to share in the estate of the allegedly incompetent person--for example, children and siblings--are given no- tice of the petition and hearing date. The purpose of the hearing is, first, to determine if the individual is legally incompetent or incapacitated and therefore unable to make decisions concerning himself, his property, or his finances and, second, to consider resources available in the community to act as overseer or guardian(l).

The judge who hears the case de-' cides incompetency based on the state's specific criteria. The standard most states use to substantiate incom- petence is that the individual "lacks the understanding or capacity to make or communicate responsible decisions regarding his/her person or property"(2).

FinallY, if the person is declared in- competent, the judge assigns a public or private guardian to oversee the person and/or his estate . The guardian may be a family member, friend, attorney, government agency, or a professional specializing in this work. Guardianship can be either par- tial, which allows the incompetent person to make limited decisions, or plenary, which gives the guardian total legal authority over the incompetent person's estate and person(3). When plenary guardianship is assigned, the incapacitated person no longer has the fights of an adult.

The implications here are vast. De- pending on the state, a person de- clared incompetent is not permitted to vote, drive a car, manage his fi- nances or properties, or make deci- sions regarding living arrangements, inclnding nursing home placement. In some states, guardians assume the in- capacitated person's right to make all health care decisions, including com- mitment to a psychiatric facility and consent to participate in experimental medical research (2).

What the Records Reveal

We examined a sample of guardianship hearing records in one jurisdiction to collect information about the people alleged incapacitat- ed, the process for establishing incom- petency, and the role of nurses in guardianship cases.

From 270 cases processed in one city's Orphan Court during 1987, we randomly selected incompetency hearing records for 49 people aged 60 and older. We extracted and compiled information about the hearings, plus the demographics, legal representa- tion, and medical examination of the people declared incompetent.

The people alleged incompetent were between 60 and 100 years, with a mean age of 81. Most (71%) were fe- male. At the time of the hearing, 18 percent were living at home alone and 10 percent with family; 35 percent were in a nursing home and 16 per- cent in a hospital. For 21 percent, the residence was not indicated.

In accordance with current state regulations, the court notified all of the allegedly incompetent persons of the petition and the impending pro- ceedings. But only 5 of the 49 (10%) people at tended the proceedings. What happened to the other 90 per- cent? Did they misunderstand the ramifications of the petition? Were they unaware of their constitutional rights?

About one in sixelders were noted to be dehydrated, septic, or in conges- tive heart failure. (See "Problems of Incompetent Elders," on page 13.) Did these problems leave them too acutely confused or delirious to un- derstand the meaning of the notice? More than a third of the alleged in- competent persons had sensory im- pairments that may not have been taken into consideration when the hearing notice was given. Those diag- nosed as mute, aphasic, visually or hearing impaired may not have had the capacity to comprehend the hear- ing notice or communica te their wishes.

Safeguarding the legal rights of those alleged incompetent, unfortu- nately, has not been a priority in many states. According to an Associated Press study, only 14 states require that people be informed of their rights and potential loss of freedom if deemed incompetent(4). Considering that over half of our sample resided in nursing homes or were hospitalized, nurses should view a guardianship pe- tition from the perspective of in- formed consent. If you do not feel comfortable assisting the allegedly in-

competent person to understand his fights, contact the social worker or the institution's attorne): And, try to en- sure that the facility has policies and procedures that provide clear guide- lines on how to respond when a pa- tient is petitioned for a guardianship hearing.

The court records examined in our study gave no indication that the al- leged incompetent person had an ad- vocate. Many states are now using "neutral parties" for the precourt in- terviews. California, for example, uses court investigators, many of whom are nurses expert in interviewing and ad- vocating for older persons. The neu- tral par ty informs the a l legedly incompetent person of his legal right to appear at the hearing, to object to the proposed proceeding, to request an alternative guardian, to be repre- sented by an attorney, and to request that the proceeding be tried by a ju- ry(5). The Associated Press has rec- ommended that all states have such a system to promote input from persons alleged incompetent and preserve their basic rights as citizens(4).

