The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

Determining Decisional Capacity and the Need for Adult Guardianship
By Rebecca J. O’Neill

The Statutes

1. Health Care Decisions for Adults in Illinois

Several statutes address surrogate health care decisions for adults in Illinois. They are: (a) the Illinois Living Will Act (755 Ill. Comp. Stat. 35/1 to 35/10 (West 1998)); (b) the Illinois Power of Attorney Act (755 Ill. Comp. Stat. 45/1-1 to 45/4-12 (West 1998)); (c) Article XI(a) of the Probate Act of 1975 (755 Ill. Comp. Stat. 5/11a-1 to 5/11a-23 (West 1998)); and (d) the Health Care Surrogate Act (755 Ill. Comp. Stat. 40/1 to 40/55 (West 1998)).

2. Mental Health Care Decisions for Adults in Illinois

A separate statute addresses surrogate mental health care decisions. The Mental Health Treatment Preference Declaration Act (755 Ill. Comp. Stat. 43/1-43/115 (West 1998)) codifies the procedures to delegate mental health care decisions to a surrogate.

3. Property Decisions for Adults in Illinois

Three statutes govern surrogate property decisions for adults in Illinois. They are: (a) the Illinois Power of Attorney Act (755 Ill. Comp. Stat. 45/1-1 to 45/4-12 (West 1998)); (b) Article XI(a) of the Probate Act of 1975 (755 Ill. Comp. Stat. 5/11a-1 to 5/11a-23 (West 1998)) and, (c) Trusts and Trustees Act (760 Ill. Comp. Stat. 5/1 to 5/17 (West 1998). The application of trusts is not discussed in this article.

Definitions of Capacity

The practitioner’s initial concern in determining the need for a surrogate is whether the adult lacks "capacity" to make decisions for himself. The statutes that identify procedures to establish a surrogate’s authority to make decisions for an incapacitated adult offer various definitions of capacity.

The Health Care Surrogate Act provides the most explicit and narrow definition of "decisional capacity." It provides that "[d]ecisional capacity means the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or foregoing life-sustaining treatment . . . ." (755 ILCS 40/10)

On the other hand, the Illinois Power of Attorney Act does not define "capacity." Instead, it refers to the definition of "disabled person" found in the Probate Act of 1975 (755 ILCS 45/2-3). The Probate Act of 1975 does not define capacity either, but instead offers of very broad definition of disabled person;

[A] person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate. (755 ILCS 5/11a-2).

Because the Probate Act of 1975 provides such a broad definition of disabled person, it does not necessarily follow that someone adjudged a disabled person also lacks decisional capacity to make health care decisions. In In re Estate of Austwick, the court concluded that the adjudication of a person as disabled under the Probate Act of 1975 does not automatically overcome the presumption that the person has decisional capacity under the Health Care Surrogate Act. The court found that because the disabled adult possessed decisional capacity, her consent to forego life-sustaining treatment was required for a Do Not Resuscitate Order rather than the disabled adult’s guardian’s consent. In re Estate of Austwick, 275 Ill. App. 3d 665, 656 N.E. 2d 773 (4th Dist. 1993).

An attorney representing a proposed guardian who seeks the power to make health care decisions, including the right to decide the issue of life-sustaining treatment, would be wise to be very specific in pleading that the alleged disabled adult lacks decisional capacity to make these decisions, and, assuming the court agrees, be certain that the order makes a specific finding that the patient lacks decisional capacity to make health care decisions and lacks decisional capacity to make a decision about life-sustaining treatment.

Determining Decisional Capacity

Undoubtedly, many attorneys have different methods of determining whether someone has capacity to sign legal documents. I have worked in a legal clinic, which provides high volume free legal services to the elderly, for a period of eight years and have used this rule of thumb: if the person can communicate to me that he understands the document that I am presenting to him, then he has capacity to sign the document. So far, my judgment has not yet been challenged. This is not to say that the rule of thumb or my judgment are perfect, rather it is to point out that challenges about capacity are infrequent. Unless someone disagrees with the powers delegated under a durable power of attorney or the agent’s actions, the issue whether the principal had capacity usually does not arise. If a person has capacity to understand legal documents, such as a durable power of attorney for health care or property, the person probably has the capacity to make decisions concerning his health care or property.

Sometimes clients have capacity to understand the documents but have difficulty communicating their understanding or desires. For example, some stroke victims have difficulty communicating, but completely understand the contents of the durable power of attorney. Sometimes, other impairments affect the person’s ability to communicate, such as hearing or vision loss. Whenever there is a communication barrier, the attorney must attempt to find a way to overcome that barrier. Sometimes, it is as simple as printing the document in a larger font size or reading the document verbatim to the client. Sometimes, it means hiring an interpreter to do sign language. Sometimes, it means designing questions so the client can answer "yes" or "no". Sometimes, it means simply speaking in a very loud voice. Whatever the communication barrier, it often means being patient. Most communication barriers can be overcome.

