Rights Considerations Surrounding Surrogate Decision-Making in Guardianships
Thursday, October 12, 2023
4:00 PM – 5:15 PM ET
Location: Iron (Fourth Floor)
In the United States, 35.2% of people age 65 and older live with a disability; 8.9% of people age 65 and older have a cognitive disability. Certain cognitive disabilities mean that some adults require the help of a surrogate decision-maker (e.g., a guardian), including adults with serious mental illness, intellectual disability, and traumatic brain injury who require short- or long-term guardianship depending on the progression and treatment of their disability. Little is known about the characteristics of people with a guardian; one study in rural Virginia examined them across three years. Guardians are bound by statutory requirements, case law, and ethical principles to act in the best interests of a vulnerable adult. Guardians are fiduciaries charged to act according to the highest standards of care, accountability, trust, honesty, confidentiality, and avoidance of conflict of interest. Powers given to guardians are often immense (e.g., authority to sell a person’s home and personal property, consent to medical treatments). The National Guardianship Network, a collaboration of 13 national organizations that advocate for quality guardianship, drafted a national Bill of Rights for Adults with a Guardian, categorizing rights always retained after a guardian is appointed, personal rights that a court may restrict but not delegate to a guardian, and rights a guardian may exercise on behalf of an adult. This presentation is a discussion of how these rights could be supported, as presented against a backdrop of the characteristics of a population of persons with a guardian living in a rural area.