JENNIFER MOYE THE COMPETENCE QUESTION

Every state provides by law for the assignment of a guardian or conservator for adults when they are considered unable to care for themselves or to manage their own property. The term guardianship traditionally refers to guardianship of the person, whereby a court appoints an individual or agency to be the substitute decision maker and supervisor for decisions regarding day-to-day life, including matters such as living arrangements, health care, finances, and provision of other basic needs.

Assessments for guardianship of person are among the most chal­lenging because the abilities and skills to be evaluated can be so broad as to include functioning in almost all aspects of life. Likewise, the conse­quences are of great significance for the individual who, if considered incompetent, may lose autonomy in decisionmaking for almost all aspects of his or her life.

Legal decisions about an adult's need for a guardian most often involve individuals who are significantly mentally impaired due to psychiatric illness (including alcohol or drug dependence), neurological illness (including dementing illnesses), or developmentally disability. The question of need for guardianship often is raised by the individual's relatives who petition the court for guardianship so that they may make decisions for the family member concerning, for example, placement in treatment facilities or protection of financial assets. Not all guardianship arrangements, however, involve relatives; in many states, courts may appoint a person who has developed a reputable practice as a guardian and who acts as guardian and/or conservator for many mentally ill and disabled individuals.

All adults are presumed to be legally competent to make decisions regarding self and estate unless determined in a court of law to be other­wise. The appointment of a guardian for person or estate follows a judi­cial determination that an individual is legally incompetent, after a petition for guardianship has been filed and a hearing held.

Although clinicians may refer to a patient's competence status and may request other clinicians to evaluate a patient's competence, a clinical finding of incompetence should not be confused with ajudicial determina­tion of incompetence. The clinical use of the term competence refers to a clinical opinion regarding the patient's decisional capacities. Such an opin­ion does not and cannot alter the individual's legal competence status. In addition, such an opinion generally does not grant clinicians or family members the right to make decisions for the patient even though they may feel a patient's decision is imprudent. There are exceptions to this in the area of health care decisions which at times fall under guardianship law and (sometimes conflicting) at other times fall under other statutes such as those providing for advance medical directives (Moye & Zehr, 2000). For example, when a patient has previously been appointed a durable power of attorney for health care, this can and would spring into effect (for medical decisions only) upon a clinical finding of incapacity. The area of health care management (managing one's own health on a day to day basis) generally falls under guardian­ship law and will be addressed in this chapter. Evaluating capac­ities for making specific medical decisions is discussed further in chapter9.

The distinction between legal versus clinical competence is empha­sized because some clinicians may confuse clinical and legal uses of the term competence and thus intervene without the legal authority, often when intervening with paternalistic albeit benevolent motivations (Kane, 2001). One useful approach to avoiding such confusion is to be quite spe­cific in language use: for example, to refer to one's clinical evaluation as a clinical assessment of abilities and capacities for the purposes of evaluat­ing the need for guardianship.

In recent years most states recognized the need to move away from the notion of legal incompetency as a global or all-inclusive characteristic. Instead, states are focusing on the concept of incapacity which is meant to avoid the sweeping all-or-nothing implications and social stigma of the term incompetence (Sabatino, 1996), Theoretically, this also allows for tai­loring limited guardianships to address the specific legal incapacities of an individual, often described in terms of specific behavioral limitations (e.g., unable to manage bank accounts but able to manage a weekly allowance). Such an approach works well for clinicians who address spe­cific functional abilities and capacities in their evaluations.

Later discussions of assessments in this area will focus especially, although not exclusively, on elderly adults whose competence to care for self or property is questioned. This is because the large majority of guardian­ships concern elderly individuals with psychiatric or neurological diagnoses (Barnes, 1992; Krauss & Sales, 1997). This trend will increase as the number of older adults increases; in 1985,11.9% of the U.S. population was 65 years of age or older, and this will increase to about 13% by 2005 and about 20% by 2025 (Myers, 1990), with greatest growth in the over-80 age range.

A common underlying condition leading to adjudication for guardianship in older adults is dementing illness, including dementia caused by Alzheimer's disease, Parkinson's disease, multiple infarcts, and alcohol-induced persisting disorders which increase in prevalence with advancing age.

While older adults more often are subject to guardianship than younger adults, it is worth pointing out that advancing age or physical frailty in itself is not grounds for guardianship. For example, the inability to write checks related to severe arthritis in an older adult does not imply the individual is incapable of managing funds, in the same way that a spinal cord injury in a younger adult does not assume any incompetence, but rather that assistance may be needed in completing a task. The need for psychosocial or nursing services to accomplish a task at the elder's direction should not be confused with impairments in judgment and deci­sion making that may underlie the need for a substitute decision maker (Anderer, 1997).

In addition, it is important to note that most older adults, even those with some functional limitations, are independent and can rely upon the support of family. Most older adults live with spouses (64% of those aged 65-74), have weekly contact with children (86% with living children report weekly contact), and live independently (American Psychological Association, 1997). For those older adults who need assistance with tasks of daily living, family and friends continue to be the primary source of assistance for seniors in the United States. Even for adults with significant functional impairments, the family (most often wives and daughters) pro­vide the bulk of the care (Chappell, 1990).

Declarations of incompetency and assignments of guardianship are not required, of course, for many of the elderly with functional limita­tions, because cognitive abilities are intact and substitute decision making is not necessary. In cases when decisional support or substitution is help­ful, many alternatives to guardianship can be exercised, such as health care proxies, durable powers of attorney, shared bank accounts, and trusts (Cross, Fleischner, & Elder, 1996).

