Guardian Health Care Decision-Making Authority and Statutory Restrictions
State
UGPPA
UHCDA
AL
Ala. Code
AK
Alaska
Stat.
Decision-Making Authority
§ 315. Powers of Guardian.
Restrictions on Decision-Making Authority
§ 316. Rights and Immunities of Guardian; Limitations.
(a) Except as otherwise limited by the court, a guardian may:
(c) A guardian, without authorization of the court, may not revoke a
power of attorney for health care [made pursuant to the Uniform HealthCare Decisions Act] of which the ward is the principal.
(4) [C]onsent to medical or other care, treatment, or service for the
ward.
(d) A guardian may not initiate the commitment of a ward to a [mental
health-care] institution except in accordance with the State's procedure
for involuntary civil commitment.
§ 6. Decisions by Guardian.
Not addressed.
§ 26-2A-108. General powers and duties of guardian.
(a) A guardian shall comply with the ward's individual instructions and
may not revoke the ward's advance health-care directive unless the
appointing court expressly so authorizes.
Except as limited pursuant to Section 26-2A-105(c), a guardian of an
incapacitated person is responsible for health, support, education, or
maintenance of the ward . . . . In particular and without qualifying the
foregoing, a guardian has the same duties, powers, and responsibilities
as a guardian for a minor as described in Section 26-2A-78(b), (c), and
(d).
§ 13.26.150. General powers and duties of guardian
§ 13.26.150. General powers and duties of guardian
(c)(3) [T]he guardian shall assure that the ward receives the services
necessary to meet the essential requirements for the ward's physical
health.
(e) A guardian may not:
(c)(5) [T]he guardian may give consents or approvals necessary to
enable the ward to receive medical or other professional care, counsel,
treatment, or services except as otherwise limited by (e) of this section.
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Restrictions not addressed.
(1) [P]lace the ward in a facility or institution for the mentally ill other
than through a formal commitment proceeding under AS 47.30 in which
the ward has a separate guardian ad litem;
(2) [C]onsent on behalf of the ward to an abortion, sterilization,
psychosurgery, or removal of bodily organs except when necessary to
preserve the life or prevent serious impairment of the physical health of
the ward;
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State
Decision-Making Authority
Restrictions on Decision-Making Authority
(3) [C]onsent on behalf of the ward to the withholding of lifesaving
medical procedures; however, a guardian is not required to oppose the
cessation or withholding of lifesaving medical procedures;
(4) [C]onsent on behalf of the ward to the performance of an
experimental medical procedure or to participation in a medical
experiment not intended to preserve the life or prevent serious
impairment of the physical health of the ward.
§ 14-5312. General powers and duties of guardian
§ 14-5312.01. Inpatient treatment; rights and duties of ward and
guardian
A. [A] guardian has the following powers and duties, except as
modified by order of the court:
AZ
Ariz. Rev.
Stat.
3. A guardian may give any consents or approvals that may be
necessary to enable the ward to receive medical or other professional
care, counsel, treatment or service.
B. On clear and convincing evidence that the ward is incapacitated as a
result of a mental disorder . . . and is likely to be in need of inpatient
mental health care and treatment . . . the court may authorize a guardian
appointed pursuant to this title to give consent for the ward to receive
inpatient mental health care and treatment.
§ 14-5303. Procedure for court appointment of a guardian of an
alleged incapacitated person
C. The court shall limit the guardian's authority to what is reasonably
necessary to obtain the care required for the ward in the least restrictive
treatment alternative.
B. The petition shall contain a statement that the authority granted to
the guardian may include the authority to withhold or withdraw life
sustaining treatment, including artificial food and fluid
§ 28-65-302. Decisions requiring court approval
9. A guardian shall make reasonable efforts to secure appropriate
medical and psychological care and social services for the ward.
Not addressed.
(a) No guardian appointed [(1) prior, (2) on or after October 1, 2001],
shall make any of the following decisions without filing a petition and
receiving express court approval:
AR
(A) Consent on behalf of the incapacitated person to abortion,
sterilization, psychosurgery, or removal of bodily organs except when
necessary in a situation threatening the life of the incapacitated;
Ark. Code
Ann.
ABA Commission on Law & Aging
D. Within 48 hours after placement of the ward . . . the guardian shall give
notice of this action to the ward’s attorney . . . If requested by the attorney,
the court shall hold a hearing on the appropriateness of the placement
within three days after receiving that request.
(B) Consent to withholding life-saving treatment;
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(C) Authorize experimental medical procedures
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State
Decision-Making Authority
Restrictions on Decision-Making Authority
(b) [Section (a)(2) shall not apply to written requests under §20-17-214,
where a guardian (appointed on or after October 1, 2001) may execute a
health care declaration or proxy.
§ 28-65-303. Institutionalization of ward
(a)(1) The Guardian must petition the court to get permission to commit
the ward to a state hospital.
§ 2355. Medical treatment of conservatee adjudicated to lack
capacity to make health care decisions
§ 2355. Medical treatment of conservatee adjudicated to lack
capacity to make health care decisions
(a) If the conservatee has been adjudicated to lack the capacity to
make health care decisions, the conservator has the exclusive authority
to make health care decisions for the conservatee that the conservator
in good faith based on medical advice determines to be necessary.
(b) If prior to the establishment of the conservatorship the conservatee
was an adherent of a religion whose tenets and practices call for reliance
on prayer alone for healing, the treatment required by the conservator
under the provisions of this section shall be by an accredited practitioner
of that religion.
§ 2356. Limitations on application of chapter
(a) No ward or conservatee may be placed in a mental health treatment
facility under this division against the will of the ward or conservatee.
[Requires compliance with the mental health commitment statute.]
CA
(b) No experimental drug . . . may be prescribed for or administered to a
ward or conservatee under this division. [Consent is determined under
§2355.]
Cal. Prob.
Code
(c) No convulsive treatment . . . may be performed on a ward or
conservatee under this division.
§ 2356.5. Dementia; placement in secured facility; administration of
medication; procedures; application
(b) [A] conservator may authorize the placement of a conservatee in a
secured perimeter residential care facility for the elderly . . . or a locked
and secured nursing facility which specializes in the care and treatment of
people with dementia . . . and which has a care plan . . . upon a court's
finding, by clear and convincing evidence, of all of the following:
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State
Decision-Making Authority
Restrictions on Decision-Making Authority
(1) The conservatee has dementia, [as in the "Diagnostic and Statistical
Manual of Mental Disorders].
(2) The conservatee lacks the capacity to give informed consent to this
placement and has at least one mental function deficit . . . [that]
significantly impairs . . . ability to understand and appreciate the
consequences of his or her actions.
(3) The conservatee needs or would benefit from a restricted and secure
environment, as demonstrated by evidence presented by the physician or
psychologist.
(4) The court finds that the proposed placement in a locked facility is the
least restrictive placement appropriate.
(c) [A] conservator of a person may authorize the administration of
medications appropriate for the care and treatment of dementia, upon a
court's finding, by clear and convincing evidence, of all of the following:
(1) The conservatee has dementia, [as in the "Diagnostic and Statistical
Manual of Mental Disorders.]
(2) The conservatee lacks the capacity to give informed consent to the
administration of medications appropriate to the care of dementia, and
has at least one mental function deficit [that] significantly impairs…ability
to understand and appreciate the consequences of his or her actions.
(3) The conservatee needs or would benefit from appropriate medication
as demonstrated by evidence presented by the physician or psychologist.
§ 2357. Court ordered medical treatment
(b) If the ward or conservatee requires medical treatment for an existing
or continuing medical condition which is not authorized to be performed
upon the ward or conservatee under Section 2252, 2353, 2354, or 2355,
and the ward or conservatee is unable to give an informed consent to such
medical treatment, the guardian or conservator may petition the court
under this section for an order.
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State
CO
Colo. Rev.
Stat. Ann.
Decision-Making Authority
§ 15-14-314. Duties of guardian
Restrictions on Decision-Making Authority
§ 15-14-316. Rights and immunities of guardian--limitations
(1) Except as otherwise limited by the court, a guardian shall make
decisions regarding the ward's support, care, education, health, and
welfare.
