and information that must be contained. Failure to abide by the requirements may invalidate the proxy designation. Typically, the advance directive is invoked when a physician determines that the patient has lost capacity, but even in that circumstance the patient’s objection to a course of treatment cannot be overridden without a judicial determination of incompetence. Minnesota was the first state to experiment with an advance directive statute specifically addressed to psychiatric treatment. Roughly one-third of the states now have such laws. The relationship among the expressed desires of a patient, as embodied in an advance directive, and the laws governing involuntary hospitalization and treatment remains unclear. In the leading case to date, a federal circuit court upheld the priority of a patient’s wishes expressed in an advance directive over a state’s procedure for treating patients involuntarily (Hargrave v. Vermont). Whether this decision will apply to other jurisdictions, and what its implications might be for the future use of advance directives, is unclear.

Since the early 1990s, the federal Patient Self-Determination Act (often referred to by its initials, PSDA) has required health care entities that receive federal funds (including Medicare and Medicaid) to inquire of all patients on admission whether they have an advance directive, and if
they do not, to inform them of the availability of such mechanisms under the applicable state law. Although intended to increase the use of advance directives, it remains unclear to what extent the PSDA has had the desired effect.

It was once common for clinical staff, especially physicians, to become de facto decision-makers for incompetent patients, particularly with regard to medical or psychiatric treatment. If incompetent patients required treatment and no family members were available, the physicians themselves authorized the treatment and administered it. With greater attention to patients’ rights, this practice had diminished, but it still exists in many places. In facilities with a large number of incompetent patients, such as state hospitals, chronic care facilities, or nursing homes, means and resources may simply not be available to seek appointment of a guardian for every treatment decision. When not precluded by state law, physicians may therefore take it on themselves to make these choices.