Many adults who are made wards of guardians probably experience considerable benefits from the arrangement. At best, the individual receives needed care at home, with the guardian attending to and coordi­nating services for his or her needs. The guardian may assure that the individual's disability allowances, social security receipts, retirement ben­efits, or savings work to ensure continuity of care and are directed and invested according to the individual's plans and preferences. The arrangement may offer the individual protection from persons who would dupe the disabled individual into unscrupulous financial arrange­ments. Furthermore, a guardian can be an important advocate for a men­tally compromised and vulnerable adult who is unable to advocate for him or herself. For example, there is concern about vulnerable older adults in psychiatric or long term care institutions who must rely on the beneficence of their care providers without the benefit of a third party to insure that their needs are met and preferences respected (Altman & Parmelee, 1989), including consent (or non-consent) for psychotropic medication (Parry, 1986a). At worst, however, guardians may arrange for their wards' involuntary and unnecessary hospitalization in public men­tal hospitals or placement in substandard residential facilities, the guard­ian having been motivated primarily by the desire to protect as much of the ward's estate as possible for personal use or inheritance.

Whatever the consequences, they occur at a considerable expense to the ward. Appointment of a guardian results in loss of the right to make choices about residency, health care, medication, relationships, marriage, contracts, voting, driving, use of leisure time, and spending (Krauss & Sales, 1997).

These potential deprivations of freedom, as well as the risk of peti­tions that are primarily motivated by potential gains for the guardian, point up the importance of due process in guardianship cases. They underscore as well the special care that should be taken in clinical evalua­tions for guardianship, upon which the courts rely heavily when deter­mining a person's capacity to care for self or property.

Law and Current Practice

During the 1960s and 1970s, reviews of guardianship standards and procedures repeatedly noted significant problems in legal standards (the statutory definitions of incompetency) and in legal procedures (the process by which guardians were appointed and monitored). Legal defi­nitions and processes were built on the presumption that the state or fam­ily member was acting in the best interest of the proposed ward and thus few due process protections were needed. While most guardianship peti­tions are filed by family members wishing to protect the best interests of an elderly adult, the system has been open to potential abuses by those seeking guardianship or conservatorship for financial exploitation of an elderly adult (Parry, 1988). For example, while being a guardian for an incapacitated adult with early onset disability (e.g., an adult with life long developmental disability and minimal employment) would be unlikely to provide personal financial gain, this is not the case when being a guardian for a recently incapacitated adult with late onset disability (e.g., an adult who has amassed considerable assets who now has dementia) (Ritter, 1995).

Problems with legal standards and procedures allowed such poten­tial abuses. Specifically, reviews of earlier standards and procedures (e.g., Anderer, 1990; Hommel, 1996; Moye, 1999; Tor & Sales, 1994; Wang, Burns, & Hommel, 1990) found that:

• statutory definitions for competency were vague

• medical evidence to establish decisional deficits was often sketchy or conclusory

• there were no standards regarding who was qualified to complete clinical evaluations

• those completing clinical evaluations were not required to be pres­ent at hearings for questioning of their expertise and findings

• the proposed ward was rarely advised of the hearing, present at hearing, or represented by counsel, and

• guardians and conservators often were not monitored.

The past twelve years has seen extremely active guardianship law reform throughout the country, although some states lag behind. From 1988-2000 a total of 302 guardianship bills were passed in the United States (Wood, 2000). These bills, some a massive overhaul of guardianship procedures and others addressing minor points in guardianship law, focused on the legal standard for defining and determining incapacity, discussed below, and the legal procedures for appointing a guardian, discussed later.

Legal Standard

States have moved away from standards of legal incapacity that are based on diagnoses to more specific and functional standards (Anderer, 1990, 1997; Tors & Sales, 1994; Wood, 2000). Although the presence of a mental condition is typically still a part of legal standards for incapacity, it is considered the necessary "causal" element, but not a sufficient element to establish the need for guardianship. Revised statutes for legal incapac­ity tend to have three components (Anderer, 1997): mental or physical condition; cognitive or decision making impairment; and behavioral results or consequences. Some states do not specify all three components, although in some of these states they are implied and required in practice. Most statutes link two or more of these elements with the causal phrases "by reason of which" or "as a result of."

The many ways in which these elements have been combined in various states make a description of a typical statutory definition virtually impossible. The first of the above components (the disabling condition com­ponent) will be discussed in more detail under the "Causal Component" section of this chapter. The cognitive and behavioral components will be discussed under the "Functional Component" section of this chapter. What follows are some examples of more recently revised statutes to give the reader a sense of evolving legal standards for defining incapacity. Because of discrepancies between states, clinical evaluators should be familiar with statutes in their jurisdiction.

