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February 12, 2007

NCEA

The Source of Information and Assistance on Elder Abuse


Clearinghouse on Abuse and Neglect of the Elderly (CANE)
Selected Annotated Bibliography:


Guardianship and other Legal Protections of Vulnerable Adults

1997

54. P5903-20
Atkin, W.
Adult Guardianship Reforms - Reflections on the New Zealand Model
International Journal of Law and Psychiatry; Vol. 20 (1), 77-96; 1997.
Journal article (scholarship)
In this article, the author presents a discussion of the Protection of Personal and Property Rights Act 1988, which is the "principal statutory vehicle providing for adult guardianship" in New Zealand. The test for the court to appoint a welfare guardian, the most extreme intervention, is considered. The article also describes property orders, including the appointment of a manager of property, and also describes the responsibilities and limitations of such an arrangement. Practical and ethical issues encountered as the welfare guardian or property manager attempts to fulfill his or her role are illustrated through case scenarios.

55. P5904-11
Blankman, K.
Guardianship Models in the Netherlands and Western Europe
International Journal of Law and Psychiatry; Vol. 20 (1), 47-57; 1997.
Journal article (scholarship)
The recent development of adult guardianship models in western Europe, and in the Netherlands in particular, is the subject of this article. The author begins with a discussion of the definition of an incapacitated adult, including the distinction between an "incapacitated adult" (one incapable of making and or communicating decisions, and therefore needs representation) and a "vulnerable adult" (one in need of protection). A history of protections (including the curatele, protective trust, mentorship, the bill concerning agreement on medical treatment or WGBO) is presented, along with a description of the extent of substitute decision making. The evolution reflects a movement towards the protection of patient's rights, and also reflects the need for customization in providing protection and representation. It is noted that the appointment of a guardian or representative does not automatically imply the adult's loss of capacity.

56. P5959-60
Johns, A. (Bowers, V., ed.)
Guardianship Folly: The Misgovernment of Parens Patriae and the Forecast of Its Crumbling Linkage to Unprotected Older Americans in the Twenty-First Century -- A March of Folly? Or Just a Mask of Virtual Realtity?
Stetson Law Review; Vol. 27 (1); 1997.
Journal article (legal scholarship)
This article presents an overview of efforts to effect adult guardianship reform throughout the past several decades. The opening section presents a summary of the historical application of the guardianship process from ancient civilizations through the present. The following section describes research initiatives and changes in guardianship law (such as the 1961 Mentally Disabled and the Law Study, the 1982 Uniform Guardianship and Protective Proceedings Act, The Associated Press Expose of 1987, etc.) during the latter half of the 20th century. The author concludes with the observation that little has improved in the guardianship system, and proposes changes to the adjudication process that would accommodate differences stemming from the nature of individual petitions (those based upon advocacy versus those more adversarial in nature). Other proposed recommendations addressing guardianship monitoring and guardianship programs are included.

57. P5972-10
Reynolds, S.
Criteria for Placing Older Adults in Public Conservatorship: Age as Proxy for Need
The Gerontologist; Vol. 37 (4), 518-526; 1997.
Journal article (research)
This study considers whether or not the process of determining the need for public conservatorship in California is age-blind. Data was gathered from 589 records of adult public conservatees being served under the Los Angeles Office of Public Guardianship (LAOPG). While the amount of time spent evaluating adults for conservatorship did not appear associated with age, increasing age did appear associated with assignment into probate conservatorship. The author suggests that the vagueness of the term "unable to manage," part of the criteria for assignment, contributes to this phenomenon.

58. P5971-12
Reynolds, S.
Protected or Neglected? An Examination of Negative Versus Compassionate Ageism in Public Conservatorship
Research on Aging; Vol. 19 (1), 3-25; March 1997.
Journal article (research)
This study was designed to determine whether older adults under conservatorship (or guardianship) were likely to experience "negative ageism." Negative ageism was defined by four measures: to be served under powers to be placed in locked facilities; to be served under powers that authorize treatment with psychotropic medication; to be placed in locked facilities; and to be treated with psychotropic medications. Data was collected from 2,118 court records of adults being served under conservatorship by the Los Angeles County Office of Public Guardians (LAOPG) in July 1993. Results indicate that older individuals placed under guardianship were less likely to be served under powers to be placed in locked facilities and to be treated with psychotropic medication than younger wards. Older individuals were also less likely to be placed in locked facilities than in nursing homes or independent living situations, and they were less likely to be treated with psychotropic medications than younger wards. The findings suggest that compassionate ageism may be operant.