(4) A guardian may not initiate the commitment of a ward to a mental
health care institution or facility except in accordance with the state's
procedure for involuntary civil commitment. To obtain hospital or
institutional care and treatment for mental illness of a ward, a guardian
shall proceed as provided under article 65 of title 27, C.R.S. To obtain care
and treatment from an approved service agency as defined in section 2710.5-102, C.R.S., for a ward with developmental disabilities, a guardian
shall proceed under article 10.5 of title 27, C.R.S. To obtain care and
treatment for alcoholism or substance abuse, a guardian shall proceed as
provided under article 80 of title 27, C.R.S. No guardian shall have the
authority to consent to any such care or treatment against the will of the
ward.
§ 15-14-315. Powers of guardian
(1) Subject to the limitations set forth in section 15-14-316 and except
as otherwise limited by the court, a guardian may:
(d) Consent to medical or other care, treatment, or service for the ward
§ 45a-656. Duties of conservator of the person
§ 45a-656. Duties of conservator of the person
(a) The conservator of the person shall have the duties and authority
expressly assigned by the court pursuant to section 45a-650, which
duties and authority may include:
(3) the authority to give consent for the conserved person's medical or
other professional care, counsel, treatment or service.
§ 45a-656b. Duties of conservator re real and personal property and
placement of conserved person
(b) If the conservator determines it is necessary to cause the person
under conservatorship to be placed in an institution for long-term care or
to change the residence of the person under conservatorship, the
conservator shall file a report of the intended placement in an institution
for long-term care or change of residence with the Probate Court that
appointed the conservator. The court shall hold a hearing to consider the
report. If, after the hearing, the conservator obtains permission of the
court for the intended placement or change of residence, the conservator
may make such a placement or implement such a change of residence….
[I]f the placement in an institution for long-term care results from the
discharge from a hospital of a person under conservatorship, the
conservator may make the placement before filing the report.
CT
Conn. Gen.
Stat. Ann.
ABA Commission on Law & Aging
(d) The conservator of the person shall not have the power or authority to
cause the respondent to be committed to any institution for the treatment
of the mentally ill except under the provisions of [mental health
commitment laws].
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(g) A person under conservatorship may waive the right to a hearing
required under this section if the attorney for the person under
conservatorship has consulted with the person under conservatorship
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Tit. 12, § 3922. General powers and duties of the guardian of the
person
(b) [A] guardian of the person has the following powers and duties:
DE
Del. Code
Ann.
(3) The guardian may give such consent or approval as may be
necessary to enable the disabled person to receive medical or other
professional care, counsel, treatment or service and shall have power
to authorize release of medical records.
Restrictions on Decision-Making Authority
and the attorney has filed with the court a record of the waiver.
Tit. 12, § 3922. General powers and duties of the guardian of the
person
(b) [A] guardian of the person has the following powers and duties:
(1) The guardian may not waive any right of the disabled person
respecting involuntary commitment to any facility for the treatment of
mental illness or deficiency.
(3) The guardian shall not unreasonably withhold such consent or
approval nor withhold such consent or approval on account of personal
beliefs held by the guardian or the disabled person.
Tit. 16, § 2506. Decisions by guardian
A guardian… may not revoke the adult disabled person's advance healthcare directive unless the appointing court expressly so authorizes.
§ 21-2047. Powers and duties of general guardian and limited
guardian
§ 21-2047.01. Limitations on temporary, limited, and general
guardians
(b) A general guardian or limited guardian may:
DC
(4) Consent to medical examination and medical or other professional
care, treatment, or advice for the ward.
D.C. Code
Ann.
ABA Commission on Law & Aging
A guardian shall not have the power:
(1) To consent to an abortion, sterilization, psycho-surgery, or removal of
a bodily organ except to preserve the life or prevent the immediate
serious impairment of the physical health of the incapacitated individual,
unless the power to consent is expressly set forth in the order of
appointment or after subsequent hearing and order of the court;
(2) To consent to convulsive therapy, experimental treatment or research,
or behavior modification programs involving aversive stimuli, unless the
power to consent is expressly set forth in the order of appointment or
after subsequent hearing and order of the court;
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(3) To consent to the withholding of non-emergency, life-saving, medical
procedures unless it appears that the incapacitated person would have
consented to the withholding of these procedures and the power to
consent is expressly set forth in the order of appointment or after
subsequent hearing and order of the court;
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Decision-Making Authority
Restrictions on Decision-Making Authority
§ 744.3215. Rights of persons determined incapacitated
(4) To consent to the involuntary or voluntary civil commitment of an
incapacitated individual who is alleged to be mentally ill and dangerous
under any provision or proceeding occurring under [D.C. statute].
§ 744.3215. Rights of persons determined incapacitated
(3) Rights that may be removed from a person by an order
determining incapacity and which may be delegated to the guardian
include the right:
(4) Without first obtaining specific authority from the court, as described
in s. 744.3725, a guardian may not:
(a) Commit the ward to a facility, institution, or licensed service provider
without formal placement proceeding, pursuant to chapter 393, chapter
394, or chapter 397.
(f) To consent to medical and mental health treatment.
(b) Consent on behalf of the ward to the performance on the ward of any
experimental biomedical or behavioral procedure or to the participation
by the ward in any biomedical or behavioral experiment. The court may
permit such performance or participation only if:
FL
Fla. Stat.
Ann.
1. It is of direct benefit to, and is intended to preserve the life of or prevent
serious impairment to the mental or physical health of the ward; or
2. It is intended to assist the ward to develop or regain his or her abilities.
(e) Consent on behalf of the ward to the performance of a sterilization or
abortion procedure on the ward.
§ 744.3115. Advance directives for health care
GA
Ga. Code
Ann.
If any advance directive exists, the court shall specify in its order and
letters of guardianship what authority, if any, the guardian shall exercise
over the surrogate.
§ 29-4-23. General powers of guardian; additional powers;
coordination with conservator
Restrictions not addressed.
(a) Unless inconsistent with the terms of any court order relating to
the guardianship, a guardian may:
(2) Subject to Chapters 9, 20, and 36 of Title 31 and any other pertinent
law, give any consents or approvals that may be necessary for medical
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State
HI
Haw. Rev.
Stat.
Decision-Making Authority
or other professional care, counsel, treatment, or service for the ward.
Restrictions on Decision-Making Authority
§ 560:5-315. Powers of guardian
§ 560:5-316. Rights and immunities of guardian; limitations
(a) Except as otherwise limited by the court, a guardian may:
(d) A guardian shall not initiate the commitment of a ward to a mental
health-care institution except in accordance with the State's procedure for
involuntary civil commitment.
(4) Consent to medical or other care, treatment, or service for the
ward.
[§ 560:5-602]. Sterilization of wards
In no event … shall wards be sterilized without court approval … unless
sterilization occurs as part of emergency medical treatment.
§ 15-5-312. General powers and duties of guardian
ID
Idaho Code
Ann.
IL
Restrictions not addressed.
(1) [A] guardian has the following powers and duties:
(c) A guardian may give any consents or approvals that may be
necessary to enable the ward to receive medical or other professional
care, counsel, treatment or service.
§ 5/11a-17. Duties of personal guardian
§ 5/11a-14.1. Residential placement
(d) A guardian acting as a surrogate decision maker under the Health
Care Surrogate Act shall have all the rights of a surrogate under that
Act without court order including the right to make medical treatment
decisions such as decisions to forgo or withdraw life-sustaining
treatment.
No guardian appointed under this Article, except for duly appointed
Public Guardians and the Office of State Guardian, shall have the power,
unless specified by court order, to place his ward in a residential facility.
755 Ill.
Comp. Stat.
§ 5/11a-17. Duties of personal guardian
(a) A guardian of the person may not admit a ward to a mental health
facility except at the ward's request as provided in Article IV of the Mental
Health and Developmental Disabilities Code and unless the ward has the
capacity to consent to such admission as provided in Article IV of the
Mental Health and Developmental Disabilities Code.
