Community Services and Long-Term Care: Issues of Negligence and Liability. Definitions and Discussion of Terms


The following definitions are relevant to the discussion. Legal interventions and their consequences for elderly people are discussed in detail because caring people often initiate legal action in the best interests of older people and are unaware of the possible harm that might arise from such intervention.

Incompetency. Incompetency is the condition or legal status determined by a court that a person is unable or unfit to manage his affairs because of mental or physical impairment or because of an inability to communicate with others to give direction for such management. In some jurisdictions the definition extends to include individuals who may be the objects of designing persons, i.e., those subject to exploitation by unscrupulous individuals. The definition of “incompetency” is not a universal one and varies according to the language of each state’s statutes as interpreted by the courts. Adults who have been adjudicated as incompetent are stripped of most rights. They are not free to enter into contracts, buy and sell property, be responsible for torts or crimes committed, vote, marry, engage in a professional practice if licensed, decide where to live or travel, control their bank accounts or investments, use charge cards, apply for public benefits or otherwise exercise normal autonomy. Channeling clients who are adjudicated as incompetent cannot sign their own care plans. In some jurisdictions they may not have the power to grant or withhold consent for medical treatment. A declaration of incompetency by a court will result in the imposition of a guardianship.

Guardianship. Guardianship is a legal device imposed by a court to provide protection of the estate (i.e., the property including both present and future interests and/or claims) and person of an individual adjudged to be incompetent. The imposition of a guardian involves the appointment of an individual or agency to take charge of the incompetent’s property and/or claims, to manage such for the sole benefit of the incompetent.

Where the court appoints a guardian of the person, the guardian takes custody of the individual. The guardian is responsible to the court appointing him/her and makes periodic reports to the court. Some states have offices of public guardians for incompetents who are indigent. Because guardianship necessarily flows from a finding of incompetency the standards for guardianship will vary from state to state and are a function of individual state statutes as interpreted by the courts.

The history of incompetency and guardianship is grounded in the concern for protection of property interests. The statutory standards for a finding of incompetency are generally vague, referring to an inability to manage one’s affairs because of “insanity”, “feeblemindedness”, “idiocy”, “imbecility”, “infirmities of old age”, senility”, “drunkeness”, or similar terms.

Because guardianship is such an intrusive and invasive legal device resulting in virtual loss of autonomy in many spheres, judicial definition has sought to keep the boundaries narrow. The guardian may, in some jurisdictions, admit an adjudged incompetent “voluntarily” to a mental hospital, and most certainly can confine him in a nursing home.

Courts have held inability to manage property as the fundamental test. However, the inability must stem from a mental impairment such that it renders the subject incapable of understanding and acting with discretion in ordinary affairs of life. Guardians may be appointed without a finding of insanity. Conversely, a finding of insanity is not necessarily an indicator of incompetency (McAuliffe v. Carlson), 377 F. Supp. 896). Incompetence to manage property may be concurrent with some degree of mental illness.

In this regard, the courts have held that eccentricity or inability to manage large sums of money because of inexperience (In Re Porter’s Estate 345 A2d. 171) are not sufficient to deprive an individual of his civil rights:

A man may do what he pleases with his personal estate during his life. He may even beggar himself and his family if he chooses to commit such an act of folly (Bryden’s Estate 211 PA 633, 61 A 250, 251 (1905)).

Even chronic alcoholism is not enough for a finding of incompetency and appointment of a guardian where there is no evidence that over-indulgence interfered with capability to mange affairs.(Van v. Van 14 Or App. 575, 513 P.2d 1205.)

Unwise gifts, foolish investments and lack of business sense are generally insufficient to support a finding of incompetency. Ordinarily, one looks for reckless waste or dissipation, gross confusion, lack of knowledge of one’s holdings or affairs. Even temporary impairment as from insulin shock may not be sufficient to warrant a guardian (Re Nelson’s Guardianship 12 Wash.2d 238). And guardianship cannot be imposed because the individual may become incompetent in the future.

All of the above notwithstanding, courts have held that an 80-year-old widow, living alone, illiterate, unable to speak English but not mentally ill was incompetent because she could not manage her property without help (Re Guardianship of Melnick 180 Neb. 748, 145 NW2d 339). In actual practice, courts are more apt to grant guardianships on weak grounds than not.

This occurs in spite of the fact that the one major study undertaken of over 400 guardianships imposed on the elderly did not find a single case where any benefit accrued to the elderly ward as a result of the guardianship.4

This lengthy discussion is a way of warning agency staff to be cautious in seeking findings of incompetency and instituting guardianship proceedings. Case managers will be serving very old and impaired people and may be under great pressure to initiate guardianship proceedings for their clients. Less restrictive alternatives are available which protect both the property and civil rights of the elderly. Agencies should explore alternatives such as conservatorship, powers of attorney, trusts, joint bank accounts and property ownership or special agency.5 They should choose the one that has the greatest feasibility of maximizing the client’s independence. Such a choice is consistent with the goals of case management.

Conservatorship. Conservatorship is a form of guardianship which, in the states where it is available, relates to a guardianship of property and typically does not require a finding of insanity to have it imposed. It is, in many ways, a “junior guardianship” and is supposed to carry less stigma with it. If property and money and income are controlled then, surely, the comings and goings of the ward are controlled. “Who controls my purse, controls my person”.