59. P5899-27
Tomossy, G. & Weisstub, D.
The Reform of Adult Guardianship Laws: The Case of Non-Therapeutic Experimentation
International Journal of Law and Psychiatry; Vol. 20 (1), 113-139; 1997.
This article considers moral, ethical and legal issues related to non-therapeutic research with cognitively impaired adults, and proposes reforms to existing guardianship laws in Canada. The principles of informed consent are ineffective when the potential participant (due to dementia or other disability) lacks the capacity to understand the potential risks or consequences of the experiment. Although offering no protection for this vulnerable population could lead to abuse and exploitation, exclusively prohibiting participation is considered overly paternalistic. In addition, excluding incapacitated adult wards from participation in research could prove neglectful to the needs specific to this population. The use of research directives, a specific type of advance directive, is preferable to that of substitute decision-making. The concept of a guardian for research is also discussed.

1996

60. N4570-3
English, D. & Wolff, K.
Survey Results: Use of Durable Powers
Probate and Property; p33-p35; January/February 1996.
Journal article (research)
This article reports the results of a survey of lawyers regarding the misuse of Durable Powers of Attorney (DPOA). Of the 854 respondents, nearly two-thirds (62 percent) indicated awareness of misuse occurring in one percent or fewer known cases, and 91 percent indicated that it had occurred in five percent or fewer cases. The same survey indicated that approximately half of the respondents were aware of abuses through guardianships in one percent or fewer cases, and 85percent were aware of abuses in five percent or fewer cases. Abuses through DPOA occur approximately at the same rate whether the agent is court appointed or not. The researchers recommend that the public, and specifically potential principals, be educated regarding the risks of broadly granting powers.

61. P5962-19
Gottlich, V.
The Role of the Attorney for the Defendant in Adult Guardianship Cases: An Advocate's Perspective
The Maryland Journal of Contemporary Legal Issues; Vol. 7; 1995/1996.
The Subcommittee for the Reform of the Maryland Guardianship statute recommended the clarification of the role of the attorney in such proceedings. As quoted from the introduction, "...the Task Force suggested that the attorney for the allegedly incompetent person serve as a zealous advocate for the client, not as an investigator of the necessity of the guardianship for the court..." This article addresses the role of attorney for the defendant from an advocate's perspective. Among the topics discussed are the apparent conflict between Maryland Rules of Civil Procedure and the current guardianship statute, relevant case law from other states, and practical considerations.

62. K4328-5
Hankin, M.
Making Perpetrators Pay: Collecting Damages for Elder Abuse, Neglect and Exploitation
Aging Magazine; No. 367, 66-70; 1996.
Magazine article (scholarship)
This article discusses various aspects of a California law that makes it easier for victims of financial abuse to recover damages and also makes it worthwhile for lawyers to litigate such cases. Also outlined is a second law that poses stricter criteria for declaring an elder incompetent.

63. P5961-35
Hurme, S.
Current Trends in Guardianship Reform
The Maryland Journal of Contemporary Legal Issues; Vol. 7; 1995/1996.
Journal article (legal scholarship)
This article reports upon trends in guardianship reform reflected through legislative action between 1991 and 1995 in the states of West Virginia, Tennessee, Texas, South Dakota, Delaware, New York, and Rhode Island. Themes that emerged include enhanced due process protections for the allegedly incapacitated; strengthened evaluation and hearing procedures; efforts to evaluate less restrictive alternatives; "tailored guardianship," based upon the individuals functional abilities and limitations; and monitoring of the guardianship after it has been instituted.

