GUARDIANSHIPS Jill Hanley Public Administrator St Louis City

GUARDIANSHIPS Jill Hanley, Public Administrator, St. Louis City

475. 010 RSMO � (6) � "Disabled" or "disabled person", one who is: (a) Unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage the person's financial resources;

475. 010 RSMO � (11) "Incapacitated person", one who is unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person, even with appropriate services and assistive technology, lacks capacity to manage the person's essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

475. 120 RSMO � 3. The general powers and duties of a guardian of an incapacitated person shall be to take charge of the person of the ward and to provide for the ward's care, treatment, habilitation, education, support and maintenance; and the powers and duties shall include, but not be limited to, the following: (1) Assure that the ward resides in the best and least restrictive housing reasonably available;

475. 120 RSMO (continued) (2) Assure that the ward receives medical care and other services that are needed; (3) Promote and protect the care, comfort, safety, health, and welfare of the ward; (4) Provide required consents on behalf of the ward; (5) To exercise all powers and discharge all duties necessary or proper to implement the provisions of this section.

475. 120 RSMO � 10. Except as otherwise limited by the court, a guardian shall make decisions regarding the adult ward's support, care, education, health, and welfare. A guardian shall exercise authority only as necessitated by the adult ward's limitations and, to the extent possible, shall encourage the adult ward to participate in decisions, act on the adult ward's own behalf, and develop or regain the capacity to manage the adult ward's personal affairs.

475. 361 RSMO � The ward has the right to: (1) A guardian who acts in the best interests of the ward; (2) A guardian who is reasonably accessible to the ward; (3) Communicate freely and privately with family, friends, and other persons other than the guardian; except that, such right may be limited by the guardian for good cause but only as necessary to ensure the ward's condition, safety, habilitation, or sound therapeutic treatment;

475. 361 RSMO (continued) (4) Individually or through the ward's representative or legal counsel, bring an action relating to the guardianship, including the right to file a petition alleging that the ward is being unjustly denied a right or privilege granted by this chapter, including the right to bring an action to modify or terminate the guardianship under the provisions of section 475. 083; (5) The least restrictive form of guardianship assistance, taking into consideration the ward's functional limitations, personal needs, and preferences;

475. 361 RSMO (continued) (6) Be restored to capacity at the earliest possible time; (7) Receive information from the court that describes the ward's rights, including rights the ward may seek by petitioning the court; and (8) Participate in any health care decision-making process.

Case � Estate of Posey v. Bergin, 299 SW 3 d 6 - Mo: Court of Appeals, Eastern Dist. , 4 th Div. 2009

Capacity to consent � There is a new form now entitled “capacity to consent to sexual activity form” that is being completed by staff at nursing homes. These forms ask the following questions. � The resident has the ability to communicate a yes or no decision. (applicable to risk/benefit levels). � The resident has the ability to understand relevant information

Capacity to Consent Questions Resident’s awareness of the relationship: 1. Is the resident aware of who is initiating sexual contact? 2. Does the resident believe that the other person is a spouse and, thus, acquiesces out of a delusional belief, or are they cognizant of the other’s identity and intent? 3. Can the resident state what level of sexual intimacy they would be comfortable with? The resident has the ability to appreciate the situation and its likely consequences � Resident’s ability to avoid exploitation. 1. Is the behavior consistent with formerly held beliefs/values? 2. Does the resident have the capacity to say no to uninvited sexual contact? The participant has the ability to manipulate information rationally. � Resident’s awareness of potential risks: 1. Does the resident realize that this relationship may be time limited (placement on unit is temporary)? 2. Can the resident describe how they will react when the relationship ends? �

Examples � Medication � Family � Sexual relations � Nutrition � Health