Sometimes communication barriers cannot be overcome. When this happens, the effect is the same as if the person does not have capacity to make decisions because the person cannot communicate his or her decisions. For example, once our legal clinic was asked to provide legal services to a gentleman in a nursing home. The nursing home administration had no documentation about the man’s family history. No one ever visited the man. When I talked with the man his eyes were bright and he tried to respond to my questions. He could not write or speak. He could nod his head to indicate "yes" or "no". It was clear that he wanted a will. Yet, I could not figure out a way to ascertain to whom he wanted to bequeath his possessions or who he wanted to name as an agent in a durable power of attorney. In retrospect, I wonder if I had gone through the alphabet with him and had him answer "yes" or "no" to each letter of the alphabet, if I could have eventually spelled the names of each person. Communication barriers are very frustrating for both the client and the attorney.

Sometimes it is clear that the person has more than a barrier to communication. The person may be physically or mentally impaired to the point that he cannot communicate at all. It may be clear that the person does not understand the nature or consequences of his action or inaction. The person may not converse coherently. The person may be unable to manage his personal and financial affairs.

If a guardianship becomes necessary, a physician must document the person’s impairments. Article XI(a) of the Probate Act of 1975 requires a Report to accompany the Petition for Adjudication of Disability and for Appointment of a Guardian. The statute requires "the signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report." (755 ILCS 5/11a-9).

When is a Judicial Determination of Incapacity Not Necessary?

Health care providers can rely on an agent’s decisions acting under a durable power of attorney for health care without a judicial determination of incapacity. The Illinois Power of Attorney Act states: "Whenever a provider believes a patient may lack capacity to give informed consent to health care which the provider deems necessary, the provider shall consult with any available health care agent known to the provider who has power to act for the patient under the health care agency." (755 ILCS 45/4-7(a)). Likewise, persons can rely on an agent’s decisions under a durable power of attorney for property without a judicial determination of incapacity. The Illinois Power of Attorney Act states: "The agent is authorized to: exercise all possible powers of the principal with respect to all possible types of property and interests in property . . . ." (755 ILCS 45/3-4(o)).

Under the Health Care Surrogate Act, a judicial determination of incapacity is not required before a surrogate can make the decision to withhold or withdraw life-sustaining treatment if the patient has a qualifying condition under the act (755 ILCS 40/10). Similarly, a judicial determination of incapacity is not required before life-sustaining treatment can be withheld or withdrawn from a person who has an operable Living Will (755 ILCS 35/6). As the law currently stands, a judicial determination of incapacity is not required under the Health Care Surrogate Act before the surrogate can make any medical treatment decision for the patient that has been deemed to lack decisional capacity as determined by one physician. Legislation is currently pending to amend the Health Care Surrogate Act to define "medical treatment." The current statute’s constitutionality has been questioned by commentators.

Illinois law also recognizes that health care providers can give emergency medical treatment without a patient’s consent if the examining physician determines that a patient is not capable of giving informed consent, and a delay to obtain the consent would either endanger the patient’s life, or adversely, and substantially, affect a patient’s health (405 ILCS 5/2-111). A judicial determination of incapacity is not required before the emergency medical treatment is rendered.

Determining the Need for Guardianship

Once an attorney is satisfied that the alleged disabled adult lacks capacity to make decisions, the attorney should then focus on the type of decision that needs to be made for this adult. That is, within which of the following categories does the proposed decision fall: (a) health care; (b) mental health care; or, (c) property?

1. Health Care - If the decision only concerns emergency medical care, no guardianship is needed. Again, Illinois law recognizes that health care providers can give emergency medical treatment without a patient’s consent if the examining physician determines that a patient is not capable of giving informed consent, and a delay to obtain the consent would either endanger the life or adversely and substantially affect a patient’s health (405 ILCS 5/2-111).

If a patient lacks capacity and has an operable Durable Power of Attorney for Health Care and an agent who is willing to make health care decisions, the agent will most likely have power to make all decisions concerning health care, and no guardian will be necessary to make health care decisions. The attorney should review the Durable Power of Attorney for Health Care to see whether the principal limited the agent’s power to make the decision about the pending health care issue. If the principal limited the agent’s power, the question arises whether the agent would then have the power under the Surrogate Health Care Act to make the decision despite the limitation. Clearly, this would circumvent the underlying theme of the statutes that address surrogate decision making, which is Illinois’ recognition of a patient’s right to self-determination. The better approach would be to find that the agent cannot circumvent a Durable Power of Attorney for Health Care by relying on the broad medical decision making powers granted under the Health Care Surrogate Act, if the principal has limited the agent’s power on a specific medical treatment issue. Arguably, 755 ILCS 40/15 of the Health Care Surrogate Act addresses this concern. Should there be some compelling reason to override the principal’s limitation of powers, a guardianship would be necessary. However, it is difficult to imagine when a court might override a person’s expressed wishes concerning medical treatment.