64. P5877-12
Hwang, M.
Durable Power of Attorney: Financial Planning Tool or License to Steal?
Journal of Long-Term Home Health Care; Vol. 15 (2), 13-22; Spring 1996.
Journal article (scholarship)
The author describes the "invisible epidemic" of abuse of the durable power of attorney (DPOA), which is rarely successfully prosecuted, due to difficulty investigating and lack of evidence. When an agent uses a DPOA to financially exploit an individual, it becomes difficult to intervene because the individual being victimized often lacks the awareness that he or she is being financially abused, and also because he or she may not have the legal capacity to terminate the agreement. Also, there is no regulation of the DPOA, and the agent (or attorney-in-fact) is therefore unmonitored. A detailed case study is provided to illustrate the problems inherent in the DPOA. The author provides a list of warning signs and guidelines that long-term care professionals should be aware of when dealing with elderly clients.

65. P5963-61
Johns, A.
Ten Years After: Where is the Constitutional Crisis with Procedural Safeguards and Due Process in Guardianship Adjudication?
Elder Law Journal; Vol. 7; 1996.
Journal article (legal scholarship)
As quoted from the article, the author "...examines the development of guardianship over time...He then examines the court cases that Mark Andrews relied upon in his note, finding that they do not support Andrew's constitutional crisis conclusion. Mr. Johns then reviews the remarkable progress that various states have made in reforming their guardianship laws to ensure constitutional protections. To show further support for the degree and breadth of protection that states currently provide in their guardianship laws, he details the constitutional protections offered by the states at each significant stage of the guardianship process. Mr. Johns also provides intricately detailed charts that summarize each state's statute regarding these protections. Finally, the author concludes that, although there are some important issues left to address in the area of guardianship, the resolution of a constitutional crisis is not one of those issues..."

66. P5960-38
O'Sullivan, J. & Hoffmann, D.
The Guardianship Puzzle: Whatever Happened to Due Process?
The Maryland Journal of Contemporary Legal Issues; Vol. 7; 1995/1996.
Journal article (legal scholarship)
This article highlights the discrepancies between the due process defined by Maryland guardianship statutes and the actual due process applied in most guardianship proceedings throughout the state. The results of two surveys (one involving a review of court files, and the other assessing judicial attitudes) are presented and discussed. Recommendations include the need for clarification of the attorney's role in guardianship proceedings, increased training and education for court personnel, and legislative reform.

67. P5966-6
Schmidt, W.
Assessing the Guardianship Reform of Limited Guardianship: Tailoring Guardianship, or Expanding Inappropriate Guardianships?
Journal of Ethics, Law, and Aging; Vol. 2 (1), 5-14; 1996.
Journal article (scholarship)
This article presents an overview of limited guardianship, which is less than plenary (or full) guardianship, and is tailored to the particular needs of the ward in order to preserve as much autonomy as possible. However, critics indicate that it is impractical, and some suggest that "...limited guardianship makes it easier for some adjudication of incompetence to occur in cases where full adjudications would not otherwise have occurred because incapacity was not extensive enough. This potentially expands the risks of inappropriate adjudications and of exposure to a guardianship system that seems to serve third-party interest rather than the ward's interest..." Existing research on the topic is reviewed.

1995

68. I3741-286
Schmidt, W., ed.
Guardianship: The Court of Last Resort for the Elderly and Disabled
Carolina Academic Press, Durham, North Carolina;1995.
Book
This book is intended to inform health, social service, legal professionals, students, and lay people about findings and implications from over a decade of national and state research on guardianship and protective services for the elderly and disabled. To obtain a copy contact Carolina Academic Press, 700 Kent Street, Durham, NC 27701, telephone (919) 489-7486, or order online at http://www.cap-press.com/ .)