(d) Any decisions by the guardian to forgo or withdraw life-sustaining
treatment that are not authorized under the Health Care Surrogate Act
shall require a court order.
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State
Decision-Making Authority
Restrictions on Decision-Making Authority
§ 5/11a-17.1. Sterilization of ward
(a) A guardian of the person shall not consent to the sterilization of the
ward without first obtaining an order from the court granting the
guardian the authority to provide consent.
§ 29-3-8-2. Powers which guardian may exercise
IN
Ind. Code
Ann.
IA
Iowa Code
Ann.
(a) The guardian of a minor may exercise all of the powers required to
perform the guardian's responsibilities, including the following:
§ 30-5-3-4. Guardians; nomination; appointment; powers and duties;
amendment or revocation of power; hearing; notice
(4) The power to consent to medical or other professional care and
treatment for the minor's health and welfare.
(b) A guardian has no power to revoke or amend a valid power of
attorney unless specifically directed to revoke or amend the power of
attorney by a court order on behalf of the principal. A court may not enter
an order to revoke or amend a power of attorney without a hearing.
§ 633.635. Responsibilities of guardian
§ 633.635. Responsibilities of guardian
(1) Based upon the evidence produced at the hearing, the court may
grant a guardian the following powers and duties which may be
exercised without prior court approval:
(2) A guardian may be granted the following powers which may only be
exercised upon court approval:
(b) The guardian (other than a temporary guardian) of an
incapacitated person has all of the powers to perform the guardian's
responsibilities, including the powers with respect to the incapacitated
person and the incapacitated person's property regardless of where
the property is located, that are granted to the guardian of a minor
enumerated in subsection (a)(1) through (a)(9).
d. Ensuring the ward receives necessary emergency medical services.
a. Changing, at the guardian's request, the ward's permanent residence if
the proposed new residence is more restrictive of the ward's liberties
than the current residence.
KS
e. Ensuring the ward receives professional care, counseling, treatment,
or services as needed. If necessitated by the physical or mental
disability of the ward, the provision of professional care, counseling,
treatment, or services limited to the provision of routine physical and
dental examinations and procedures under anesthesia is included, if
the anesthesia is provided within the scope of the health care
practitioner's scope of practice.
Kan. Stat.
Ann.
§ 59-3075. Guardian's duties, responsibilities, powers and
authorities
§ 59-3075. Guardian's duties, responsibilities, powers and
authorities
(b) A guardian shall have the following general duties, responsibilities,
(e) A guardian shall not have the power [to consent to]:
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b. Arranging the provision of major elective surgery or any other nonemergency major medical procedure.
c. Consent to the withholding or withdrawal of life-sustaining procedures
in accordance with chapter 144A.
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Decision-Making Authority
powers and authorities:
Restrictions on Decision-Making Authority
(5) to assure that the ward receives any necessary and reasonably
available medical care, consistent with the provisions of K.S.A. 593077, and amendments thereto, when applicable, and any reasonably
available nonmedical care or other services as may be needed to
preserve the health of the ward or to assist the ward to develop or
retain skills and abilities;
(4) any psychosurgery, removal of any bodily organ, or amputation of any
limb, unless such . . . has been approved in advance by the court, except in
an emergency and when necessary to preserve the life of the ward or to
prevent serious and irreparable impairment to the physical health of the
ward;
(5) the sterilization of the ward, unless approved by the court following a
due process hearing held for the purposes of determining whether to
approve such, and during which hearing the ward is represented by an
attorney appointed by the court;
(6) performance of any experimental biomedical or behavioral procedure
[or experiment] on the ward . . . without the prior review and approval of
such by either an institutional review board . . . [or] review committee
established . . . . [to determine] whether the proposed procedure or
experiment:
(A) Does not involve any significant risk of harm to the physical or mental
health of the ward, or the use of aversive stimulants, and is intended to
preserve the life or health of the ward or to assist the ward to develop or
regain skills or abilities; or
(B) Involves a significant risk of harm to the physical or mental health of
the ward, or the use of an aversive stimulant, but that the conducting of
the proposed procedure or experiment is intended either to preserve the
life of the ward, or to significantly improve the quality of life of the ward,
or to assist the ward to develop or regain significant skills or abilities, and
that the guardian has been fully informed concerning the potential risks
and benefits of the proposed procedure or experiment or of any aversive
stimulant proposed to be used, and as to how and under what
circumstances the aversive stimulant may be used, and has specifically
consented to such;
(7) the withholding or withdrawal of life-saving or life sustaining medical
care, treatment, services or procedures, except:
(A) In accordance with the provisions of any declaration of the ward
[under K.S.A. 65-28,101 through 65-28,109]; or
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(B) if the ward, prior to the court's appointment of a guardian [under
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section 18], shall have executed a durable power of attorney for health
care decisions [under K.S.A. 58-629], and such shall not have been
revoked . . . then the guardian shall have authority . . . as provided for
therein, even if the guardian has revoked or otherwise amended that
power of attorney [under K.S.A. 58-627], or the guardian may allow the
agent appointed by the ward to act on the ward's behalf if the guardian
has not revoked or otherwise amended that power of attorney; or
(C) in the circumstances where the ward's treating physician shall certify
in writing to the guardian that the ward is in a persistent vegetative state
or is suffering from an illness or other medical condition for which further
treatment, other than for the relief of pain, would not likely prolong the
life . . . other than by artificial means, nor . . . likely to restore . . . any
significant degree of capabilities beyond those the ward currently
possesses, and which opinion is concurred in by…a second physician or . . .
medical ethics or similar committee . . . Such written certification shall be
approved by an order issued by the court;
KY
Ky. Rev.
Stat. Ann.
LA
§ 387.660. Specific powers and duties of guardian
(9) to place the ward in a treatment facility as defined in K.S.A. 59-3077,
and amendments thereto, except if authorized by the court as provided
for therein.
A guardian of a disabled person shall have the following powers and
duties, except as modified by order of the court:
A guardian of a disabled person shall have the following powers and
duties, except as modified by order of the court:
Not addressed.
Art. 4566. Management of affairs of the interdict
§ 387.660. Specific powers and duties of guardian
(3) To give any necessary consent or approval to enable the ward to
receive medical or other professional care, counsel, treatment or
service.
(3) Except that a guardian may not consent on behalf of a ward to an
abortion, sterilization, psychosurgery, removal of a bodily organ, or
amputation of a limb unless the procedure is first approved by order of
the court or is necessary, in an emergency situation, to preserve the life or
prevent serious impairment of the physical health of the ward.
[A. The relationship between interdict and curator is the same as that
between minor and tutor except]
La. Code
Civ. Proc.
Ann.
ABA Commission on Law & Aging
G. A curator may not consent to an abortion or sterilization of the interdict
without prior court authorization.
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Restrictions on Decision-Making Authority
H. Neither a curator nor a court shall admit or commit an interdict to a
mental health treatment facility except in accordance with the provisions
of R.S. 28:50 through 64.
I. A curator appointed in an order of temporary interdiction shall have no
authority to admit the defendant to a residential or long- term care facility
in the absence of good cause shown at a contradictory hearing.
Tit. 18-A, § 5-312. General powers and duties of guardian
Tit. 18-A, § 5-312. General powers and duties of guardian
(a) a guardian has the following powers and duties, except as modified
by order of the court:
ME
Me. Rev.
Stat. Ann.
MD
Md. Code
Ann., Est. &
Trusts
(1) To the extent that it is consistent with the terms of any order by a
court of competent jurisdiction relating to detention or commitment of
the ward, he is entitled to custody of the person of his ward and may
establish the ward's place of abode within or without this State, and
may place the ward in any hospital or other institution for care in the
same manner as otherwise provided by law.
(3) A guardian may give or withhold consents or approvals related to
medical or other professional care, counsel, treatment or service for
the ward. A decision of a guardian to withhold or withdraw lifesustaining treatment is effective without court approval unless the
guardian's decision is made against the advice of the ward's primary
physician and in the absence of instructions from the ward made while
the ward had capacity.