The Uniform Guardianship and Protective Proceedings Act (Revised 1997; also known as Article V of the Uniform Probate Code, abbreviated UPC) provides a basis for statutes regarding guardianship in some states, and defines legal incapacity of the person as: "any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxification, or other cause (except minority) to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions." Recently revised codes emphasize the relationship between decisional or cognitive impair­ments and functional outcomes. In Virginia's 1997 code revision, appoint­ment of a guardian is indicated by "a lack of capacity to meet the essential requirements for health, care, safety or therapeutic needs" or to "manage property or financial affairs" (VA. H.B. 2027). In Iowa's 1997 code revi­sion, appointment of a guardian follows the incompetency of an adult when decision making capacity is so impaired that the individual is "unable to care for the person's personal safety, or to attend to or provide for necessities for the person such as food, shelter, clothing, or medical care, without which physical injury or illness may occur," or the individ­ual is "unable to make, communicate or carry out important decisions concerning the person's financial affairs" (IA. S.F. 241). Similarly, in 1995 Oregon over-hauled its guardianship law, including a new definition of legal incapacity as "a person's ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person's physical health or safety" (OR. S.B. 61).

In 1996 California passed a ground breaking reform to guide evalua­tions for guardianship of persons and property, epitomizing the move away from diagnosis as sufficient to establish incapacity (Wood, 2000). California's "Due Process in Competency Determinations Act" (CA. S. B. 730) specifi­cally states that legal incapacity is based on evidence of a deficit in one or more of the person's mental functions, noting that the mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that the proposed ward is of unsound mind or lacks the capacity to do a certain act. Four categories of mental functions are detailed:

• alertness and attention, including deficits in level of arousal, con­sciousness, orientation, attention, or concentration

• information processing, including deficits in memory, understanding and communicating with others, recognition of objects and persons, understanding and appreciating quantities, reasoning abstractly and logically, planning, organizing and carrying out actions

• thought process, including hallucinations, delusions, and intrusive thoughts

• modulation of affect.

The statute specifies that impairments in any of these mental functions may be considered only if the deficit "significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question" in consider­ation of the "frequency, severity, and duration of impairment." A detailed form describing these deficits must be completed by a licensed psycholo­gist or physician (Hankin, 1995). The form is not meant as a rating tool but provides a common language to clinicians, attorneys, and judges with which to speak about functional incapacities.

Many statutes include a qualifying term in their descriptions, such as responsible or effective decision making without which there will be some degree of harm that crosses a theoretically unacceptable risk threshold (Anderer, 1997). Such wording clarifies that determination of incompe­tence involves a value judgment. The removal of the right to self determi­nation is so significant that it is expected to occur only in cases without which there would be substantial risks to the individual.

In summary, the revisions to legal standards of incompetence for guardianship include the presence of a mental disorder and specific func­tional consequences, be they decisional and/or behavioral, that exceed an unacceptable risk or harm threshold. The intent is to require evidence of specific and significant functional incapacities that will:

• protect individuals from guardianships based on the presence of a mental disorder alone

• install guardians and invoke the potentially sweeping loss of rights only when functional consequences are extreme

• require evaluations that provide the courts specific functional data to create limited rather than plenary guardianships.

Research to evaluate the impact of recent revisions to legal standards would investigate whether clinical evaluations are indeed focusing on specific and significant functional incapacities (e.g., are func­tionally oriented instruments used in the evaluation) and whether guardianships are limited. While the former question has not been inves­tigated, research on the latter question (Barnes, 1996; Hommel, 1996; Keith & Wacker, 1992; Lisi & Barinaga-Burch, 1995) has found that limited guardianships are not often utilized. Across ten states surveyed between 1989-1992 only 13% of guardianships were limited, except in Minnesota which provides a separate form for plenary versus limited guardian­ships (and conservatorships), in which case 54% of guardianships were limited (Lisi & Barinaga-Burch, 1995). Another study found little increase in the use of limited guardianship and least restrictive alterna­tives before and after statutory reform in Iowa and Missouri (Keith & Wacker, 1992).

Legal Process

The legal guardianship process begins with the filing of a petition in the correct court according to the jurisdiction of the proposed ward, which in most states may be done by any interested person (Hafemeister & Sales, 1984). After this, medical evidence (a clinical evaluation) is collected, a hearing is held, and a guardian is appointed and monitored if the person is found incompetent.

medical evidence. Pre-1980 reviews found problems with the low quality of clinical evaluations and the sometimes questionable quali­fications of the evaluator. Observers noted that examiners' testimony usually was either merely a conclusion about competence ("I have examined the individual and find him to be incompetent") or an identi­fication of a particular disorder followed by the conclusory com­ment (Alexander, 1977; Allen, Ferster, & Weihofen, 1968; Horstman, 1975; Stone, 1975).

States have addressed the problem of inadequate evaluations by providing more detail and direction to the evaluator. For example, many states now list the required elements of a clinical evaluation (e.g., diagno­sis, cognitive limitations, functional consequences) and provide a multi­part medical certificate form. For example, Florida's form lists numerous specific incapacities to be considered separately; Rhode Island's "Decision Making Assessment Tool" form provides separate checklists for biologi­cal, psychological, and social assessments.

States have also developed guidelines for examiner qualifications. Physicians have been recognized as qualified to perform competence evaluations and complete medical certificates, although reforms have specified that the physician must be specialized in the area. In additions, reforms have expanded the list of professions considered qualified, espe­cially because laws tend now to focus more on cognitive and behavioral data regarding capacity. Expanded definitions typically include licensed psychologists, social workers, or other psychiatric or geriatric specialists. Some states have recognized the importance of a clinical team. For exam­ple, Florida requires a three-person examining team appointed by the court, including psychiatrist or physician, physician or gerontologist, nurse, or social worker, or anyone chosen by the court but not the family's physician (FL. Stat. Ch. 744.331(3), 1989). Maryland requires evaluation by two licensed physicians or by one licensed physician and one licensed psychologist (MD. Est. & Trust, § 13-705,1999).

hearing. Pre-1980's reviews of guardianship also registered great concern with procedures governing hearings. For example, Horstman (1975) found that the alleged incompetent individual was not present at the hearing in about 85% of cases. Counsel representing the elderly per­son was present in less than 3% of the cases. Most hearings lasted only a few minutes, and only about 4% of the petitions were denied. Health pro­fessionals who had examined the elderly individuals were present in only one case (out of more than 1000); examination results were conveyed to the court by affidavit in the remainder of the cases.

