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How Do Guardians Make Decisions For Their Wards?

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Guardians make decisions on behalf of their ward. While this may seem pretty straight forward, often times, it’s not simple at all. On the one hand, the guardian should promote the ward’s autonomy and dignity. On the other hand, the guardian needs to protect the ward from exploitation and sometimes, from their own diminished decision-making ability. One question that often comes up over the course of a guardianship is “what should I do, when my ward wants to do something that is not good for them?” This can be tough. Do you let them? Do you prohibit it? Well, the answer is, it depends.

The best interest standard vs. the substitute judgment standard

There are two primary standards on how guardians make decisions for their ward: The best interest standard and the substitute judgment standard. In a 2018 study from the Office of Elder Justice and Adult Protective Services of the Administration for Community Living, published by the American Bar Association, twelve states utilized a best interest standard and nineteen used a substitute judgment standard in their statutes.

The best interest standard directs that the guardian should always act in the best interest of the ward, even if it is not how the ward would have acted if they had the choice. This standard prioritizes the guardian’s view of what is best for the ward, over the decisions and thoughts of the actual ward. While there are several jurisdictions that implement this standard, it has faced criticism. Some critics find this standard demeaning, and think it restricts the wards agency to make their own choices.

The substitute judgment standard takes a different approach. Instead of prioritizing the desires of the guardian, the guardian makes choices in accordance with the choices the ward would have made if they had the capacity to do so. Often times, this means acting according with the ward’s preferences including, when the ward’s preferences aren’t in their own best interest.

To understand the difference, here is a hypothetical. Let’s say your ward is your elderly grandfather. His favorite Saturday night activity for the last 30 years was to go to the casino and gamble. You never liked this behavior and don’t think it’s good for him. Now, he’s incapacitated, you’re the guardian, and he wants to hit the casino. Under the best interest standard, you might prohibit his gambling. Under the substitute judgment standard, you may let him hit the slots, at least for a little while.

Other standards

Some jurisdictions don’t fully commit to either of these standards. Some encourage “maximum self-reliance” for the ward- directing the guardian to foster the protected person’s independence as much as possible. Other jurisdictions encourage the guardian to exercise the “least restrictive” intervention possible. This approach means the guardian should make decisions that least restrict the ward’s agency. In some cases, courts have also applied variations of the substituted judgment standard. In one case, Strunk v. Strunk,  “reasonable person” substituted judgment standard was applied to determine if a guardian could consent to donate the kidney of her incompetent son to her other son. In this case, the ward was incapacitated for their whole life, and was unable to express their own wishes.

What’s the standard in Arizona?

The Arizona statute that covers the topic, A.R.S. 14-5312(7) says “In making decisions concerning his ward, a guardian shall take into consideration the ward’s values and wishes.” While it may seem pretty straight forward, this is often easier said than done. In cases like the one described in Strunk v. Strunk, the ward may not be able to express their own values and wishes. The guardian is often making decisions on unique facts and circumstances. If Grandpa wants to gamble away his house, the decision making process might look different than if he wants to spend $100 at the slot machines. And, regardless of the standard applied in the jurisdiction, the guardian still must take care not to endanger the health or waste the assets of the ward.

While it can be difficult, there are resources available. For example, the Superior Court in Maricopa County put out a guardianship training manual to help clarify. There is also an excellent podcast from ACTEC on the topic. Of course, we also encourage you to consult with an attorney if you are unsure about your duties and obligations towards your ward.

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Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.