(a)(3) A decision of a guardian to withhold or withdraw life-sustaining
treatment is effective without court approval unless the guardian's
decision is made against the advice of the ward's primary physician and in
the absence of instructions from the ward made while the ward had
capacity.
§ 13-708. Functions of guardian
§ 13-708. Functions of guardian
(b) [T]he rights, duties, and powers which the court may order include,
but are not limited to:
(b)(2) The right to custody of the disabled person and to establish his
place of abode within and without the State, provided there is court
authorization for any change in the classification of abode, except that no
one may be committed to a mental facility without an involuntary
commitment proceeding as provided by law;
(8) The power to give necessary consent or approval for:
(i) Medical or other professional care, counsel, treatment, or service,
including admission to a hospital or nursing home or transfer from one
medical facility to another;
(ii) Withholding medical or other professional care, counsel, treatment,
or service; and
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(c)(1) Notwithstanding the powers conferred to a guardian under
subsection (b) (8) of this section, and except as provided in paragraph (2)
of this subsection, where a medical procedure involves, or would involve,
a substantial risk to the life of a disabled person, the court must authorize
a guardian's consent or approval for:
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(iii) Withdrawing medical or other professional care, counsel,
treatment, or service.
(i) The medical procedure;
(ii) Withholding the medical procedure; or
(iii) Withdrawing the medical procedure that involves, or would involve, a
substantial risk to the life of the disabled person.
(2) The court may, upon such conditions as the court considers
appropriate, authorize a guardian to make a decision regarding medical
procedures that involve a substantial risk to life without further court
authorization, if:
(i) The disabled person has executed an advance directive in accordance
with Title 5, Subtitle 6 of the Health-General Article that authorizes the
guardian to consent to the provision, withholding or withdrawal of a
medical procedure that involves a substantial risk to life but does not
appoint a health care agent; or
(ii) The guardian is also the disabled person's spouse, adult child, parent,
adult brother or sister, or adult grandchild.
(3) A petition seeking the authorization of a court that a life-sustaining
procedure be withheld or withdrawn is subject to the provisions of §§
13-711 through 13-713 of this subtitle.
§ 5-309. Powers, duties, rights and immunities of guardians,
limitations
MA
Mass. Gen.
Laws Ann.
ch. 190B
§ 5-309. Powers, duties, rights and immunities of guardians,
limitations
In addition, a guardian has the duties, powers and responsibilities of a
guardian of a minor as described in section 5-209(b), (c), (d) and (e).
§ 5-209. Powers, duties, rights and immunities of guardian of
minor; limitations
(g) No guardian shall have the authority to admit an incapacitated person
to a nursing facility, except upon a specific finding by the court that such
admission is in the incapacitated person's best interest, unless:
(c) A guardian of a ward or incapacitated person may:
(3) if consistent with the terms of any order by a court of competent
jurisdiction and sections 5-306A and 5-309, consent to medical or
other professional care, treatment, or advice for the ward or
incapacitated person.
ABA Commission on Law & Aging
(f) No guardian shall be given the authority under this chapter to admit or
commit an incapacitated person to a mental health facility or a mental
retardation facility.
(1) the admission shall not exceed 60 days;
13
(2) any person authorized to sign a medical certificate recommends such
admission;
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(3) neither any interested person nor the incapacitated person objects;
(4) on or before such admission, a written notice of intent to admit the
incapacitated person to a nursing facility for short term-services has been
filed by the guardian in the appointing court and a copy thereof has been
served in-hand on the incapacitated person and provided to the nursing
facility; and
(5) the incapacitated person is represented by counsel or counsel is
appointed forthwith.
§ 5-306A. Substituted judgment
MI
Mich.
Comp.
Laws Ann.
§ 700.5314. Powers and duties of guardian
(a) No guardian, temporary guardian or special guardian of a minor or an
incapacitated person shall have the authority to consent to treatment for
which substituted judgment determination may be required, provided
that the court shall authorize such treatment when it (i) specifically finds
using the substituted judgment standard that the person, if not
incapacitated, would consent to such treatment and (ii) specifically
approves and authorizes a treatment plan and endorses said plan in its
order or decree.
[A] guardian has all of the following powers and duties, to the extent
granted by court order:
[A] guardian has all of the following powers and duties, to the extent
granted by court order:
§ 700.5314. Powers and duties of guardian
(c) The power to give the consent or approval that is necessary to
enable the ward to receive medical or other professional care, counsel,
treatment, or service. The power of a guardian to execute a do-notresuscitate order under subdivision (d) does not affect or limit the
power of a guardian to consent to a physician's order to withhold
resuscitative measures in a hospital.
ABA Commission on Law & Aging
14
(a) The custody of the person of the ward and the power to establish the
ward's place of residence within or without this state. The guardian shall
visit the ward within 3 months after the guardian's appointment and not
less than once within 3 months after each previous visit. The guardian
shall notify the court within 14 days of a change in the ward's place of
residence or a change in the guardian's place of residence.
(d) A guardian shall not execute a do-not-resuscitate order unless the
guardian does all of the following:
(i) Not more than 14 days before executing the do-not-resuscitate order,
the guardian visits the ward and, if meaningful communication is possible,
consults with the ward about executing the do-not-resuscitate order.
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Restrictions on Decision-Making Authority
§ 524.5-313. Powers and duties of guardian
(ii) The guardian consults directly with the ward's attending physician as
to the specific medical indications that warrant the do-not-resuscitate
order.
(c) The duties and powers of a guardian or those which the court may
grant to a guardian include, but are not limited to:
(a) A ward may not be admitted to a regional treatment center by the
guardian except:
§ 524.5-313. Powers and duties of guardian
(4) (i) the power to give any necessary consent to enable the ward to
receive necessary medical or other professional care, counsel,
treatment, or service.
(i) after a hearing under chapter 253B;
(ii) for outpatient services; or
(iii) for the purpose of receiving temporary care for a specific period of
time not to exceed 90 days in any calendar year;
(c)(4)(i) [N]o guardian may give consent for psychosurgery, electroshock,
sterilization, or experimental treatment of any kind unless the procedure
is first approved by order of the court as provided in this clause. The
guardian shall not consent to any medical care for the ward which violates
the known conscientious, religious, or moral belief of the ward;
MN
Minn. Stat.
Ann.
(ii) a guardian who believes a procedure described in item (i) requiring
prior court approval to be necessary for the proper care of the ward, shall
petition the court for an order and, in the case of a public guardianship
under chapter 252A, obtain the written recommendation of the
commissioner of human services.
(iii) in the case of a petition for sterilization of a developmentally disabled
ward, the court shall appoint a licensed physician, a psychologist who is
qualified in the diagnosis and treatment of developmental disability, and a
social worker who is familiar with the ward's social history and
adjustment or the case manager for the ward to examine or evaluate the
ward and to provide written reports to the court.
524.5-315. Rights and immunities of guardian; limitations
(c) A guardian may not revoke the health care directive of a ward or
protected person absent a court order.
ABA Commission on Law & Aging
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State
MS
Miss. Code
Ann.
Decision-Making Authority
Restrictions on Decision-Making Authority
(d) A guardian may not initiate the commitment of a ward to an
institution except in accordance with section 524.5-313.
§ 41-41-213. Guardians, wards, agents
Not addressed.
475.123. Medical and surgical procedures--consent—emergency
(1) No medical or surgical procedure shall be performed on any ward
unless consent is obtained from the guardian of his person
(5) No guardian of the person shall have authority to seek admission of
the guardian’s ward to a mental health or mental retardation facility for
more than thirty days for any purpose without court order except as
otherwise provided by law.
(1) Pursuant to an application alleging that the admission of the ward to a
particular mental health or mental retardation facility is appropriate and
in the best interest of the ward, the court may authorize . . . to admit the
ward. Such application shall be accompanied by a physician’s statement
setting forth the factual basis for the need for continued admission
including a statement of the ward’s current diagnosis, plan of care,
treatment or habilitation and the probable duration of the admission.
Mo. Ann.
Stat.
(2) [The court shall issue an order authorizing the guardian to admit the
ward to such facility under 632.120, RSMo or 633.120 RSMo].