If the patient has both a Durable Power of Attorney for Health Care and a Living Will, the Durable Power of Attorney for Health Care controls. The Illinois Power of Attorney Act specifically provides that as long as an agent is available, the Living Will is inoperable (755 ILCS 45/4-11). Therefore, if the issue concerns life-sustaining treatment for a patient with a terminal condition, first inquire whether the patient has a Durable Power of Attorney. If the patient only has a Living Will, and the issue is whether to withhold or withdraw death-delaying procedures, the physician can withhold or withdraw death-delaying procedures by following the guidelines set forth in the Illinois Living Will Act (755 ILCS 35/1- 35/10). Guardianship is not needed under these circumstances.

Under the 1998 version of the Health Care Surrogate Act, as long as there are surrogates identified by the statute willing and available to make medical care treatment decisions for the person, a guardianship of the person should almost never be needed to obtain authority for health care decisions . If a group of surrogates under the Health Care Surrogate Act vote on a particular medical treatment decision and the vote results in a tie, a guardianship could be pursued. A guardian of the person outranks all other potential surrogates under the Health Care Surrogate Act (755 ILCS 40/25). If there are no surrogates identified by the Health Care Surrogate Act who are willing and available to make medical treatment decisions for the adult, a guardianship of the person should be pursued. Under these circumstances, the public guardian or Office of State Guardian will most likely be appointed as guardian.

2. Mental Health Treatment - The Mental Health Treatment Preference Declaration Act sets forth an instrument called a Declaration for Mental Health Treatment (755 ILCS 43/1 to 43/115). With this instrument, an individual can appoint someone to make a variety of decisions regarding mental health care. These decisions include electroconvulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a health care facility for a period of up to seventeen days (755 ILCS 43/5(7)). The statute provides that the declaration is to be followed if two physicians determine that the principal’s Aability to receive and evaluate information effectively or communicate decisions is impaired to the extent that the principal lacks capacity to refuse or consent to mental health treatment." (755 ILCS 43/75). Whenever the attorney is asked to seek guardianship over someone with mental illness, the attorney, should always inquire whether the person has an operable Declaration for Mental Health Treatment. If the treatment is covered by the declaration and two physicians agree that the patient lacks capacity to consent to or refuse mental health treatment, the agent may make the decision concerning the mental health treatment. Guardianship will not be necessary.

Guardianship is not the appropriate tool to use to involuntarily admit someone to a mental health facility for treatment. In In re Gardner, 459 N.E. 2d 17 (4th Dist. 1984), the Illinois Appellate Court ruled that a guardian does not have "power to admit a nonconsenting ward to a mental health facility for treatment as a voluntary patient." (Id. at 20). The trial court’s order requiring a guardian to execute a voluntary application for mental health treatment for a nonconsenting ward was found erroneous. (Id. at 21). Accordingly, under the Mental Health Care Developmental Disabilities Code, the court would determine whether the patient should be involuntarily admitted to a mental health care facility through an involuntary admission hearing (405 ILCS 5/3-700).

A more controversial issue is whether an agent under a Durable Power of Attorney for Health Care can consent to mental health treatment, including psychotropic medication. One interpretation of the Durable Power of Attorney Act is that an agent under a durable power of attorney can make all mental health treatment decisions for the principal except involuntary placement of the individual in a mental institution. The language in the statutory form of the durable power of attorney for health care provides support for this interpretation. It provides:

1. I, . . . , hereby appoint: . . . , as my attorney-in-fact (my "agent") to act for me and in my name (in any way I could act in person) to make any and all decisions for me concerning my personal care, medical treatment, hospitalization and health care and to require, withhold or withdraw any type of medical treatment or procedure, even though my death may ensue . .

2. The powers granted above shall not include the following powers or shall be subject to the following rules or limitations (here you may include any specific limitations you deem appropriate, such as: your own definition of when life-sustaining measures should be withheld; a direction to continue food and fluids or life-sustaining treatment in all events; or instructions to refuse any specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any other reason, such as blood transfusion, electro-convulsive therapy, amputation, psychosurgery, voluntary admission to a mental institution, etc.)[.]

If the durable power of attorney executed by the principal does not express limitations after this paragraph, the agent has the power to make any type of health care decision, including the right to make mental health treatment decisions. Because the statutory form gives examples of different types of mental health treatment, it is clear that the form was designed to allow delegation of mental health treatment decisions. Note however, that the statutory form provides for "voluntary" admission to a mental institution. If the principal leaves this language as written in the statutory form, the agent could only consent to admission to a mental health institution when the principal also consents.