Subsequently, states tend to have enhanced due process protections in these areas. First, many states have instituted more stringent notice requirements, specifying that the respondent must be served in person and must be provided an explanation of the individual's rights (Wang, Burns, & Hommel, 1990). For example, in 1996, Maryland substantially changed its rules of procedure now requiring the respondent to be served with an "advice of rights" form plainly spelling out the consequences of guardianship and the rights to defend against it. Similarly, in 1995 Oregon replaced most of its existing guardianship law (S.B. 61), in particular requiring notice to the proposed ward that must be served personally, must be in understandable language and large type, and must explain the consequences of the petition as well as the respondents' rights.

A second issue related to hearings is whether the respondent is pres­ent at hearings. Many states have modified their statutes so that the respondent is more likely to be present at the hearing by either mandating or encouraging attendance, with a provision that the respondent can be absent if physically or mentally unable to attend the hearing. The spirit of the law is that respondent's may be excused if comatose or otherwise extremely impaired, but not because of the absence of notice, opportunity, or access (Tor & Sales, 1994). However, a more recent study still found that respondent attendance at hearings was low (28%), noting that mandating respondent presence or mandating counsel increased respondent atten­dance, while only encouraging or allowing respondent presence was less effective (Lisi & Barinaga-Burch, 1995). Of note, guardianship proceed­ings should comply with the American with Disabilities Act of 1990 which prohibits discrimination on the basis of disability (Stiegel, Mason, Morris, Gottlich, & Rave, 1993). But most states are behind in this area. A few have expanded the options for the hearing location, such as holding hearings at nursing homes or hospitals with little disruption in the judicial process (Stiegel, et al, 1993; Colorado H.B. 00-1375, 2000).

A third issue related to hearings is whether the respondent is repre­sented by counsel. Many states have modified statutes by either mandat­ing or encouraging representation. Representation by counsel would seem to have a significant impact on due process protections by providing the respondent a third party to insure all intended protections (e.g., notice of hearing, presence at hearing, right to object). Again, a key issue appears to be whether counsel is encouraged or mandated. In their 1995 study of guardianship reform across 10 states, Lisi and Barinaga-Burch (1995) found only 17-20% of respondents were represented by court-appointed attorneys and another 9% represented by private counsel, except in states requiring counsel where 80-93% of respondents had legal representation. When counsel is present, it is sometimes unclear if counsel is to act as a guardian ad litem (GAL) or as an advocate. An attorney acting as GAL may represent the individual's best interests and argue for the position that the GAL believes benefits the client, even if it conflicts with the client's expressed wishes. An attorney acting as advocate would represent the client's wishes and require the petitioner to prove his or her case (Stiegel et al., 1993).

The impact of representation deserves further study. For example, Keith and Wacker (1993) found that wards who retained their own coun­sel were more likely to receive limited guardianship or have the petition denied, while wards with court appointed counsel more often received full guardianship.

appointment and monitoring of guardians. States have been alter­ing guardianship statutes for better inquiry into the fitness of the pro­posed guardian. For example, in Oregon, in a petition for guardianship the proposed fiduciary must now answer whether he or she has ever been convicted of a crime or had a professional license revoked and whether he or she intends to place the respondent in an institution (O.R.S. 126.003 et.seq., 1995). Similarly, Nevada (NV. S.B. 414,1995) requires the petition to state that the proposed guardian has not been convicted of a felony. Texas (TX. H.B. 1195, 1995) disallows appointment of persons convicted of an assault on an elderly or disabled individual.

Guardians' accountability and courts' monitoring of guardianship have posed special challenges. Many states have enhanced the reporting requirements by guardians, including the filing of annual reports and inventories with the court, and added provisions to guide the actions of guardians. Some states are modifying law to better guide the actions of guardians. West Virginia and New York now require that guardians receive educational material or complete educational training, unless otherwise directed by the court (WV. Code sec 44A-1-10, 1995; NY. S.B. 4498-D, 1992). Utah now requires that conservators act as "prudent investors," exercise reasonable skill and caution, and evaluate decisions in light of the estate as a whole (UT. H.B. 121,1995). Florida (S. B. 1734,1996), Mississippi (H.B. 1420, 1996), and Illinois (S. B. 1527,1996) recently clarified the power of the guardian to purchase property or borrow money from the ward and to make gifts to him/herself as an heir, now providing for court authorization if it can be established that the action is consistent with the ward's wishes. States are also stipulating when guardians can be removed. For example, in Nevada, a guardian can now be removed if found to be abusing, neglecting, or exploiting the ward (NV. A.B. 585,1995).

In summary, the revisions to the legal procedures for guardianship have addressed many areas of concern, including the nature of the clinical evaluation and evaluator, the due process protections associated with the hearing, and the selection and monitoring of the guardian. Initial studies suggest that these reforms have enhanced the rights and protections pro­vided to the proposed ward, but that the incremental gain may be modest if the added protections are only encouraged rather then mandated.