The presence-or absence--of the allegedly incompetent person in court is another area of concern that needs to be addressed. In our study, the ab- sence of the incompetent person was often justified by a physician's state- ment that it would be detrimental to the cider's health to participate in the hearing. The records reveal no in- stance where the judge challenged the physician's statement.

The current trend to encourage the incompetent person to be present in the courtroom is r~fiected in the As- sociate Press's finding that 51 percent of those alleged incompetent were present at the hearing(4). The low percentage of incompetent persons

CATHERINE STEVENSON, RN, MSN, is a geriatric nurse practitioner at the Philadelphia Veteran's Administration Medical Center. ELIZABETH CAPEZLrl-I, RN-C, MSN, is a clinical lecturer in the School of Nursing at the University of Pennsylvania and a geriatric nurse practitioner with the School of Osteo- pathic Medicine at the University of Medicine and Dentistry of New Jersey in Stratford, New Jersey The authors acknowledge the assistance of Mathy Mezey, RN, EdD, FAAN; Lois Evans, RN, DNSc, FAAN; Barbara Brush, RN, MSN; Nancy Morrow, MSW; and Beryl Ben- son, Esq, in the preparation of this article.

GeriatficNur~ing JanuaD'/February 1991 11

Guardianship: What the laws say in aH 50 states

Your rights if someone petitions a court to appoint a guardian for you depend on the laws oF the state where you live. In the table at right, the first three columns show your legal rights at judicial hearings in the 50 states and the District of Columbia. The last two columns list criteria the court may use in decid ing whether you are incompetent; state laws leave the definition of "advanced age" up to judges. Indiana's provisions took effect July 1989. Michigan's rules became law April 1989.

K E Y

The low explicitly states that the sub- ject of the hearing has a right to hire legal counsel.

2 The subject has the right to court- appointed counsel-an attorney or a guardian ad liteum--if unrepre- sented.

3 The subject is required to attend the hearing unless he or she formally waives this right or the court receives medical evidence or testimony that attendance would be impossible or harmful to the person.

/ • Medical evidence must be presented �9 to the court for o finding of incompe-

tency.

Advanced age or senility is o ground for incompetency, though it alone is insufficient. The condition must have led to an inability to manage one's personal affairs or properly.

~ATIE 1 2 3 4 5

Alabama c 0 O

Alaska 0 G O

Arizona o O O

Arkansas 0 0

California o o o O

Cok:rado c o o

Connectict~ o o o o

Delaware O O

DistfictofColumbla c. O O C

Florida o o o o

Georcjia b o e c o

Hawaii o o c

Idaho o o o o

Illinois o o o

Indiana o o o

Iowa 0 0

Kansas C o

Kentucky o o O C

[ouisiana o O

Maine o o

Maryland o o o o

Mas.sachuseffs O

Michigan o ~ c

Minnesola o o o

Mississippi O 0

Missouri o o

Montana t) r 0

Nebraska o o o

Nevada 0 0 c o

New Hampshire 0 0 0

Ne, v Jersey o o o

Ne,w Mexlco O o

New York o o e

North Carolina o o �9 o

North Dakota ~ O O o

Ohio ~' C o

Oklahoma o o o

Or eRa n o o

Penns,/k, ania o o

Rhode Island o

South Corolina O o o O

South Dakota O

Tennessee O O O

Texas o 0 o

Utah o o o

Vermont O O

Vir,qlnia o O

Washinqlon o o o

West~r,qinla ,0 O 0

Wisconsin O O o

Wyominq 0 O

Re ~rinled from MONEY Magazine, March 1989, by special permlsslon. �9 The Time Inc. Magazine Company.

present at their own hearings in our study reflects two critical elements missing in the Pennsylvania state laws: the lack of designated advocates and the lack of mandatory attorney repre- sentation.

