Learning Objectives
By the end of this section, you will be able to:
- Define the role of a guardian/conservator
- Outline the process for appointing a guardian/conservator
- Discuss ethical concerns in appointment of a guardian/conservator
Guardianship and conservatorship processes will vary in the United States by individual states.
A guardianship is created through the courts to manage financial, legal, and personal matters for a person who lacks capacity to do so. A conservatorship is similar but can be created due to the absence of responsible parties, such as for children with absent parents, and may focus more specifically on financial aspects. Both guardianship and conservatorship are court-appointed, legally protected designations and both have ethical implications in nursing practice. Conservators are paid to serve, and these funds come from the person’s estate, or the court may designate the payment arrangement. Conservators can act as a neutral party if there are conflicts in the person’s family about the person’s care. Conservatorship is a matter of public record, which may raise privacy concerns (Family Caregiver Alliance, 2012).
Defining Guardianship and Conservatorship in Relation to Mental Health
The guardian or conservator is the court-appointed agent to represent the declared-incompetent person as decision-maker, on a temporary or permanent basis, in legal, financial, and/or personal matters. Barton et al. (2014) acknowledge that definitions vary across American states, though a common definition of competency in guardian and conservator cases is the ability for self-care, with decision-making and communication as essential components. The person still has the right to participate in their own care to the extent of their ability (Barton et al., 2014). In some states, a health-care proxy may take precedent over an appointed guardian by state law.
Suitable Guardians
The guardian or conservator must be someone willing to take the responsibility as an officer of the court. The guardian or conservator should be someone the person chooses and often is a family member. If the court finds the guardian or conservator unsuitable, another relative of the person or even an attorney may be court-appointed. Recognizing variations by state, guardians may be required to submit ongoing reports to the court on the person’s status. More than one guardian may be appointed and some guardianships and conservatorships may be temporary or limited in scope (Barton et al., 2014).
Alternatives to Guardianship
As discussed, psychiatric advance directives can be a method to designate a personal representative while the person is capable of making decisions, prior to an emergency need. Short-term guardianships (for such time as the parent or responsible party is absent) and supported decision-making agreements (authorizing a trusted other) can be created with legal advice within each state.
Appointing a Guardian or Conservator
Courts must be petitioned for guardianship or conservatorship, and each state has established procedures for seeking these designations. According to the U.S. Department of Justice, most states allow “any person” to file a court petition for guardianship. Persons who file may be friends or family members, health-care providers, or members of the community, including organizations and agencies of the government. In general, after the individual or agency files a petition, the person in question receives notification and attends a court hearing. An investigation may proceed the hearing, and the entire process can take weeks to months (Barton et al., 2014).
Ethical Concerns
Actions that are legally allowed may still raise ethical concerns. Guardianships and conservatorships are forms of surrogate decision-making, wherein the person being represented is removed from personal and material decisions and loses control in the process. Another concern involves how competence and capacity, which both mean “ability,” are evaluated and whether the status can change. Competency is usually considered to be a legal term, while capacity is regarded as being a medical term (Libby et al., 2023). A competency hearing in court includes expert testimony from mental health professionals and statements from the person and significant others. The witnesses may offer evidence of how the person made decisions that had harmful effect. The court may question the person to determine understanding of the information presented and may be asked to verbalize the significance of the situation. So even though there are objective criteria for a legal determination of incompetence, there still exists a subjective component to it, which creates an ethical challenge.
In addition, conflicts of interest may exist between clients and their potential guardians; the court is responsible for determining potential sources of conflict. Conflicts may arise over custody of children, inheritance awards, property ownership, or residence. Cultural values or religious beliefs likewise could pose conflicts between persons and those appointed to be their guardians or conservators. There is also no central tool to evaluate the process.
Nursing Role
In care of clients under guardianship or conservatorship, nurses may feel a conflict between two essential concepts in client care: autonomy and safety. While respecting the need for protection for vulnerable clients, nurses may struggle with the loss of aspects of the person’s self-determination. This may be especially so when clients show improvement in treatment.
Catlin et al. (2021) found clinicians’ (including nurses) experience with guardianships was variable, though seen as generally positive. Overall, the study revealed that clinicians view guardianship as appropriate to resolve issues for persons unable to make their own decisions. Nurses reportedly feel unprepared to address issues of guardians’ neglect or mismanagement of clients’ affairs and such distress could even contribute to burnout in the profession (Catlin et al., 2021). Nurses are encouraged to connect with mentors and colleagues for support and to stay informed in these aspects of client care.
Clinical Judgment Measurement Model
Recognize Cues: What Findings Require Action?
What does the nurse notice about the client and family and what seems to matter most?
The nurse collects the data that the family member expresses guilt about seeking guardianship for their loved one. The nurse invites the family member to talk and share their concerns. The nurse processes with the family member what options for the client’s safety had been available and what may have been the outcome if guardianship were not established. The nurse takes the action of determining what information about guardianship the family requires and what supportive resources can be obtained.