§ 72-5-321. Powers and duties of guardian of incapacitated
person
Mont. Code
Ann.
§ 475.120. General powers and duties of guardian of the person-social service agency acting on behalf of ward, requirements
§ 475.121. Admission to mental health or developmental disability
facilities
MO
MT
(1) A guardian shall comply with the ward's individual instructions and
may not revoke the ward's advance health-care directive unless the
appointing court expressly so authorizes.
§ 72-5-321. Powers and duties of guardian of incapacitated person
(2) [A] full guardian has the following powers and duties, except as
limited by order of the court:
(c) A full guardian may give any consents or approvals that may be
necessary to enable the ward to receive medical or other professional
care, counsel, treatment, or service.
ABA Commission on Law & Aging
16
(2)(3) This subsection (2)(c) does not authorize a full guardian to consent
to the withholding or withdrawal of life-sustaining treatment or to a do
not resuscitate order if the full guardian does not have authority to
consent pursuant to the Montana Rights of the Terminally Ill Act, Title 50,
chapter 9, or to the do not resuscitate provisions of Title 50, chapter 10. A
full guardian may petition the court for authority to consent to the
withholding or withdrawal of life-sustaining treatment or to a do not
resuscitate order. The court may not grant that authority if it conflicts
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with the ward's wishes to the extent that those wishes can be determined.
§ 72-5-322. Petition of guardian for treatment of ward
(1) If a guardian believes that the guardian’s ward should receive medical
treatment for a mental disorder and the ward refuses, the court may, upon
petition by the guardian, grant an order for evaluation or treatment.
However, the order may not forcibly detain the ward against the ward’s
will for more than 72 hours.
NE
(2) The ward is entitled to the assignment of counsel, in accordance with
the provisions of the Montana Public Defender Act, and a hearing along
with all the other rights guaranteed to a person with a mental disorder
and who requires commitment under [civil commitment statutes].
Not addressed.
§ 159.079. General functions of guardian of person; establishment
or change of ward’s residence by guardian
1. [A] guardian of the person . . . shall perform the duties necessary for
the proper care, maintenance, education and support of the ward,
including, without limitation, the following:
NV
(b) Authorizing medical, surgical, dental, psychiatric, psychological,
hygienic or other remedial care and treatment for the ward.
Restrictions not addressed.
§ 159.0805. Approval of court required before guardian may consent
to certain treatment of or experiment on ward; conditions for
approval
1. Except as otherwise provided in subsection 2, a guardian shall not
consent to:
(a) The experimental medical, biomedical or behavioral treatment of a
ward;
(b) The sterilization of a ward; or
Nev. Rev.
Stat. Ann.
(c) The participation of a ward in any biomedical or behavioral
experiment.
2. The guardian may consent to and commence any treatment or
experiment described in subsection 1 if the guardian applies to and
obtains from the court authority to consent to and commence the
treatment or experiment.
3. The court may authorize the guardian to consent to and commence any
treatment or experiment described in subsection 1 only if the treatment
or experiment:
ABA Commission on Law & Aging
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(a) Is of direct benefit to, and intended to preserve the life of or prevent
serious impairment to the mental or physical health of, the ward; or
(b) Is intended to assist the ward to develop or regain the ward's abilities.
6. A guardian of the person must file a petition with the court requesting
authorization to move or place a ward in a secured residential long-term
care facility unless:
(a) The court has previously granted the guardian authority to move or
place the ward in such a facility based on findings made when the court
appointed the guardian; or
§ 464-A:25. General Powers and Duties of Guardian of the Person.
(d) A guardian of the person may give any necessary consent or
approval to enable the ward to receive medical or other professional
care, counsel, treatment, or service or may withhold consent for a
specific treatment
§ 464-A:25. General Powers and Duties of Guardian of the Person.
I. A guardian of an incapacitated person has the following powers and
duties:
(a) [T]he guardian shall be entitled to custody of the ward and may
establish the ward’s place of abode within or without this state.
Admission to a state institution shall be in accordance with the following:
(1) [W]ith prior approval of the probate court if, following notice and
hearing, the court finds beyond a reasonable doubt that the placement is
in the ward’s best interest and is the least restrictive placement available.
NH
N.H. Rev.
Stat. Ann.
ABA Commission on Law & Aging
(b) The move or placement is made pursuant to a written
recommendation by a licensed physician, a physician employed by the
Department of Veterans Affairs, a licensed social worker or an employee
of a county or state office for protective services.
(2) [W]ithout prior approval . . . upon written certification by a physician
licensed in the state of New Hampshire, or, in the case of placement in
New Hampshire hospital, by a psychiatrist licensed in the state of New
Hampshire, that the placement is in the ward's best interest and is the
least restrictive placement available. Within 36 hours, excluding days
when the court is closed, of such an admission of a ward to a state
institution, the guardian shall submit [notice and rationale for the
admission], together with a copy of the certificate by the physician or
psychiatrist.
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Decision-Making Authority
Restrictions on Decision-Making Authority
(c) No guardian may give consent for psychosurgery, electro-convulsive
therapy, sterilization, or experimental treatment of any kind unless the
procedure is first approved by order of the probate court.
(f) Upon a finding that ensuring treatment compliance is in the best
interest of a ward, the probate court may authorize a guardian appointed
. . . to request the assistance of any law enforcement official to restrain or
transport, or both, the ward to receive appropriate treatment.
§ 3B:12-57. Powers and duties of a guardian of the person of a
ward
NJ
N.J. Stat.
Ann.
§ 3B:12-56. Powers, rights and duties of a guardian of the person of a
ward generally
(f) [T]he guardian shall:
(4) subject to the provisions of subsection c. of N.J.S.3B:12-56, give or
withhold any consents or approvals that may be necessary to enable
the ward to receive medical or other professional care, counsel,
treatment or service;
§ 45-5-312. General powers and duties of the limited guardian
and guardian
NM
N.M. Stat.
Ann.
§ 24-7A-6. [Mental health] decisions by guardian
B. In particular and without qualifying the foregoing, a guardian or the
guardian's replacement has the following powers and duties, except as
modified by order of the court:
(3) if no agent is entitled to make health-care decisions for the
incapacitated person under the provisions of the Uniform Health-Care
Decisions Act, then the guardian shall make health-care decisions for
the incapacitated person in accordance with the provisions of that act.
In exercising health-care powers, a guardian may consent or withhold
consent that may be necessary to enable the incapacitated person to
receive or refuse medical or other professional care, counsel, treatment
or service. That decision shall be made in accordance with the values of
the incapacitated person, if known, or the best interests of the
incapacitated person if the values are not known;
ABA Commission on Law & Aging
(d) [I]f the ward objects to the initiation of voluntary admission for
psychiatric treatment or to the continuation of that voluntary admission,
the State's procedures for involuntary commitment pursuant to P.L.1987,
c. 116 (C.30:4-27.1 et seq.) shall apply. If the ward objects to any other
decision of the guardian of the ward pursuant to this section, this
objection shall be brought to the attention of the Superior Court, Chancery
Division, Probate Part, which may, in its discretion, appoint an attorney or
guardian ad litem for the ward, hold a hearing or enter such orders as may
be appropriate in the circumstances.
19
A. A guardian shall comply with the protected person's individual
instructions made while the protected person had capacity and shall not
disregard the protected person's preferences contained in an advance
health-care directive unless the appointing court expressly so authorizes
after notice to the agent, if any, and the protected person. The court may
disregard such preferences if it finds by clear and convincing evidence
that the preferences do not accurately reflect the free choice of the
protected person at the time of making the individual instructions or that
the protected person revoked the individual instructions while the
protected person had capacity.
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§ 24-7A-6. [Mental health] decisions by guardian
Restrictions on Decision-Making Authority
C. Subject to the provisions of Subsections A and B of this section, a
health-care decision made by a guardian for the protected person is
effective without judicial approval, if the appointing court has
expressly authorized the guardian to make health-care decisions for
the protected person, in accordance with the provisions of Section 455-312 NMSA 1978, after notice to the protected person and any agent.
NY
N.Y.
Mental
Hygiene
Law
N.Y.
Surr. Ct.