The right to be represented by counsel is a very important aspect in the advocacy effort for alleged incom- petent persons. Only 2 percent of peo- ple in our sample had a t to rney representation as compared to 36 per- cent in the Associated Press study(4). It is, indeed, a strange contradiction that people alleged to be incompetent can lose virtually all of their rights as adult citizens and yet are not ensured legal representation. Only 28 states mandate legal representat ion for guardianship proceedings; 12 percent of the states provide for optional rep- resentation(4).

An individual, delirious because of an acute illness such as an infection, can possibly lose all of his rights as a citizen despite the fact that after the delirium clears he may be mentally competent. An inappropriate or in- complete assessment by a health provider or an elder's misunderstand- ing of the petition and lack of repre- sentation can set the stage for tragedy. A nurse acting as an advocate for the rights of an elder al/eged to be incom- petent could potentially protect his civil liberties.

In most states, physician assess- ment is a crucial step in a judge's de- termination of incompetenc],: In our study, we found that physicians were present at the hearing in 76 percent of the cases. In the other 14 percent of the cases, a physician's written docu- mentation was ~dmitted as evidence of the elder's incompetence.

These figures are actually quite en- couraging when compared to the As- sociated Press figures indicating that 34 percent of the 2,200 court files re- viewed contained no medical evi- dence supporting incompetency or incapacity(4). Physician testimony, as recorded in the court files of our study, however, lacked substantial evi- dence for proving incompetence in many cases.

Physicians' statements typically contained a brief outline of the al- leged incompetent's disabilities with references to underlying medical or

12 GeriatficNursing Januat)'/February1991

FF, O-~LEI,tS OF INCO,",~,F~EI'~tl " ELDERS

ACUTE CCN.FU$;O,~.~ DIAGNOSE5 "I'RIGG ERS sEr.,~SO ~.Y DEEICITS

organic brain syndrome 20%

dementia 16% Alzhelmer's

disease 14% senile dementia 14% CVA 14% senility 10% psychosis 10% paranoid ideation 8% multi.lnfarct

dementia 6% Parklnson's disease 4% depression 4% schizophrenla 2%

acute renal failure 10% dehydration 8% congestive heart

foilure 6% hlp fi'acture 6% malnutrition 4% deI~rium 2% anemia 2% anorexia 2% cardiac arrest 2% gangrenous ulcer 2% organ failure 2% prostatltis 2% respiratory failure 2% sepsis 2% syphilis 2%

communicolion difficulty 16%

expressive aphasia 10%

mute 6% blind 4% dee! 2%

When elders declared incompetent have no m~, jfic diagnoses fike "organic brain syndrome," as occurred with 20% in Ibis study, or are sim~ labeled senile, as happened ~ 10%, it is hightening. Also Iroubling is Ihe high percentage of elders documented to ~ e problems asso, rJal~ ~ acute confusion m reversible dementia. psychiatric conditions. Medical diag- noses-such as stroke'and dementia, plus vague references to physical ill- ness, senility, or old age--were used in the records without either delineating how such illness had been confirmed or how the illness affected the individ- ual's mental abilities. Despite the fact that competence often is a question of mental acuity, systematic psychiatric evaluations and mental statns exams were rare. The most frequently cited phrase was "disoriented x 3," found in 14 percent of the sample. Such well- established mental status tests as the Folstein Mini-Mental and the Geri- atric Depression Scale, used in many dementia evaluation programs for screening, logically would contribute to guardianship assessments(5-7).

Moreover, almost half of the per- sons in the sample had illnesses that are associated with acute confusion or reversible dementia. Further, sev- eral in the sample had documented sensory deficits that can cause or con- tribute to confusion. Considering the magnitude of the restrictions placed on persons deemed incompetent, any lack of systematic assessment and treatment of confusion in older per- sons before an incompetency hearing is unacceptable.