Competency Assessment: Current Practice

To catch up with the sweeping legal reforms, the clinical literature on competence assessment for the purposes of guardianship has begun to provide general guidelines for the entire assessment, discussed below, including specific criteria for the functional component of these assessments.

One example of guidelines is that of the Department of Veterans Affairs (1997), which convened a technical advisory group of VA and non-VA psychologists, neuropsychologists, and geropsychologists. The guideline is aimed at psychologists but may be useful to any clinician. Of interest, the technical advisory group chose the topic because an elec­tronic survey of more than 500 psychologists revealed a dire need for guidance in the burgeoning demand for these assessments.

The guideline recommends that a guardianship assessment include:

• a detailed clinical interview with the patient, family, and involved professionals which includes an assessment of the patient's values, goals, and preferences, and an assessment of mental health condi­tions (i.e., which would lead to a psychiatric diagnosis)

• a performance based assessment of cognition, and

• a performance based assessment of the specific capacity in ques­tion (e.g., writing checks and counting change) (Department of Veterans Affairs, 1997),

The guideline gives equal weight to the steps that precede and follow the actual assessment. Preceding the assessment is: referral clarification, including determining what specific issues are in question, whether it is appropriate to be making an evaluation concerning competency (or if alternatives to guardianship should be pursued), and considering one's own qualifications; and, general assessment planning, including special issues in obtaining informed consent for the evaluation. Following the evaluation is: synthesis of data and communication of findings, which speci­fies how data might be brought together to develop conclusions, what should be included in the report, and to whom the results of the report should be communicated; andfollow-up evaluation that tracks the impact of the evaluation and recommended interventions.

Weiner and Wettstein (1993) provided a useful set of general prin­ciples for competence evaluations for guardianship: evaluating on more than one occasion, considering the effect of the evaluator and the evalua­tion setting on the evaluee, evaluating performance under conditions relevant to the competency, and conducting multidisciplinary evalua­tions. In the assessment phase itself they encourage an assessment of the examinee's personal values and goals, as well as functional assessments using standardized inventories, direct observation, and information from third parties. The evaluator is encouraged to become familiar with the rel­evant issues of the specific functional capacities to be addressed, become knowledgeable about the legal standards in one's state, and consider the reason and rationale for the patient's decision(s) as well as appreciate the affective and cognitive dimensions of decision making. They stressed that full informed consent must be obtained prior to the assessment and that the ultimate decision of competence is deferred to the courts after the assessment.

Writing from a Canadian legal perspective, Verma and Silberfeld (1997) also provided a useful set of general principles to be used in com­petency evaluations for guardianship. Their principles include the nota­tion that informal assessments of capacity are made every day, but that if there is ever a doubt, a formal assessment should be pursued but not only when behavior is merely eccentric or unusual. The assessment is justified when a person is at risk of significant harm to self or others or when the individual requests it for him or herself. They also noted that the evalua­tor is always to serve the interests of the individual being assessed, observe the principle of the least restrictive alternative, and presume the individual competent until proven otherwise. Assessments should be preceded by full informed consent, focus on task specific capacities, state the expected duration of any incapacity, and provide for a re-assessment plan.

From Legal Standard to Forensic Assessment

Functional Component

Statutes, case law, and the commentary of legal scholars make it clear that the central question of law in competence determinations for guardianship is the individual's functional abilities. When used in guardianship law, "functional" refers to descriptions of day to day capac­ities—what the person is capable of doing in the everyday management of person or estate. The strong emphasis on function directs courts and clini­cians not to accept a diagnosis alone as a justification for legal incapacity.

Functional assessments for guardianship should evaluate cognition and behavior through testing, observation, and third party informant report. There may be some confusion for clinicians who think of the word "functional" as relating only to activities of daily living (ADL's; i.e., eating, toileting, dressing, grooming, walking) and independent activities of daily living (IADL's; i.e., managing money, home, health, transportation, and meals). The law uses the term functional more broadly to refer to everyday behavior, meaning behavior that is observed, and the cognitive abilities— thinking, memory, judgment, and planning—that support and interact with that behavior. For example, an IADL test might determine if a person can write a check, while a cognitive test might determine whether a person can exercise judgment about when and to whom checks should be written. In this way, cognition and behavior, specifically overlearned daily living skills, are separate but related concepts and together predict everyday functioning (Zimmer, Hayden, Deidan, & Loewenstein, 1994).

Having said this, selecting the appropriate functional abilities relevant for guardianship and conservatorship cases presents several problems. The parameters for the hypothetical domain of abilities defined by these contexts are so broad that they seem to encompass almost all of the func­tions and skills that we employ in our adaptations to everyday life. When this is considered in light of the diversity of demands placed on us in all walks of life, the problem of defining dimensions of functional abilities related to "caring for self and/or property" is intimidating.

Several authors have suggested hierarchical schemes for organizing functional abilities associated with everyday life (Lawton, 1990; Spector, Katz, Murphy, & Felton, 1987), progressing from the more physically determined to the more socially determined: for example, from physical health to ADL's, IADL ^,s, learning and problem solving, and social roles. Evaluations of functional abilities for guardianship tend to focus on basic, safe functioning in the intermediate areas in these models, assuming enough physical capacity for some minimal functioning (e.g., it is not nec­essary or possible to evaluate functional abilities in an individual who is in a persistent vegetative state), but not requiring a "high" level of social capacity (e.g., having optimal social and occupational success is not rele­vant to guardianship).