Proc. Act
§ 81.22 Powers of guardian; personal needs
§ 81.22 Powers of guardian; personal needs
(a) [T]he court may grant to the guardian powers necessary and
sufficient to provide for the personal needs of the incapacitated person.
Those powers which may be granted include, but are not limited to, the
power to:
(b) No guardian may:
8. (i) for decisions in hospitals as defined by subdivision eighteen of
section twenty-nine hundred ninety-four-a of the public health law, act
as the patient's surrogate pursuant to and subject to article twentynine-CC of the public health law, and (ii) in all other circumstances, to
consent to or refuse generally accepted routine or major medical or
dental treatment, subject to the decision-making standard in
subdivision four of section twenty-nine hundred ninety-four-d of the
public health law;
§ 1750-b. Health care decisions for mentally retarded persons
1. Unless specifically prohibited by the court after consideration of the
determination, if any, regarding a mentally retarded person's capacity
to make health care decisions, which is required by section seventeen
hundred fifty of this article, the guardian of such person appointed
pursuant to section seventeen hundred fifty of this article shall have
the authority to make any and all health care decisions, as defined by
subdivision six of section twenty-nine hundred eighty of the public
health law, on behalf of the mentally retarded person that such person
could make if such person had capacity. Such decisions may include
decisions to withhold or withdraw life-sustaining treatment.
1. consent to the voluntary formal or informal admission of the
incapacitated person to a mental hygiene facility under article nine or
fifteen of this chapter or to a chemical dependence facility under article
twenty-two of this chapter;
2. revoke any appointment or delegation by the incapacitated person
pursuant to . . . or any living will.
§ 1750-b. Health care decisions for mentally retarded persons
4. Life-sustaining treatment. The guardian shall have the affirmative
obligation to advocate for the full and efficacious provision of health care,
including life-sustaining treatment. In the event that a guardian makes a
decision to withdraw or withhold life-sustaining treatment from a
mentally retarded person:
(a) The attending physician . . . must confirm to a reasonable degree of
medical certainty that the mentally retarded person lacks capacity to
make health care decisions.
(b) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, with the concurrence
of another physician with whom such attending physician shall consult,
must determine to a reasonable degree of medical certainty and note on
the mentally retarded person's chart that: [list of requirements].
5. Objection to health care decision.
ABA Commission on Law & Aging
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State
NC
N.C. Gen.
Stat.
ND
Decision-Making Authority
§ 35A-1241. Powers and duties of guardian of the person
Restrictions on Decision-Making Authority
(a) Suspension. A health care decision made pursuant to subdivision four
of this section shall be suspended pending judicial review, except if the
suspension would in reasonable medical judgment be likely to result in
the death of the mentally retarded person, in the event of an objection to
that decision at any time by: [list of persons, including the mentally
retarded person or a parent, or the attending physician or others].
(a) To the extent that it is not inconsistent with the terms of any order
of the clerk or any other court of competent jurisdiction, a guardian of
the person has the following powers and duties:
(a)(3) The guardian shall not, however, consent to the sterilization of a
mentally ill or mentally retarded ward unless the guardian obtains an
order from the clerk in accordance with § 35A-1245.
§ 30.1-28-12 (5-312). General powers and duties of guardian
§ 30.1-28-12 (5-312). General powers and duties of guardian
1. A guardian of an incapacitated person has only the powers and
duties specified by the court.
2. No guardian may voluntarily admit a ward to a mental health facility or
state institution for a period of more than forty-five days without a mental
health commitment proceeding or other court order . . . . Notwithstanding
the other provisions of this subsection, the guardian may readmit a ward
to a mental health facility or a state institution within sixty days of
discharge from that institution, if the original admission to the facility or
institution had been authorized by the court.
§ 35A-1241. Powers and duties of guardian of the person
(3) The guardian of the person may give any consent or approval that
may be necessary to enable the ward to receive medical, legal,
psychological, or other professional care, counsel, treatment, or
service.
N.D. Cent.
Code Ann.
4. Notwithstanding general or limited authority to make medical
decisions on behalf of the ward, no guardian may consent to
psychosurgery, abortion, sterilization, or experimental treatment of any
kind unless the procedure is first approved by order of the court.
§ 2111.13. Duties of guardian of person
OH
Ohio Rev.
Code Ann.
(C) A guardian of the person may authorize or approve the provision to
the ward of medical, health, or other professional care, counsel,
treatment, or services unless the ward or an interested party files
objections with the probate court, or the court, by rule or order,
provides otherwise.
ABA Commission on Law & Aging
21
Not addressed.
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State
Decision-Making Authority
Tit. 30, § 3-118. Duties and powers of guardian or limited
guardian
Restrictions on Decision-Making Authority
Tit. 30, §3-119. Limitation of powers of guardian
2. A guardian or limited guardian of the person, if consistent with the
terms of an order of the court, may:
b. consent to routine or necessary medical or other professional care,
treatment, or advice for the ward without liability by reason of the
consent for injury to the ward resulting from the negligence or acts of
third persons unless a parent would have been liable in the
circumstances.
OK
Or. Rev.
Stat.
a. with specific authorization of the court having jurisdiction over the
guardianship proceedings. Such authorization must be granted in a
separate order and only at such time when the ward is in need of
life-sustaining treatment.
b. as authorized by an advance directive executed [under OK Rights of
Terminally Ill or Persistently Unconscious Act]
c. as authorized by a consent not to resuscitate [under OK Do-NotResuscitate Act]
Okla. Stat.
Ann.
OR
1. No guardian shall have the power to consent on behalf of the ward to
the withholding or withdrawal of life-sustaining procedures as defined by
the Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act
from the ward, except:
3. Except in an emergency and only as necessary to preserve the life of the
ward, no guardian shall have the power to consent on behalf of the ward
to an abortion, psychosurgery, removal of a bodily organ, performance of
any experimental biomedical or behavioral procedure, or participation in
any biomedical or behavioral experiment, except with specific
authorization of the court having jurisdiction of the guardianship
proceeding;
§ 125.315. Duties and powers of guardian
5. No guardian shall have the power to consent on behalf of the ward to
placement of the ward in a facility or institution to which a person
without a guardian would have to be committed pursuant to the laws of
this state absent formal commitment proceedings in which the ward has
independent counsel.
(1) A guardian has the following powers and duties:
(1) A guardian may not authorize the sterilization of the protected person.
§ 125.320. Limitations on guardian
(c) Subject to the provisions of ORS 127.505 to 127.660 and subsection
(3) of this section, the guardian may consent, refuse consent or
withhold or withdraw consent to health care, as defined in ORS
127.505, for the protected person. A guardian is not liable solely by
reason of consent under this paragraph for any injury to the protected
ABA Commission on Law & Aging
22
(3) Before a guardian may place an adult protected person in a mental
health treatment facility, a nursing home or other residential facility, the
guardian must file a statement with the court . . . The guardian may
thereafter place the adult protected person in a mental health treatment
facility, a nursing home or other residential facility without further court
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person resulting from the negligence or acts of third persons.
(3) A guardian may consent to the withholding or withdrawing of
artificially administered nutrition and hydration for a protected person
only under the circumstances described in ORS 127.580 (1)(a), (b), (d),
(e) or (f) and, if the protected person has a medical condition specified
in ORS 127.580 (1)(b), (d), (e) or (f), the condition has been medically
confirmed.
Restrictions on Decision-Making Authority
order. If an objection is made . . . the court shall schedule a hearing on the
objection as soon as practicable.
§ 127.540. Health care representative limitations on authority
ORS 127.505 to 127.660 do not authorize an appointed health care
representative to make a health care decision with respect to any of the
following on behalf of the principal:
(1) Convulsive treatment.
(2) Psychosurgery.
(3) Sterilization.
(4) Abortion.
(5) Withholding or withdrawing of a life-sustaining procedure unless:
(a) The appointed health care representative has been given authority to
make decisions on withholding or withdrawing life-sustaining
procedures; or
(b) The principal has been medically confirmed to be in one of the
following conditions:
(A) A terminal condition.
(B) Permanently unconscious.
