Solomon Center Hosts Panel on Guardianship Issues for Older Adults

On Nov. 15, 2022, the Solomon Center for Health Law and Policy co-hosted Guardianship Grand Rounds at Yale School of Medicine focusing on issues related to conservatorship. The discussion was guided by Dr. James Lai, Associate Chief of Clinical Affairs in Internal Medicine/Geriatrics at Yale New Haven Hospital. Legal experts sitting on the panel were Carmine Perri, specialist in elder law at Czepiga Daly Pope & Perri, and Heather Dostaler, Chief Counsel at the State of Connecticut Office of the Probate Court Administrator. Representing an advocacy and community health center perspective was Melissa Lang, CEO and President of the Agency on Aging of South Central Connecticut. Dr. Joseph Fickes, psychiatrist at Yale New Haven Health, spoke to the challenges of medically assessing capacity. 

The panel examined the issues of conservatorship using a case study frequently faced by geriatric medical providers: a patient with declining self-care abilities and memory loss whose family is facing internal disagreement about who is best positioned and should serve as the patient’s decision maker. The conversation centered around the process of determining which kinds of patients have the capacity to choose power of attorney or healthcare representatives (HC rep), the ethical dilemmas of choosing decision maker, power of attorney, and health care representative, how community organizations like Agency on Aging can assist with this process, and the legal perspectives on choosing a decision maker and/or conservator.

The panel began with Fickes, the psychiatrist, who discussed how psychiatrists and doctors determine a patient's capacity of decision-making. Fickes emphasized that criteria are time dependent: the ability to meet any of these standards may change from day to day. Fickes explained the importance of involving a psychiatrist in such assessment; a patient’s mental health or mental illness may affect a patient’s capacity as much as a cognitive impairment. Fickes also mentioned that while a patient's decision may not be the most medically optimal decision, it might be the most rational for their own circumstances and therefore satisfy capacity criteria. 

Lang, from the Agency on Aging, then spoke on the role that community organizations like hers can play to alleviate the ethical and social dilemmas faced by both doctors and lawyers relating to issues of conservatorship and decision-making. Lang detailed the process that the agency might take in such a case presented: first meeting with the family to listen to perspectives, then performing a home visit to observe the circumstances and abilities of the patient. Lang emphasized the importance of affirming the independence of individuals and utilizing least restrictive measures while acknowledging that when individuals who lack cognitive capacity wish to remain at home, it may result in poor health outcomes and liability for the in-home caregiver. 

Dostaler then provided insight into how conservatorships are appointed. The court considers a number of factors when weighing the need to appoint a conservator against the needs of the patient, including whether a person has capacity to manage their own affairs (personal or financial), whether they have a POA and/or healthcare representative, among others. Additionally, the court considers these factors, and ultimately its decision, through a lens of “least restrictive means” as outlined in the Connecticut statutes for conservatorship. 

Lastly, Perri, the elder law specialist, raised ethical questions and considerations surrounding a person’s ability to make decisions, even if they are seemingly ”bad” decisions. Lawyers must be able to identify who their clients are in every situation because, ultimately, she said, lawyers' responsibility is to represent the wishes and best interests of their clientsm — even if those wishes do not make sense to family members or others. The determination should be whether or not a person has the capacity to make decisions, rather than what those decisions are, she said. 

The conversation continued with a discussion on current gaps in the process of determining the resources a patient needs, a physician’s or hospital organization’s ability to help, and the best ways to navigate the judicial and administrative systems to secure the help/resources needed.