A general consideration of the domain of abilities often described in this area suggests the following grouping of abilities: Finances, Health, Independent Living, and Transportation (see Table 3). This grouping is handy for clinical evaluation as it combines conceptually similar tasks and is consistent with social services and legal mechanisms (statutes, case law, and regulations) specific to these areas. Each of these categories deserves a brief description.

finances. The area of finances includes managing assets and spend­ing money, managing debts and obligations and paying bills, and also the more specific issues of contracts, disposition of property, and wills (i.e., including testamentary capacity; Heinik, Werner, & Lin, 1999; Regan & Gordon, 1997). Financial management can be conceptualized to involve three classes of cognitive skills: declarative knowledge, procedural knowl­edge, and judgment (Loeb, 1996; Marson, 2001; Willis, 1996). Declarative knowledge for finances involves the store of facts, concepts and events related to financial activities and accessible to conscious recollection, examples of which are knowledge regarding currency, bank statements, insurance, investments, and other personal financial data. Procedural knowledge for finances involves a variety of pragmatic skills, routines, and action sequences that are performance based and may be less accessible to conscious recollection, such as counting coins and currency, making

Table 3. Categories of Functional Tasks and Corresponding Social and Legal INTERVENTIONS

change, writing checks and paying bills, using credit cards, and complet­ing teller transactions. Financial judgment involves the capacity for rational, practical, considered and astute decisions in novel, ambiguous, or complex social situations. Examples of good financial judgment include minimizing the risk of financial loss, sensitivity to fraud and con schemes, invulnerability to coercion, and prudent investment.

health. The area of health includes consent to treatment and may be managed through health care proxies and durable powers of attorney for health care, or through guardianship. Consent to treatment may arise outside of the broader guardianship arena, often in the case of treatment refusal, and is discussed in detail in Chapter 9. However, consent to treat­ment, including psychiatric treatment for which some states have specific laws, may be a part of guardianship evaluations and of a guardian's obli­gations. Other areas of health care, such as managing day to day health (e.g., diet, wound care, and medication management) often come under the purview of guardianship.

Independent living. This third area is a broad category having to do with individuals' capacities to manage their person and place of resi­dence. Specific functional tasks relevant to this domain include household cleaning and maintenance, laundry, meal shopping and preparation, and communication (e.g., talking by telephone and letter). Senior service agencies have a wealth of services to assist vulnerable adults in living independently including homemaker services that will come to the home to cook, clean, do laundry, prepare meals, and even tackle larger outside tasks such as lawns, leaves, and snow removal. Communication aids include large button telephones, assistive devices, and animals for the deaf and hard of hearing. Medical alert systems can be installed for sen­iors to activate in the event of a disabling emergency. With all these serv­ice options the question is usually whether the adult, with social support if available, can manage the safety and well being of their home and per­son, noting that some degree of risk is reasonable for all adults.

transportation. A narrower category of functional abilities concerns transportation and the capacity to drive. This question more often arises outside of the guardianship arena after an adult has had a series of motor vehicle accidents. Visual processing (Owsley et al., 1998) and attention (Parasuraman & Nestor, 1993) are important to driving, and direct assess­ment of driving is best (Hunt et al., 1997; Kapust & Weintraub, 1992).

Clinicians may also be asked to evaluate other specific functional tasks, although again, often these come up outside of guardianship per se, including the capacity to vote and the capacity to engage in social rela­tionships such as marriage or sexual intimacy (Berger, 2000; Lichtenberg & Strzepek, 1990). However, any of these specific issues may be addressed in a guardianship evaluation, and when a plenary guardianship is granted decisions regarding these tasks become the responsibility of the guardian.

Causal Component

Almost all state codes require the establishment of a causal relation­ship between a medical or psychological condition and a deficiency in the abilities necessary to care for self and/or property. The deficit must be the product of some underlying, enduring, and disabling condition that cur­rently is beyond the individual's ability to alter or control. This is of importance because there may be no need for a guardian if the functional deficiency can be modified or remediated easily. Alternatively, incompe­tence might be declared for only that period of time necessary for remedi­ation; statutes generally provide for review of incompetency status, restoration of competency, and termination of guardianship when the need for it has diminished (see, generally, Sales et al., 1982).

States vary in how they describe the medical or psychological condi­tion. Many states refer to general terms such as mental illness, mental dis­ability, or mental condition. In a recent review, Anderer (1997) noted that 31 states make specific reference to chronic use of alcohol or drugs and 35 states make reference to physical illness or incapacity (added in some states to account for guardianship petitions for individuals with Alzheimer's disease). As states have undertaken guardianship reform, advanced age has been eliminated from statutes in recognition that advanced age itself does not imply deterioration in mental faculties, rec­ognizing such wording as "blatantly discriminatory" (Wood, 2000).

This description of the causal issue might seem to suggest that the presence of an irreversible brain dysfunction or a chronic psychotic condi­tion, in conjunction with functional deficits relevant for self-care, satisfies the causal question. In practice it might, although logically it does not. The apparent functional deficits may be coincidental to the disorder rather than caused by it. Brain dysfunctions, for example, occur in vary­ing degrees and with considerably different consequences for different individuals. Some cerebral conditions may have few important conse­quences for everyday functioning of some individuals. The mere coexis­tence of brain dysfunction and functional ability deficits, therefore, does not necessarily establish a relation between them.