(C) A condition in which administration of life-sustaining procedures
would not benefit the principal's medical condition and would cause
permanent and severe pain.
(D) A progressive, debilitating illness that will be fatal and is in its
advanced stages, and the principal is consistently and permanently unable
to communicate, swallow food and water safely, care for the principal, and
recognize the principal's family and other people, and there is no
reasonable chance that the principal's underlying condition will improve.
ABA Commission on Law & Aging
23
(6) Withholding or withdrawing artificially administered nutrition and
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Restrictions on Decision-Making Authority
hydration, other than hyperalimentation, necessary to sustain life except
as provided in ORS 127.580.
§ 5521. Provisions concerning powers, duties and liabilities
§ 5521. Provisions concerning powers, duties and liabilities
(a) Duty of guardian of the person.--It shall be the duty of the guardian
of the person to assert the rights and best interests of the incapacitated
person.
(d) Unless specifically included in the guardianship order after specific
findings of fact or otherwise ordered after a subsequent hearing with
specific findings of fact, a guardian or emergency guardian shall not have
the power and duty to:
(1) Consent on behalf of the incapacitated person to an abortion,
sterilization, psychosurgery, electroconvulsive therapy or removal of a
healthy body organ.
PA
20 Pa.
Cons.
Stat. Ann.
(3) Consent on behalf of the incapacitated person to the performance of
any experimental biomedical or behavioral medical procedure or
participation in any biomedical or behavioral experiment.
(f) The court may not grant to a guardian powers controlled by other
statute, including, but not limited to, the power:
RI
R.I. Gen.
Laws Ann.
SC
S.C. Code
Ann.
§ 33-15-29. General duties of limited guardians or guardians with
respect to person and estate
Every limited guardian or guardian with authority to make decisions
with respect to the person of his or her ward shall exercise authority in
the best interest of his or her ward.
§ 62-5-312. General powers and duties of guardian.
(a) In particular, and without qualifying the foregoing, a guardian has
the following powers and duties, except as modified by order of the
court:
(1) To admit the incapacitated person to an inpatient psychiatric facility
or State center for the mentally retarded.
Restrictions not addressed.
Restrictions not addressed.
(3) A guardian may give any consents or approvals that may be
necessary to enable the ward to receive medical or other professional
care, counsel, treatment, or service.
ABA Commission on Law & Aging
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State
SD
Decision-Making Authority
§ 29A-5-402. Responsibility of guardian of protected person
Restrictions on Decision-Making Authority
§ 29A-5-419. Court's authority to limit powers--Authorization sought
by guardian or conservator
A guardian of a protected person shall make decisions regarding the
protected person's support, care, health, habilitation, therapeutic
treatment, and, if not inconsistent with an order of commitment or
custody, shall determine the protected person's residence.
Nothing in this chapter prohibits the court from limiting the powers
which may otherwise be exercised by a guardian or conservator without
prior court authorization, from authorizing transactions which might
otherwise be prohibited, nor from granting additional powers to a
guardian or conservator. Nothing in this chapter prohibits a guardian or
conservator from seeking court authorization, instructions, or ratification
for any actions, proposed actions, or omissions to act.
S.D.
Codified
Laws
§ 29A-5-118. Effect of appointment on minor or protected person
Unless prior authorization of the court is first obtained, a guardian or
conservator may not . . . revoke or amend a durable power of attorney of
which the protected person is the principal.
§ 34-6-204. Priorities and preferences; appointment of conservator,
guardian of estate or other fiduciary
Not addressed.
(2) (A) [I]f a court appoints a conservator, guardian of the estate or other
fiduciary, that fiduciary shall not have the power to revoke or amend a
durable power of attorney for health care nor replace the attorney in fact
designated in a power of attorney for health care.
TN
Tenn. Code
Ann.
TX
Tex. Est.
Code
§ 1151.051. General Powers and Duties of Guardians of the Person
(B) Upon application and good cause shown, when appointing a
conservator, guardian of the estate or other fiduciary, a court may revoke
or amend a durable power of attorney for health care or replace the
attorney in fact designated in the power.
(c) A guardian of the person has:
(c) A guardian of the person has:
(4) the power to consent to medical, psychiatric, and surgical
treatment other than the inpatient psychiatric commitment of the
ward;
(4) the power to consent to medical, psychiatric, and surgical treatment
other than the inpatient psychiatric commitment of the ward;
(d) Notwithstanding Subsection (c)(4), a guardian of the person of a
ward has the power to personally transport the ward or to direct the
ward's transport by emergency medical services or other means to an
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§ 1151.051. General Powers and Duties of Guardians of the Person
25
§ 1151.053. Commitment of Ward
(a) [A] guardian may not voluntarily admit a ward to a public or private
inpatient psychiatric facility operated by the Department of State Health
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inpatient mental health facility for a preliminary examination
Restrictions on Decision-Making Authority
Services for care and treatment or to a residential facility operated by the
Department of Aging and Disability Services for care and treatment.
§ 1151.052. Care of Adult Ward
(b) The guardian of an adult ward who has decision-making ability
may apply on the ward's behalf for residential care and services
provided by a public or private facility if the ward agrees to be placed
in the facility.
§ 1151.053. Commitment of Ward
(a) If care and treatment in a psychiatric or residential facility is
necessary, the ward or the ward's guardian may:
(1) apply for services under Section 593.027 or 593.028, Health and
Safety Code;
(2) apply to a court to commit the person under Subtitle C or D, Title 7,
Health and Safety Code, or Chapter 462, Health and Safety Code; or
(3) transport the ward to an inpatient mental health facility for a
preliminary examination in accordance with Subchapters A and C,
Chapter 573, Health and Safety Code.
(c) A guardian of a person may voluntarily admit an incapacitated
person to a residential care facility for emergency care or respite care
under Section 593.027 or 593.028, Health and Safety Code.
§ 1151.054. Administration of Medication
UT
Utah Code
Ann.
(b) The guardian of the person of a ward who is not a minor and who is
under a protective custody order as provided by Subchapter B, Chapter
574, Health and Safety Code, may consent to the administration of
psychoactive medication as prescribed by the ward's treating
physician regardless of the ward's expressed preferences regarding
treatment with psychoactive medication.
§ 75-5-312. General powers and duties of guardian--Penalties
(2) In particular, and without qualifying the foregoing, a guardian has
the following powers and duties, except as modified by order of the
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Restrictions not addressed.
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court:
Restrictions on Decision-Making Authority
§ 3069. Powers of a guardian
§ 3073. Change of residential placement
(c) The court shall specify which of the following powers the guardian
shall have and may further restrict each power so as to preserve the
respondent's authority to make decisions commensurate with
respondent's ability to do so:
(a) When a guardian who has been granted the power to choose or
change the residence of the ward pursuant to section 3069(b)(1) of this
title wishes to change the residential placement of the ward from a private
home to a boarding home, residential care home, assisted living residence,
group home or other similar facility, the guardian must first file a motion
for permission to do so.
(c) A guardian may give any consents or approvals that may be
necessary to enable the ward to receive medical or other professional
care, counsel, treatment, or service.
VT
Vt. Stat.
Ann. tit. 14
(2) the power to seek, obtain, and give or withhold consent to the
initiation or continuation of medical or dental treatment, subject to the
provisions of section 3075 of this title and any constitutional right of
the person under guardianship to refuse treatment, provided that the
court in its discretion may place limitations on the guardian's powers
under this subdivision if appropriate under the circumstances,
including requiring prior court approval for specific surgeries,
procedures, or treatments;
§ 3073. Change of residential placement
(b)(1) In an emergency, a guardian who has been granted the power to
choose or change the residence of the person under guardianship
pursuant to subdivision 3069(c)(1) of this title may change the
residential placement of the person under guardianship without
petitioning the court for prior permission or without giving prior
notice to parties. Immediately after any emergency change in
residential placement for which prior permission under subsection (a)
of this section would be required in the absence of an emergency, the
guardian shall file a motion for permission to continue the placement
§ 3075. Consent for medical or dental treatment
(e) For a person whose right to consent to medical or dental
procedures has been restricted pursuant to subdivision 3069(c)(2) of
this title, the guardian may give or withhold consent pursuant to this
section and subject to any constitutional right of the person under
guardianship to refuse treatment.