Representative Payee. Representative payee is a term of art limited to Social Security payments made to an individual in behalf of another. The recipient of the check is the representative payee. This does not require a due process hearing and is, in many ways, a “junior junior guardianship”, acquiesced in by the Social Security beneficiary. It is based, usually, upon affidavits of physicians or others and has as its beneficient purposes the payment of rent, and assurance that food is being bought, etc. While it is somewhat less formal in its requirements for imposition, similarly, its lifting is somewhat more informal.

Power of Attorney. A power of attorney is a document executed by one granting powers he/she holds to another, which authorizes the other person to act on one’s behalf when making various legal, financial, and/or business decisions. The power of attorney can set out the varying amounts of control which the agent may exercise over income and access. An individual must be competent to sign a power of attorney authorizing another to act. A power of attorney may be limited in time as well as in substance. The power of attorney may be good for one day, one week, one month or may be valid indefinitely. In the latter case, the power of attorney will automatically expire if the principal, i.e., the maker of the power of attorney, becomes incompetent or in any way is in a condition where it is impossible for him to revoke the power. A power of attorney, once granted may be revoked at will at any time.

Some states have what is called a “durable power of attorney” provided by special legislation to permit use of such a legal device. The durable power of attorney will continue even though an individual may become incompetent, lapse into a coma, or otherwise be unable to revoke or reaffirm the power. Generally, a durable power of attorney may be granted only to certain people such as members of the family and may be accompanied by certain people such as members of the family and may be accompanied by certain special ritualistic elements such as additional witnesses or acknowledgment in certain terms that the instrument is a durable power of attorney. It should be noted, however, even a durable power of attorney may be revoked at any time that the maker of the power of attorney is competent to do so. The advantages of a durable power of attorney is that in some ways it has the effect of permitting an individual to select his own “guardian”.

Informed Consent. Informed consent is legally effective consent. The elements of informed consent include:

  1. Comprehension by the client of all relevant information plus the ability to convey a decision regarding the information to another individual such as the case manager/ assessor;
  2. Knowledge of the risks involved;
  3. Voluntariness of the consent.

In summary, this is “knowing consent of an individual or his legally authorized representative, so situated as to be able to exercise free power of choice, without undue inducement or any element of force, fraud, deceit, duress or other form of constraint or coercion.” (HEW Regulations, 45 CFR 46 (1975)).

Channeling projects have research and service components. The research often involves the participation of clients, informal helpers, formal helpers and others as well as the personnel and materials of the channeling agency itself. Research carries with it varying degrees of risks of harm to the participant. Liability arising from research activities is the result of a failure of the research agency, the investigator(s) and/or their agents to fulfill statutory, regulatory and common law duties owed to research subjects. Fortunately, this is one of the areas where formal procedures and protocols offer excellent protection against a finding of liability. Furthermore, the bulk of research undertaken as part of the channeling project poses minimal risk of physical and/or psychological harm, although there may be substantial risks involving invasion of privacy. However, channeling agencies and/or provider agencies may participate in other research projects which may pose substantial risks and for which preventive steps may be taken.

Liability does not arise simply because of exposure to risk. Competent individuals can assume risks provided they understand what they are and what benefits and/or detriments may flow from such exposure to risk. Furthermore, some risks, while different from the risks of ordinary everyday living, do not differ in degree from that which the individual might encounter if she/he didn’t participate in the research.

Because channeling projects all involve federal funds they are subject to the constraints of Part 46 of Title 45 of the Code of Federal Regulations governing protection of human subjects. Such regulations are concerned with a formal assessment of risks to which subjects are exposed, establishing procedures to safeguard the rights and welfare of the subjects, obtaining voluntary informed consent, and timely periodic review of the research activity.

The regulations required that an Institutional Review Board (IRB) be convened for each research program. The role of the IRB is to evaluate risk to participants and to review the mechanisms built into the research design for protecting participants’ rights.

The IRB for the Channeling Demonstration reviewed and approved of the informed consent procedures which are currently followed by channeling agencies. These procedures assure that participants are aware of the research nature of the program, the possibility of assignment to a control group, the time limited nature of services if provided, and the possibility that services can be changed or terminated as circumstances change. Informing the participant is important throughout the channeling project. It assures that clients receiving services and members of the control group understand the procedures and practices of the demonstration and assures that they assent to the terms of the participation. Informed consent is indicated by signing a standard informed consent form at the time the baseline assessment is conducted. During care planning, the client signs a copy of the care plan signifying agreement with the prescribed services. Careful compliance with the informed consent procedures will protect channeling agencies from findings of liability.


  • Validity of informed consent: The Do-It-For-Me Case
  • Validity of informed consent: The Forgetful Client Case
  • Client refuses service: The Reluctant Client Case
  • Care Plan Disagreement/Family: The Hip Fracture Family Fracas Case
  • Care Plan Disagreement/Guardian: The Hip Fracture Guardian Case
  • Witnessing Signing of the Care Plan: The X Marks the Spot Case
  • Collaterals As Sources of Information and Authority: The Collateral Case
  • Nursing Home Admission Against Will: The Nursing Home Case #1
  • Too Ill to Stay at Home: Nursing Home Case #2

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