There are at least three types of circumstances in which apparent functional deficits, although occurring in conjunction with cerebral dys­function, might be attributable to other causes. First, examiners selecting methods for assessing the elderly must consider several test-taking char­acteristics of this population that may produce measurement error. Included among these are limitations in hearing, vision, speed of process­ing, (Department of Veterans Affairs, 1997), susceptibility to fatigue for some elderly individuals (MacNeill & Lichtenberg, 1999), and the possi­bility that some elderly persons, and younger persons as well, will be reluctant to take formal tests because of fears of not doing well or because the process reminds them of school (LaRue, 1999). In addition, individual differences related to education, cohort, and ethnic differences may lead to misinterpretation of test scores by unqualified users (LaRue, 1999). Judicious selection of assessment methods and careful interpretation by qualified evaluators should reduce error related to these characteristics (Moye, 2000). In addition, the error inherent in any instrument for assess­ing functional abilities will produce a need to evaluate abilities by several methods. These might include not only standardized test methods, but also methods for determining the examinee's functioning outside the examination setting.

The second general circumstance derives from perspectives in geron­tology concerning the effect of environmental circumstances on the mani­fest capacities of the elderly (see, e.g., Lawton, 1990; Lawton, Windley, & Byerts, 1982; Scheidt & Schaie, 1978). An elderly individual's functional abilities at a given point in time might reflect an interaction between the individual and an environmental situation, rather than merely a personal deficit. For example, an elderly person's self-care skills may seem defi­cient because of a current living arrangement that has allowed the atro­phy of personal skills or has discouraged autonomous functioning. The deficiencies might be remediated by planned change in the elderly indi­vidual's environmental circumstances. The mere presence of a potential biological cause (e.g., brain dysfunction), therefore, does not rule out an alternative, environmental explanation. Older adults may be particularly sensitive to changes in environment and at higher risk for confusion or delirium in acute medical and psychiatric settings than individuals at other ages (Broshek & Marcopulos, 1999). Older adults may appear to be functionally impaired when instead they are experiencing an acute confu- sional state related to infection, fever, use of long acting benzodiazepines or narcotics (Broshek & Marcopulos, 1999). This points to the need for multidisciplinary assessment and multiple evaluations, as well as consid­eration of the role of the environmental circumstances on the individual's test performance.

A third alternative to brain dysfunction as an explanation for current functional deficits is the possibility that the deficiency might have predated the organic condition. The importance of determining premorbid function­ing in cerebrally impaired individuals is widely recognized as essential to an effective determination of the relation between current brain dysfunc­tion and functional ability, and underscores the importance of taking a careful history gathered from the individual, family, and medical records (LaRue, 1999). Some adults who have always had some degree of cognitive impairment and some propensity for eccentric decision making will be tar­geted for guardianships only when they become older, because of ageism or other inappropriate motivations such as financial exploitation.

Examining the potential causal explanations for functional deficits in the elderly, therefore, presents a considerable challenge to the forensic examiner. The evaluator must be sure of the reliability and validity of the assessment; the assessment must reflect true deficits and these deficits must be meaningful for the individual's environmental demands. The evaluator must also be clear about the time line of the onset of the organic condition and functional deficits to insure that they began on or around the same time. Interviews with informants including family members, neighbors, physicians, social workers, or home health care agencies may be required.

Neuropsychological data can also help in the integration of diagnos­tic and functional data. There is a growing body of literature to establish the ways in which cognitive deficits may predict behavioral deficits. Performance on ADL's has been linked to specific neuropsychological tests and general cognition (Lichtenberg et al., 1994; Moore & Lichtenberg; Lowenstein et al., 1992; Nadler et al., 1993; Searight et al., 1989). Performance on tests measuring visual-spatial problem solving and mem­ory has been linked to performance on tasks assessing medication man­agement (Isaac & Tambly, 1993; Palmer & Dobson, 1994; Richardson, Nadler, & Malloy, 1995) as well as financial management (Richardson et al., 1995). Driving skills have been related to tests of general cognition, visual attention and memory (Odenheimer et al., 1994).

Not all incompetency cases will require the same degree of detail in data collection within the medical, neuropsychological, functional ability, and social environmental spheres of the competency assessment. Yet most cases probably require some attention to each of these spheres. The diverse expertise required by these assessments has led some commenta­tors to recommend (Barnes, 1992; Hafemeister & Sales, 1984), and some states to require (Wang, Burns, & Hommel, 1990), multidisciplinary teams for evaluating disabled adults in guardianship cases.

Interactive Component

The construct of incompetence to care for self and/or property is not merely a question of the absolute level of functional deficit caused by phys­ical or mental disability. The individual's capacities must also be described and considered in relation to several contextual factors, including the situa­tional demands (e.g., living arrangements or financial assets) and social supports or stressors (Krauss & Sales, 1997). One of the legal fact finder's objectives is to determine the degree of incongruence between the person's abilities and these contextual demands. Thus, the outcome of a capacity evaluation for guardianship is the clinical interpretation of assessment data in light of the interaction of everyday functioning and contextual factors.

Observers of guardianship proceedings frequently have referred to this interactive quality of competence determinations. Similarly, Sales et al. (1982) observed that the type and degree of abilities perceived as necessary to care for property depends on the size, type and complexity of the estate. Inability to manage one's estate sometimes occurs not because of changes in the elderly person's functioning, but rather because of changes in property or income, to which the elderly person might not have adjusted. Thus, the evaluator should assess recent changes in the individual's financial or social situation.

