Why Guardianship?	Your Situation	
1.	Why is the adult considering or being considered for guardianship? [What are things the person is no longer able to do that leads to an increase in his/her level of vulnerability?]

	
2.	What specific needs or problems will guardianship solve (focusing on protecting the person)?
[Make sure the focus is on protecting the person, not the convenience or benefit to a 3rd party such as the family, heir, hospital, or nursing home.]  	

	
3.	What decisions can the person make now (For example, can the person pay his/her own bills?  Can he/she make decisions about personal health care?)?

	
4.	To evaluate the extent to which a person can make informed decisions, consider the following questions:		
a.	Does the person understand that a particular decision needs to be made?

b.	Does the person understand the options that are available in making the decision?	

	
c.	Does the person understand the consequence(s) of each option?	

	
d.	Can the person seek help or advice? 

		
e.	Is the person able to properly inform the appropriate parties once the decision has been made?

	

	Money Management	
Is the person able to manage his/her money on a day-to-day basis?	For each of the following money management tasks (indicate status with a check or a brief remark):	

Can he/she do any of the following:
	
Can the person do it alone?	
Can he or she do it with help?
	Does he or she know when to ask for help when he or she needs it?	Does he/she accept help when it’s offered?
	
1.	Protect and spend small amounts of cash?					
2.	Manage and use checks?					
3.	Establish and use credit?					
4.	Deposit, withdraw, or invest monetary assets?					
5.	Pay, settle, or contest a claim or bill?					
6.	Enter into a contract, financial commitment, or lease?					
7.	Resist financial exploitation and coercion?					

Questions to Consider	Y/N	Status/Notes	
•	Has the person recently been diagnosed with a serious illness – particularly one that is expected to cause a decline in mental and physical health?
			
•	Is the person currently able to make informed decisions and communicate what he or she wants for future health care, mental health treatment, and/or financial arrangements? 

If the answer is yes to both questions (make decisions & communicate), advance planning is necessary and should be started as soon as possible.			
•	Has the person recently come into money from a third party source, such as a legal settlement, inheritance, gift from friends or family, insurance settlement, or Social Security back payments?
If so, and if the amount the person is expected to receive is greater than the asset limits for public benefits, establishing a special needs trust could protect these funds without affecting an adult’s eligibility for public benefits.			

Questions to Consider	Y/N	Status/Notes	
•	Has a physician or psychologist, who is familiar with the person, written a statement saying the adult is incapacitated?
This statement is required for all petitions for guardianship (The statement is written on a form called a PP-505 & can be found in the petition packet you get from your local Probate Court).			
•	Do the benefits of having a full guardian outweigh the restrictions and loss of rights the person will experience under full guardianship?
			
•	Has everyone involved in the decision-making process learned about and ruled out less restrictive alternatives?

These questions help you consider full guardianship and its consequences as one of several options.

When considering guardianship, you should convene a meeting with friends, family members and providers to consider the questions below. Every member of the team should think about and answer these questions in an open discussion. Conclusions or areas of agreement should be recorded to be used in court, if needed.

Question to Consider	Status	What needs to be done?	
1.	What things does the person need help with?
			
2.	How does guardianship specifically allow the person to get help with the things he/she needs?			
3.	Does the person accept help with these things?
			
4.	What things do you think this person is unable to do or understand - even with help?
			
5.	What things could the person learn to do, or do part of, with help and practice?
			
6.	Does the person understand financial contracts enough to enter into one? (e.g., credit cards, cell phone contracts) 
Note-it’s important to be realistic about this. College students are given credit cards all the time and we enter into cell phone contracts and rarely read the fine print!
			
7.	Does the person understand day-to-day conversations with their medical providers about their health and medicines (with help if needed)?
			
8.	Does the person ask for help or accept help with medical decisions or Dr’s appointments?
			
9.	What are your biggest fears about this person not having a guardian?
			
10.	How will a court-ordered guardian help with those fears?

11.	Thinking about all of the options from no guardian/no help to full guardianship, what do you think would be the most helpful for this person to be safe and have the support they need to make decisions?			

NOTE: As the proposed guardian or conservator, you need to write a guardianship or conservatorship plan for approval by the judge.  You may write your plan to reflect the person’s abilities and wishes to the extent possible. Even with full guardianship, a judge can approve a plan to reflect certain decisions the person can make for themselves or certain rights that are preserved.

When considering decisions about guardianship, judges are required to collect information in six areas. These six areas are usually referred to as the “Six Pillars of Capacity Assessment.”  Some of these areas are represented by the questions included in the form, Why Guardianship. The questions listed below are used by the various medical & allied health professionals the judge relies on as sources of expert information, in addition to the invaluable information he/she collects from the alleged incapacitated person’s family and friends.