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§ 3074. Commitment, sterilization, involuntary treatment, and
involuntary medication
Nothing in this chapter shall give the guardian of a ward authority to:
(1) place that person in a state school or hospital except pursuant to
[mental commitment procedures];
(2) consent to an involuntary treatment or medication petition pursuant
to chapter 181 of Title 18.
(3) consent to sterilization or to a petition for involuntary sterilization
pursuant to chapter 204 of Title 18.
(4) consent to a petition for custody, care, or habilitation filed pursuant to
chapter 206 of Title 18.
§ 3075. Consent for medical or dental treatment
(g)(1) The guardian shall obtain prior written approval by the probate
division of the superior court following notice and hearing:
(A) if the person under guardianship objects to the guardian's decision, on
constitutional grounds or otherwise;
(B) if the court orders prior approval for a specific surgery, procedure, or
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treatment, either in its initial order pursuant to subdivision 3069(c)(2) of
this title or anytime after appointment of a guardian;
(C) except as provided in subdivision (2) of this subsection, and unless the
guardian is acting pursuant to an advance directive, before withholding or
withdrawing life-sustaining treatment other than antibiotics; or
(D) unless the guardian is acting pursuant to an advance directive, before
consenting to a do-not-resuscitate order unless a clinician as defined in 18
V.S.A. § 9701(5) certifies that the person under guardianship is likely to
experience cardiopulmonary arrest before court approval can be
obtained. In such circumstances, the guardian shall immediately notify the
court of the need for a decision, shall obtain the clinician's certification
prior to consenting to the do-not-resuscitate order, and shall file the
clinician's certification with the court after consent has been given.
(2) The requirements of subdivision (1)(C) of this subsection shall not
apply if obtaining a court order would be impracticable due to the need
for a decision before court approval can be obtained. In such
circumstances, the guardian shall immediately notify the court by
telephone of the need for a decision, and shall notify the court of any
decision made.
§ 64.2-2019. Duties and powers of guardian
VA
§ 64.2-2019. Duties and powers of guardian
A. A guardian stands in a fiduciary relationship to the incapacitated
person for whom he was appointed guardian
§ 11.92.043. Additional duties
B. A guardian's duties and authority shall not extend to decisions
addressed in a valid advance directive or durable power of attorney
previously executed by the incapacitated person. A guardian may seek
court authorization to revoke, suspend, or otherwise modify a durable
power of attorney, as provided by the Uniform Power of Attorney Act (§
64.2-1600 et seq.). Notwithstanding the provisions of the Health Care
Decisions Act (§ 54.1-2981 et seq.) and in accordance with the procedures
of § 64.2-2012, a guardian may seek court authorization to modify the
designation of an agent under an advance directive, but the modification
shall not in any way affect the incapacitated person's directives
concerning the provision or refusal of specific medical treatments or
procedures.
It shall be the duty of the guardian or limited guardian of the person:
(5) No guardian, limited guardian, or standby guardian may involuntarily
Va. Code
Ann.
WA
Wash. Rev.
ABA Commission on Law & Aging
§ 11.92.043. Additional duties
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Decision-Making Authority
(5) Consistent with RCW 7.70.065, to provide timely, informed consent
for health care of the incapacitated person.
Restrictions on Decision-Making Authority
commit for mental health treatment, observation, or evaluation an alleged
incapacitated person who is unable or unwilling to give informed consent
to such commitment unless the procedures for involuntary commitment . .
. are followed. Nothing in this section shall be construed to allow a
guardian, limited guardian, or standby guardian to consent to:
(a) Therapy or other procedure which induces convulsion;
(b) Surgery solely for the purpose of psychosurgery;
(c) Other psychiatric or mental health procedures that restrict physical
freedom of movement, or the rights set forth in RCW 71.05. 045.
A guardian, limited guardian, or standby guardian who believes these
procedures are necessary for the proper care and maintenance of the
incapacitated person shall petition the court for an order unless the court
has previously approved the procedure within the past thirty days. The
court may order the procedure only after an attorney is appointed in
accordance with RCW 11.88.045 if no attorney has previously appeared,
notice is given, and a hearing is held in accordance with RCW 11.88.040.
§ 44A-3-1. Duties of guardian of protected person
WV
W. Va.
Code
WI
Wis. Stat.
Ann.
§ 44A-3-1. Duties of guardian of protected person
(a) The guardian of a protected person owes a fiduciary duty to the
protected person and is responsible for obtaining provision for and
making decisions with respect to the protected person's support, care,
health, habilitation, education, therapeutic treatment, social
interactions with friends and family, and, if not inconsistent with an
order of commitment or custody, to determine the protected person's
residence.
(c) A guardian shall be required to seek prior court authorization to …
deviate from a protected person's living will or medical power of attorney,
or to revoke or amend a durable power of attorney executed by the
protected person.
§ 54.25. Duties and powers of guardian of the person
§ 54.25. Duties and powers of guardian of the person
(2) Powers.
(2) Powers.
(d) Guardian authority to exercise certain powers.
(d) Guardian authority to exercise certain powers.
1. A court may authorize a guardian of the person to exercise all or part
of any of the powers specified in subd. 2. only if it finds, by clear and
convincing evidence, that the individual lacks evaluative capacity to
exercise the power.
ac. A guardian may consent to the involuntary administration of
psychotropic medication only under a court order under s. 55.14.
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c. The power to authorize the ward's participation in research that might
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2. All of the following are powers subject to subd. 1.:
ab. the power to give an informed consent to the voluntary receipt by
the guardian's ward of a medical examination, medication, including
any appropriate psychotropic medication, and medical treatment that
is in the ward's best interest, if the guardian has first made a good-faith
attempt to discuss with the ward the voluntary receipt of the
examination, medication, or treatment and if the ward does not
protest.
ac. the power to give informed consent, if in the ward's best interests,
to the involuntary administration of a medical examination, medication
other than psychotropic medication, and medical treatment that is in
the ward's best interest.
b. Unless it can be shown by clear and convincing evidence that the
ward would never have consented to research participation, the power
to authorize the ward's participation in an accredited or certified
research project if the research might help the ward; or if the research
might not help the ward but might help others, and the research
involves no more than minimal risk of harm to the ward.
i. The power to choose providers of medical, social, and supported
living services.
WY
Wyo. Stat.
Ann.
Restrictions on Decision-Making Authority
not help the ward but might help others even if the research involves
greater than minimal risk of harm to the ward if the guardian can
establish by clear and convincing evidence that the ward would have
elected to participate in such research; and the proposed research was
reviewed and approved by the research and human rights committee of
the institution conducting the research.
d. Unless it can be shown by clear and convincing evidence that the ward
would never have consented to any experimental treatment, the power to
consent to experimental treatment if the court finds that the ward's
mental or physical status presents a life-threatening condition; the
proposed experimental treatment may be a life saving remedy; all other
reasonable traditional alternatives have been exhausted; 2 examining
physicians have recommended the treatment; and, in the court's
judgment, the proposed experimental treatment is in the ward's best
interests.
n. The power to apply for protective placement under s. 55.075 or for
commitment under s. 51.20 or 51.45(13) for the ward.
§ 3-2-201. Powers and duties of guardian
§ 3-2-202. Powers of the guardian subject to approval of the court
(a) The guardian shall:
(a) Upon order of the court, after notice and hearing and appointment of a
guardian ad litem, the guardian may:
(iii) Subject to the restrictions of W.S. 3-2-202, authorize or expressly
withhold authorization of medical or other professional care,
treatment or advice;
(i) Commit the ward to a mental health hospital or other mental health
facility;
(ii) Consent to the following treatments for the ward:
(A) Electroshock therapy;
(B) Psychosurgery;
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(C) Sterilization;
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(D) Other long-term or permanent contraception.
(iv) Execute any appropriate advance medical directives, including
durable power of attorney for health care under W.S. 35-22-403(b) and
living will under 35-22-402(a).
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