Judging Capacity of Older Adults in Guardianship Proceedings

Edie L. Greene (Professor of Psychology, University of Colorado at Colorado Springs) has recently published her article entitled Deciding to Let Others Decide; Judging the Need for Guardianship and Conservatorship, Prob. & Prop., Jan./Feb. 2008, at 47.

Here is the conclusion to her article:

All adults are presumed to possess capacity unless adjudicated otherwise in guardianship or conservatorship proceedings. This decision is ultimately a judicial one, though judges get significant input at these hearings from other professionals involved in the lives of older adults. Although all states have modified their guardianship statutes in recent years to define more precisely the bases for judgments of capacity and to include more specific and functional standards that emphasize a respondent’s ability to manage the tasks of daily living, differences linger among legal professionals in their judgments of older adults’ capacity and ability to care for themselves. Awareness of this situation can and should lead to increased dialogue among professionals about their common interest in protecting both the autonomy and the safety of older adults.