Pillar or Factor	Definition/Explanation	Associated Questions	
1.	Medical Condition Causing Functional Disability

	•	In the past, many state laws included “physical illness”, “physical disability”, “advanced age” &”other cause(s)” as justifications for recommending guardianship. These labels were vague & discriminatory & therefore resulted in subjective judicial decisions. 
•	Now judges are more “evidence-based” & therefore require information on the specific problem that could be causing diminished capacity.
•	Some medical conditions are temporary & reversible.  	•	What are the direct symptoms of the medical condition? What is their impact?
•	What are the indirect symptoms of the medical condition? What is their impact?
•	Are there symptoms being overlooked? What are they?	
2.	Cognitive Functioning Component	•	Cognitive functioning includes alertness or arousal, memory, reasoning, language, visual-spatial ability, & insight. Neurological and psychiatric disorders may have an impact on the person’s ability to process information.
•	The 1997 UGPPA (?) defines an incapacitated person as someone who is “…unable to receive & evaluate information or make or communicate decisions to such an extent that the person lacks the ability to meet essential requirements for physical health, safety, or self-care even with appropriate technological assistance” ().
•	In some states, “cognitive functioning” is a part of the statutory standards for determining capacity.
	•	What?

•	When?

•	Where?

•	Why?	
3.	Everyday Functioning Component	•	Allied health professionals (mostly occupational therapists) divide everyday functioning into (a) activities of daily living [ADLs] such as grooming, toileting, eating, transferring, dressing, etc. & (b) instrumental activities of daily living [IADLs] such as the ability to manage finances, health, & functioning in the home & community.
•	Until recently, state law required tests for ADLs & IADLs were mostly vague & subjective  - e.g., “incapable of taking care of himself”, “unable to provide for personal needs &/or property management” or “incapable of taking proper care of… self or property, and fails to provide for the person’s family.” ()

Vague standards lead to judgments of incapacity based on an opinion of the reasonableness of a person’s behavior, which is a subjective assessment - not evidence-based.
•	Several state standards are now more objective. They focus only on the ability to provide for one’s “essential needs” such as an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety.” ()	•	What are the person’s rhythms, routines, & old habits?
•	What is the sequence in the person’s daily rhythms, routines, & old habits?
•	What is the environment in which the rhythms, routines, & old habits are performed?
•	What is the person’s role?	
4.	Consistency of Choices with Values, Preferences, & Patterns	•	The person’s capacity reflects the consistency of choices with his/her life patterns, expressed values, & preferences. Choices that are linked with lifetime values are rational for that person even if they are outside the norm.
•	Values are important for assessing capacity and for determining a plan for guardianship or alternatives to guardianship.
•	The person’s core values may affect his/her (a) choice of guardian or another person to assist and (b) preferences about medical decisions, financial decisions, & living arrangements.
	•	What is the person’s role & culture?
•	What is important to the person?
•	What are the person’s beliefs & values?	
5.	Risk of Harm & Supervision Needed	•	Most state laws require that the guardianship is necessary to provide for the essential needs of the person because there are no other feasible options so that imposing guardianship is the least restrictive alternative for addressing the proven substantial risk of harm ().
•	Social & environmental supports may decrease the risk. Lack of supports may increase the risk. So risk is determined not only by the condition itself but by consideration of the adequacy & availability of supports in the environment.
•	The level of supervision is determined by the judge & must match the risk of harm to the person & the corresponding level of supervision required to decrease that risk. 
•	Sometimes, risk is low & can be addressed with a less restrictive alternative or limitation to guardianship. Sometimes less restrictive alternatives have failed or are inappropriate so that a plenary (?) guardianship is needed.
	•	Is the environment and situation safe?
•	Is the person him/herself safe in the environment and situation?	
6.	Means to Enhance Capacity	•	The Court needs to be aware of the ways that capacity can be enhanced through practical accommodations & medical, psychosocial, or educational interventions. 
•	The mere existence of a physical disability should not be grounds for guardianship since most can be accommodated with the guidance of the individual
•	The means for enhancing capacity informs many judicial actions:
o	Maximizing capacity at the hearing
o	Determining appropriate review period for judicial review, especially if restoration of capacity is possible.
o	Determining treatments, services, and habilitation in the person’s plan.	•	Assess performance & environment under previous pillars?
•	How does environment support or impair performance?
•	Recommend accommodations: 
o	Restructuring environment
o	Establishing familiar routines
o	Implementing supports & supportive interventions