The Problem:
Co-AGE has been very involved with adult guardianship
reform, including passing the resolution creating the Joint Senate and
House Guardianship Rewrite Study Committee to address concerns about the
adult guardianship system.
One issue of concern is the definition
of incapacity and the method by which the determination of incapacity is
established. The definition primarily emphasizes the person's diagnosis
rather than the person's abilities. The law already contains a provision
for limited guardianship to meet the needs of the ward.
Currently, the law provides that a
petition for guardianship may be supported by a affidavit from "A
physician licensed to practice medicine under Chapter 34 of Title 43 or
of a psychologist licensed to practice under Chapter 39 of Title 43...".
Once the [petition is reviewed by the Probate Judge and determined to be
sufficient to believe the proposed ward is incapacitated, independent
evaluation is ordered by the court. The qualifications for the court
ordered examiner are the same. The issue has no uniform minimum
evaluation requirements. The degree of "testing", expertise of the
examiner, the method of evaluation, and compliance with the law varies
throughout the state. Further complicating the issue is the fact that
many Probate Judges are not attorneys or medical personnel and depend on
the judgment of others, who may or may not be skilled in determining
mental capacity, to provide evidence. Minimum evaluation requirements
would provide the same standard of evaluation for all potential wards
and an established set of information for all probate proceedings.
What other states are doing:
Florida, Tennessee, Texas, West Virginia, South Dakota, Rhode
Island and New York are among the states that have designed their
law to include an analysis of the functional abilities of the
proposed ward in determining the need for a guardian and the type of
guardianship that is appropriate.
What this legislation would do:
Changing the definitions of incapacity, mandating minimum evaluation
procedures, and focusing on the proposed ward's capabilities as well as
incapacity would allow a more appropriated and equitable guardianship
process. It would also give Probate Judges more information up
which to base their legal decisions.
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