Some disabled individuals may be so deficient in relevant functional abilities that they would be unable adequately to care for themselves or property under almost any independent living arrangement or financial circumstances. Some cases, however, will not have such extreme disabil­ity. In these instances, the absolute level and type of functional ability is not the sole question. Given two disabled persons with equal degrees and types of incapacity, one may be declared incompetent to manage some portion of self-care whereas the other may not, if the environmental cir­cumstances of the former are more demanding than those of the latter. The law's declaration of the disabled person as incompetent obscures the fact that the legal competence construct focuses on a person-environment interaction as incongruent, therefore representing an ecological condition of incompetency that endangers the disabled person.

The interactive perspective in guardianship law is paralleled by geron­tological theory emphasizing the congruence of person-environment fit (Kahana, 1982) or environmental press (Lawton, 1982; 1983). Descriptions of environments for purposes of evaluating the disabled person's capacities to function in those settings must take into account not only the physical environment, but the social characteristics of environments as well. For example, the presence or absence of sources of social support-relatives, friends, or supportive agencies-may enhance or frustrate the person's abil­ity to function, thus creating greater or lesser demands for self-management skills. Social supports, such as neighbors who willingly watch out for and assist an elderly adult, may allow the use of guardianship alternatives. Conversely, other social situations may demand a move towards a more intensive intervention such as conservatorship by adult protective agencies, for example when a relative is accessing an elder's assets not for the well being of the elder but for personal use, such as to support drug abuse. Because such financial considerations may not always be readily apparent, the evaluator should be attentive and inquisitive about the social context and related financial outcomes of guardianship petitions.

Some assessment methods designed for use with the elderly attempt to identify not only the individual's functional abilities, but also the physical demands and social supports of their present environments. These instru­ments, two of which are reviewed later in this chapter, may provide data necessary for the forensic examiner's attempt to describe congruencies and incongruencies between a disabled individual's abilities and environ­mental demands.

The impact of the interactive characteristic also relates to the person side of the person-environment interaction. An individual's awareness of deficit or insight may be key in determining how or whether they might be able to use modified environments to enhance decisional impairments (Anderson & Tranel, 1989). For example, many home health care agencies have money management services, which can help the individual in bal­ancing a checkbook and other minor financial transactions, but only if the individual is insightful about his or her deficit and maintains some judg­ment about making decisions about self or property in light of those deficits. The individual's preferences, values, and coping strategies con­tribute to contextual considerations. For example, loneliness or a desire for more contact with family may underlie a vulnerable adult's request for instatement or removal of a guardian.

This interactive characteristic of competence is seen also in the move toward limited guardianship that supports the concept of least restrictive alternative in guardianship proceedings (Anderer, 1990; Verma & Silberfeld, 1997), as well as the idea that incapacitated persons still participate as fully as possible in decisions affecting them (e.g., Idaho code § 15-5-503) and the emerging concept of assisted decision making (Gordon, 2000). This con­cept requires a consideration of alternative "environmental" arrangements that might satisfy the individual's need for protection without a declara­tion of incompetence or assignment of a guardian. In essence, this perspec­tive requires a search for congruent matches between a person and the situational, social, and individual contexts rather than focusing merely on the individual's functional deficiencies as a determinant of incompetence.

Judgmental and Dispositional Components

The law describes no absolute degree of functional deficiency or person-situation incongruence that defines when an individual should be declared incompetent and in need of a guardian. Statutes frequently employ terms like sufficient, grave, or substantial to refer broadly to the nec­essary degree of deficit, yet these are little more than markers signifying that a highly discretionary judgment must be made. That is, the determi­nation of incompetence requires a judgment that the individual's func­tional deficit and the degree of situational demand are sufficiently incongruent to warrant a finding of incompetence.

This judgment also requires a consideration of the dispositional consequences of incompetence for the disabled person. The fact finder must determine when the potential benefits of guardianship have reached some threshold, defined only by a sense of justice, warranting the conse­quences of nullification of fundamental rights and freedoms.

Empirical information discussed in relation to the other characteristics of the legal competency construct clearly is relevant for making compe­tence decisions about disabled adults. Yet it cannot answer the ultimate question of an individual's legal competence or incompetence, because that question requires the application of moral and social assumptions to the data.

Therefore, the purpose of a competence assessment for guardianship cases should be to describe what the individual can and cannot do, the apparent neurological (or other) reasons for those observed deficits, their relation to environmental demands, and (if possible) the practical conse­quences for the individual with or without a guardian in various, relevant residential or financial arrangements. If there is every reason to believe that the disabled person will perish or be in great peril without guardian­ship, the examiner should say so and explain why. Yet the question of the individual's legal competence or incompetence logically cannot be answered solely by any of these scientific data or opinions.

This is why it is important that clinicians distinguish between the clinical use of the term incompetence and its legal use. Clinicians who make evaluations of an adult's decisional and self-management abilities may have different tolerance for risk and a different sense of professional and personal liability. Clinicians involved in discharge planning for adults may have different opinions about whether an elderly adult's difficulties exceed an acceptable risk threshold (Clemens & Hayes, 1997), perhaps related to experience in the field or, for some, ageism. For this reason, it is important that judgmental and dispositional issues should be the respon­sibility of courts rather than clinicians.