1994

69. A23-169
Lisi, L., Burns, A. & Lussenden, K. for The Center for Social Gerontology (TCSG)
National Study of Guardianship Systems: Findings and Recommendations
The Center for Social Gerontology, Ann Arbor, MI; November, 1994.
Agency report
This project examined current guardianship systems in order to promote policies and practices that will enable older people requiring surrogate services to have their needs adequately met in the least restrictive manner. Five areas of research are outlined in the report and address the following questions: who is affected by the guardianship; what factors trigger the request for surrogate services; what alternatives are available to guardianship; what is the process of imposing guardianships; and what is the impact of imposing guardianship upon individuals. Data was collected from a convenience sample of 30 courts in the following ten states: California, Colorado, Florida, Indiana, Kansas, Michigan, Minnesota, New York, Oregon, and Washington. Data sources included observations of the guardianship hearings, abstraction of file data, and interviews with petitioners. Among the findings, the majority of the respondents were typically White, unmarried females. Descriptive analysis indicates that most respondents were in need of intervention due to functional limitations and cognitive impairment, however it is unclear from the data whether or not guardianship was the least restrictive intervention. Approximately three-quarters of the petitioners were family members (most commonly children) or friends of the respondent. An abrupt change in the respondent's living circumstances was most often the trigger for the petition, and placement issues were usually a factor. The respondent was present in only 28 percent of the hearings, which lasted less than 15 minutes in 83 percent of the cases analyzed. (Note: To obtain this report, contact The Center for Social Gerontology (TCSG), 2307 Shelby Avenue, Ann Arbor, MI 48103, telephone 734 665-1126 or visit the website at www.tcsg.org . Price: $30.00)

70. I3688-14
Wolf, R. & Nerenberg, L., for the National Committee for the Prevention of Elder Abuse, and the San Francisco Consortium for Elder Abuse Prevention
Guardianship: A Synthesis of Information and Products from Grants Funded Under Title IV of the Older Americans Act
Administration on Aging; Washington, D.C.; December 1994.
Literature review
The National Committee for the Prevention of Elder Abuse and the San Francisco Consortium for Elder Abuse Prevention collaborated on a project to synthesize and disseminate the results of research supported by the Administration on Aging Title IV grants. This publication is one of four Elder Abuse Briefs that resulted from the research. The article discusses the legal definitions of guardianship, including public guardianship, and summarizes research and recommendations on various systems. Based upon the literature review, recommendations were made to develop and publicize alternative service programs, to improve assessments of proposed ward's functional abilities and disabilities, to increase representation of the proposed ward throughout the hearing process, to develop a bench manual on guardianship for judges, and to increase the use of limited guardianship.

1993

71. H3377-7
Keith, P. & Wacker, R.
Implementation of Recommended Guardianship Practices and Outcomes of Hearings for Older Persons
The Gerontologist; Vol 33 (1), 81-87; 1993.
Journal article (research)
This research investigated whether selected procedural safeguards (such as specific statements of incapacity, the proposed ward's presence at the hearing, legal representation, and findings of the court visitor or investigator) were related to the actual decisions about guardianship for older persons. Among the findings, the presence of the proposed ward did not appear related to the actual guardianship decision; proposed wards who had retained their own counsel were more likely to receive limited guardianship or have the petition denied; and wards with undefined court-appointed counsel were more likely to receive full guardianships than those without representation.

72. H3451-9
Patterson, S., Baker, M. & Maeck, J.
Durable Powers of Attorney: Issues of Gender and Health Care Decision-
Making

Journal of Gerontological Social Work; Vol 21, (1/2), 161-177; 1993.
Journal article (research)
In this research, a convenience sample of 53 senior citizens reported preferences and opinions about the use of durable powers of attorney for health care decisions. Of those interviewed, only 23 percent had executed durable powers of attorney for health care decisions, despite the importance participants assigned to planning for health care. Fewer women rated their health planning favorably. The authors suggest that gender differences observed (though not statistically significant) may be related, in part, to marital status differences, observing that there were higher rates of unmarried and widowed elderly women than men in the sample.

1992

73. I3726-149
Stiegel, L. et al., for the Commission on Legal Problems of the Elderly and Commission on Mental and Physical Disability Law of the American Bar Association
Alternatives to Guardianship: Development of A Training Module for Professionals Working With the Elderly - Final Report
American Bar Association, Washington D.C.; March 31, 1992.
Agency report
As quoted from the introduction, this report documents the two-year process of developing "... a multidisciplinary training program on alternatives to guardianship for professionals working with the elderly and persons with disabilities and to implement those programs in nine states..." The methodology addressed the following objectives: the identification of training module subjects (which ultimately included guardianship, an overview of alternatives to guardianship, planning for incapacity, and responding to incapacity); the identification of nine sites for testing and implementation of the training (Kansas, Hawaii, Florida, West Virginia, Massachusetts, North Dakota, Georgia, Arkansas, and Washington); the planning and conducting of training events; the evaluation of the training; and the dissemination of the training materials.