A factor contributing to the scanty mental and physical evaluations may be the absence of specific require- ments in the qualifications of the ex- amining physician. The majority of physicians were trained in family

practice or internal medicine. Only one had documented specialty train- ing in geriatrics, and no physician was questioned about his/her qualifica- tions as an expert in evaluating and treating older individuals.

To reduce the risk of incompletely or inaccurately evaluating the compe- tence of an elder, the best approach is to use a multidimensional geriatric evaluation. Combined with a thor- ough medical and psychiatric exami- nation, multidimensional assessment provides information as to the older person's ability to perform basic and instrumental activities of daily living. Functional limitations are beginning to be accepted in legal definitions of incompetency or incapacity(8).

In the records we examined, few references were made to function. Records of nursing home residents and hospital patients are known to contain nurses' notes that document a person's functional status. Yet no doc- umentation from or testimony by a nurse was used as evidence in the competency hearings. Instead, only vague statements such as "needs cus- todial care" and "unable to communi- cate" appeared in the records.

Reform Still Needed

When the House Select Commit- tee on Aging examined this issue in 1987, Committee Chairman Claude Pepper lamented, "You would think, given the sever i ty of res t r ic t ion

guardianship imposes upon one's civil rights, that great care would be taken by the states and the federal govern- ment to safeguard against abuse and exploitation. Sadly, the findings of over 10 years of research by this sub- committee reveal that guardianship, the legal mechanism for providing in- competent elderly and infirm with needed financial and personal assis- tance, fails miserably in accomplishing that object ive"(9) . Our findings, which substantiate the inadequacy of assessment in establishing incompe- tency and the implications of altered health status on the ability to compre- hend one's civil rights, underscore the need for guardianship-law reform.

The elders involved hi guardianship proceedings are frequently the most frail and vulnerable of the older popu- lation. While protection of constitution- al rights for frail o lder adults is everyone's ethical responsibility, it is of special concern to nurses who provide the bulk of care. Nurses have a crucial role in correcting the deficiencies by ad- vocating for the alleged incompetent persons, encouraging them to seek le- gal counsel, and insisting on compre- hensive medical, psychiatric, functional, and social evaluation performed by qualified geriatric specialists.

I~E I"E P, ENC t-2S

1. Peters, R., and others. Guardianship of the elderly in Tallahassee, Florida.Gerontologist 25:532-538, Oct. 1985.

2. Rosoff, A. J., and Gottlieb, G. k Preserving per- sonal autonomy for the elderly. Competency, guardianship, and Alzheimer's disease. J.Leg.MecL 8:147, Mar. 19S7.

3. Weiler, K., and Buekwalter, K. C. Care of the de- mented client.J.GerontotNurs. 14:26--31, Jul. 19S8.

4. Bayles, E, and McCartgey, S. Guardianship Project Declared "Legally Dead" By A Troubled Sys- tem.(Associated Press Special Report), Boston, MA, Associated Press, 1987, pp. 1-8.

5. Quinn, hi. J. Probate Conservatorships and Guardian.ihips:Assessment and Curative Aspects. Paper presented at the 40th Scientific Meeting of the Gerontological Society of America. lleld in Washington, DC, No~; 21,1957.

6. Folstein, M. E, and others. "Mini-mental state". A practical method for grading the cognitive state of pat ients for the clinician. J.Psychiatr.Res. 12:189-198, Nov 1975.

7. Yesavage, J. A., and others. Development and vali- dation of a geriatric depression screening scale: a preliminary report. J.Psychiatr.Res. 17:37--49, 1982_ -1983.

8. Nolan, B. Functional evaluation of the elderly in guardianship proceedings. Law Med. llealth Care 12".210-218, Oct. 1984.

9. U.S. House of Representatives, Select Committee on Aging.Older Americans Report:Abuses in Guardianship System Probed.Washington, DC, U. S. Government Printing Office, Oct. 2,1987, p. 5.

GeriatrieNursing January/February 1991 13