It is unclear whether the 1998 version of the Health Care Surrogate Act is intended to cover mental health treatment decisions. As written, the act does not define "medical treatment." Proposed pending legislation, however, has been drafted to address this potentially troublesome language. As written, it seems that as long as a physician determines the patient lacks the ability to understand and appreciate the nature and consequences of a decision regarding treatment, the surrogate can consent to any type of medical treatment, including mental health treatment.

Property

If a person has lost capacity to make property decisions, and the person has not executed a durable power of attorney or a trust that controls the property at issue, guardianship will be necessary to give someone the legal authority to make the property decisions. Sometimes spouses avoid the need for guardianship by having joint accounts. For example, it is not uncommon for spouses to have funds directly deposited into a joint checking account. As long as one spouse has the ability to access the account to meet the couple’s needs, guardianship would not be necessary. The same is not true, however, for real property held in joint tenancy. A spouse does not have the authority to execute a deed for real property, without some specific legal instrument that gives the spouse the authority, such as a durable power of attorney for property or a trust. If a spouse loses capacity, or any joint owner of real estate loses capacity, and there is no instrument delegating the power to transfer the property, a guardianship would be necessary to obtain the authority to transfer the property.

Other Times When Guardianship is Necessary

Sometimes guardianship is necessary even though the disabled adult executed a durable power of attorney or some other instrument to delegate decision-making power in the event of incapacity. This most often happens when the agent is abusing his powers as agent or is neglecting the principal. Under limited circumstances, courts may scrutinize actions by agents named under a durable power of attorney. A court can appoint a guardian to exercise the principal’s powers and can revoke the agent’s powers if the court finds that the agent either acted contrary to the principal’s benefit under the agency terms, or the agent’s actions or omissions resulted in harm to the principal (755 ILCS 45/2-10(a)). A court may, without appointing a guardian, enter other orders to provide for the principal’s best interests, interpret the agency terms, and instruct the agent accordingly (755 ILCS 45/2-10(b)). A court, however, has no power to amend the agency (See id.). The statute does not define "amend." Interpreted narrowly, a court cannot change the powers delegated to an agent or limited by the principal, but it could grant the specified powers to a different agent.

If it is clear that the agent either causes or permits the incapacitated person to be left a great risk of harm by leaving the disabled adult alone, by denying the disabled adult the basic necessities of life, by inflicting physical or verbal abuse on the disabled adult, guardianship can be sought to remedy the situation. If it is clear that the agent is neglecting or abusing the principal or failing to meet to needs of the principal, courts should not be reluctant to appoint a guardian to exercise the principal’s powers and revoke the agent’s powers. Courts should, however, exercise caution when scrutinizing an agent’s actions concerning health care. An agent may act in accordance with the agency terms, yet substantial harm to the principal, even death, may result when the agent decides to withdraw or withhold life-sustaining treatment or refuse medical treatment. If a case is brought before the court under the theory that the agent is neglecting, abusing or failing to meet the principal’s needs, the court should decide whether the agent is acting as the principal intended.

If it is clear that an agent misappropriates the principal’s property or the agent is exploiting the disabled adult by acting in a way contrary to the principal’s best interest, a guardianship then can be sought to remedy the situation.

An attorney might offer guardianship where a principal revoked a durable power of attorney for health care but did not execute a new durable power of attorney. The principal revoked the power of attorney because the principal did not want the agent to be his decision-maker. The person to whom the agency was initially granted under the durable power of attorney, because of his family relationship to the principal, now falls in the shoes as the surrogate decision-maker under the Health Care Surrogate Act. To keep this person from serving as decision-maker, a guardian of the person could be appointed.

Conclusion

When advising a client about the need for guardianship, the attorney should first inquire whether the person, over whom control is sought, lacks capacity to make decisions for himself. If the person has capacity, the attorney might consider offering durable powers of attorney, a declaration for mental health treatment, or a trust to assist in planning for future incapacity. If the person lacks capacity, the attorney should question whether the person executed a durable power of attorney, a mental health declaration, a trust, or some other document that delegates the power to make his decisions. If the person has not delegated decision-making authority through a written instrument, the attorney then must inquire what type of decision needs to be made. If a health care or mental health treatment decision needs to be made, the attorney should consider whether the decision could be made by a surrogate under the Health Care Surrogate Act, without the necessity of a guardian. If a property transaction needs to be made, it is likely that guardianship will be necessary. The attorney should also consider using guardianship as a device to protect incapacitated adults from being abused, neglected and exploited.

Rebecca J. O’Neill is an Associate Clinical Professor of Law at Southern Illinois University. She works in the Elder Law Clinic which provides legal services to the elderly in the southern thirteen counties of Illinois. She received her Undergraduate Degree in 1985 and her Law Degree in 1988 from Southern Illinois University. She may be reached at rjoneill@siu.edu.


 
 
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