1991

74. H3354-9
Bulcroft, K., Kielkopf, M. & Tripp, K.
Elderly Wards and Their Legal Guardians: Analysis of County Probate Records in Ohio and Washington
The Gerontologist; Vol 31 (2), 156-164; 1991.
Journal article (research)
This study examined data from county probate records of 63 guardianship cases in Ohio and Washington to determine the fairness of the adjudication process in assigning legal guardianship to alleged incompetent elders. Profiles of the elderly wards, their guardians and their relationships are described. The findings suggest that the courts favored family members as surrogates and rarely challenged the elders' decision-making abilities, and that the primary goal of most guardianship cases is to preserve the estate of the elder.

75. F3146-4
Stevenson, C. & Capezuti, E.
Guardianship: Protection Versus Peril
Geriatric Nursing; Vol 12 (1), 10-13; January/February 1991.
Journal article (research)
In order to assess the process for establishing incompetency and the role of nurses in guardianship cases, randomly selected incompetency hearing records of 49 people, aged 60 and older, were analyzed. Results suggest that the allegedly incompetent person had no advocate and only a few had legal counsel. The absence of the allegedly incompetent person from court guardianship hearings was often justified by physicians' statements. There was no documentation from, or testimony by, nurses regarding the functional status of the elders. Researchers recommend a multidimensional geriatric assessment in order to evaluate the competence of an elder based upon his or her ability to perform basic and instrumental activities of daily living (ADLs and IADLs).

76. G3242-7
Zimny, G., Gilchrist, B., Grossberg, G. & Chung, S.
Annual Reports by Guardians and Conservators to Probate Courts
Journal of Elder Abuse & Neglect; Vol 3 (2), 61-73; 1991.
Journal article (research)
In this study, researchers conducted a longitudinal analysis of the timeliness and content of annual guardianship reports submitted to the probate courts of a large metropolitan area in Missouri. Of the 318 cases reviewed, all financial reports were filed, but only 266 of the personal status reports were filed. While the financial annual reports were reviewed thoroughly, the status reports were not.

1990

Please note that the following entries have been published in a collection entitled:

Protecting Judgment-Impaired Adults: Issues, Interventions, and Policies
Dejowski, E., ed.; Haworth Press, Inc.; Binghamton, NY; 1990.

This book is not available through CANE. To order, contact Haworth Press, Inc. at:
1-800-429-6784 or on the Web at www.haworthpress.com.
Price: $29.95


77. P5896-7
Alexander, G.
Avoiding Guardianship
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 163-175; 1990.
Journal article (scholarship)
After reviewing the lack of progress in the field of guardianship during the preceding decades, the author describes changes which may improve the process. Stricter guidelines and the use of functional assessment, rather than medical assessment, are among the recommendations. The durable power of attorney and the living will are proposed as tools that may preserve elder autonomy and eliminate the need for guardianship in many cases. (Note: This article is one in an issue of JEAN devoted to the topic of Guardianship.)

78. P5888-7
Dejowski, E.
Introduction
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 1-13; 1990.
Journal article (scholarship)
In this introduction to the issue of the Journal of Elder Abuse & Neglect (JEAN) dedicated to the topic of adult guardianship and alternatives for decisionally incapacitated adults, the editor describes the contributions of such authors as Marshall Kapp, Lawrence Frolik, Madelyn Iris, Kathleen Wilber, and others. Topics range from evaluating decision-making capacity to abuses of guardianship. In addition, he describes case law development in this area. (For abstracts of individual articles in this volume, please see CANE file #s P5889, P5890, P5891, P5892, P5893, P5894, P5895, P5896, P5897 and P5898.)

79. P5893-14
Frolik, L.
Elder Abuse and Guardians of Elderly Incompetents
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 31-56; 1990.
Journal article (scholarship)
The focus of this article is the prevention and intervention of elder abuse and neglect by guardians. The complexity of evaluating the performance of a guardian is highlighted through a series of hypothetical situations concerning protection of assets and the provision of personal care. Therefore, the author proposes that rather than "grade" the guardian, state laws concerning elder mistreatment and exploitation should be used to determine whether or not the guardian is abusive. Guardians are not only subject to the same elder abuse laws as other citizens, they are also accountable to the appointing court, which can remove the guardian, or order restitution in the case of financial abuse. A successor guardian or guardian ad litem could sue the removed guardian. Such remedies could also act as deterrents if guardians were made aware of these potential consequences. The creation of judicial sanctions is also considered, along with the need for more comprehensive training and education of the guardian, supervision and review, and the use of court visitors. (Note: This article is one in an issue of JEAN devoted to the topic of Guardianship.)

80. P5890-10
Hightower, D., Heckert, A. & Schmidt, W.
Elderly Nursing Home Residents' Need for Public Guardianship Services in Tennessee
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 105-122; 1990.
Journal article (research)
This study was designed to assess the need for public guardianship among elderly nursing home residents in Tennessee. All licensed facilities were surveyed regarding the demographics of the institution's residential population. They were also asked to identify the number of residents who already had been appointed some form of guardianship, and those who appeared in need of such appointments (including limited guardianship, conservator of property, conservator of person, representative payee, and power of attorney). Surveys were completed by administrators of 123 of the 295 institutional care facilities solicited for the study, representing a response rate of 41.7 percent. Among the results, 238 of the 10,513 residents (2.3 percent) were reported to have a limited guardian; 102 (1 percent) were reported to have a conservator of property; 190 had a
conservator of person; 680 residents (6.5 percent) used a power of attorney; and 2,136 (20.3 percent) had a representative payee. Therefore, a total of 31.9 percent of elderly residents in the nursing homes that provided complete data utilized some form of Tennessee guardianship service. Of the remaining residents, staff identified 327 that they believed were in need of a limited guardian; 41 in need of conservator of property; 80 in need of conservator of person; 417 in need of representative payee; and 179 in need of someone to have power of attorney, suggesting that 10 percent of this population have unmet needs in this area. (Note: This article is one in an issue of JEAN devoted to
the topic of guardianship.)

81. P5897-10
Hull, L., Holmes, G. & Karst, R.
Managing Guardianships of the Elderly: Protection and Advocacy as Public Policy
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 145-162; 1990.
Journal article (scholarship)
In this article, the authors describe how the lack of due process and the biases of physicians, attorneys, and others contribute to the overuse of guardianship as a protection for the elderly at risk for abuse, neglect or self-neglect. They also propose that capacity assessment include assessments of the physical ability, knowledge and skills, values and goals, physical and social environment, systemic variables, and psychosocial and intellectual functioning of the proposed ward. Additionally, they recommend that the court limit the guardianship or conservatorship to the specific areas in which the ward demonstrates needs. (Note: This article is one in an issue of JEAN devoted to the topic of Guardianship.)

82. P5892-8
Iris, M.
Uses of Guardianship as a Protective Intervention for Frail, Older Adults
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 57-71; 1990.
Journal article (literature review)
In this article, the author reviews the findings of four projects on the efficacy of guardianship as a protective intervention for the frail elderly. In the Model Project of Guardianship for the Low-Income Aged, researchers noted that for clients whose major needs were related to their refusal to seek medical assistance, guardianship was not an effective intervention. While guardianships proved ineffective in removing self-neglecting clients from their homes (due to limitations of guardianship law), they were effective in protecting frail elders with impaired decision-making capacity from abusive caretakers. Findings from the project conducted by the Metropolitan Chicago Coalition on Aging (mid-1980's) demonstrated that legal interventions such as guardianship and orders of protection were not the most appropriate for resolving elder abuse issues. In an ethnographic study of judicial decision-making, it appeared that guardianships are used for many reasons, notably estate management, consent for nursing home placement, and consent for medical treatment, but rarely to address cases involving elder abuse or neglect. And in a survey of guardianships opened in three Illinois counties in 1985, it was found that the incidence of cases involving suspected or substantiated elder abuse and neglect was very low, and that indicators of possible abuse were often ignored by court personnel and guardians ad litem. The author concludes by offering guidelines for guardianship diversion or guardianship alternative programs. (Note: This article is
one in an issue of JEAN devoted to the topic of Guardianship.)

83. P5894-8
Kapp, M.
Evaluating Decisionmaking Capacity in the Elderly: A Review of Recent Literature
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 15-29; 1990.
Journal article (scholarship)
This article presents common themes and issues identified in recent literature concerning decision making capacity. The four standards of functional assessment of decision making capacity are identified throughout much of the literature: the ability to make and communicate a decision; the ability to understand relevant information; the ability to manipulate the relevant information in the decision making process; and the ability to understand one's own circumstances and the consequences of the decision made. Another framework proposed suggests that the individual has functional decision making capacity if he or she can enter into a therapeutic alliance with the clinician. The benefits and limitations of standardized testing are discussed. It is commonly accepted that an individual's ability to make a choice be evaluated in light of the specific decision to be made. The concept of assisted capacity (which includes providing more information
in more accessible ways, and treating underlying medical conditions) is also discussed. The article concludes with a discussion regarding the distinction between capacity and competency. (Note: This article is one in an issue of JEAN devoted to the topic of Guardianship.)
        
84. P5895-11
Loewy, E.
Social Contract, Communities and Guardians
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 123-143; 1990.
Journal article (scholarship)
This article presents various notions of the social contract and how they impact upon the
expectations held for guardians as they are responsible to (and for) their wards. The author argues that "...individual autonomy is ethically of primary importance..." After providing a discussion regarding the philosophical aspects of the social contract, he examines the need to strike a balance between autonomy and beneficence. (Note: This article is one in an issue of JEAN devoted to the topic of Guardianship.)

85. P5891-9
Nolan, B.
A Judicial Menu: Selecting Remedies for the Incapacitated Elder
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 73-88;1990.
Journal article (scholarship)
In this discussion, the author urges the court to consider all possible remedies for neglected or self-neglected elders who have been referred for a guardianship hearing. Such remedies include the imposition of involuntary adult protective services (APS), commitment for mental health problems, and partial or plenary guardianship. A critical element in determining which remedy (if any) is appropriate is the functional evaluation, one that is based upon the individual's ability to meet his or her daily needs versus diagnosis alone. The author concludes with a discussion of the procedural issues and limitations involved in using the judicial menu. (Note: This article is one in an issue of JEAN devoted to the topic of Guardianship.)

86. P5889-9
Wilber, K.
Material Abuse of the Elderly: When Is Guardianship a Solution?
Journal of Elder Abuse & Neglect; Vol. 2 (3/4), 89-104; 1990.
Journal article (research)
After providing a brief overview of material abuse, the author describes the Guardianship Diversion Project (GDP) of Los Angeles, which was conducted to determine the effectiveness of money management as an alternative to the more restrictive guardianship. The 63 participants, who had been referred to either the county Office of Public Guardian or to adult protective services (APS), were followed for a period of one or two years. The sample group demonstrated high levels of cognitive impairment, functional limitations, social isolation and depression, and over 40 percent
of were victims of financial abuse or financial exploitation. Two case examples from the study are used to illustrate issues to be considered when determining whether guardianship is the appropriate intervention to prevent victimization. One case demonstrates an example of abuse; even though the cognitively impaired victim has given the perpetrator permission to take some of her money and valuables, the victim appears to be an appropriate candidate for guardianship. However, in the other case scenario, the elder is not cognitively impaired, although he continuously demonstrates poor judgment which has jeopardized his assets, and therefore does not appear to be an appropriate candidate for guardianship. (Note: This article is one in an issue of JEAN devoted to the topic of guardianship.)




For information on reference materials on guardianship materials published earlier than 1990, please visit the CANE online database at

http://db.rdms.udel.edu:8080/CANE


Additional resources:

American Bar Association Commission on Law and Aging, online at:
http://www.abanet.org/aging/


The Center for Social Gerontology (TCSG), online at:
http://www.tcsg.org/


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