Reasons For Appointment:
Public administrators are often appointed as guardian and/or conservator for mentally
incapacitated individuals when there are no family members that are willing, available,
or suitable to serve. Guardian/conservatorship is a monumental responsibility, which
can be overwhelming for relatives. Public administrators will occasionally be appointed
in cases where physical or financial abuse has occurred and family members themselves
are the perpetrators. As in the case of the older ward/protectee, who may be suffering
from Alzheimer's or another form of dementia, he or she may have outlived any relatives,
or, the family members themselves may be elderly and unable to serve. A common
appointment of the public administrator as guardian/conservator is for wards with mental
illnesses. In these situations, family members may have already been involved in trying
to help the incapacitated loved one and have become "burned out". Persons with mental
illnesses can be quite manipulative, especially with parents and siblings, which can
sidetrack the ward's recovery process.
A small portion of the public administrator's case load will include deceased estates where he/she has been appointed to serve as personal representative in situations where there is no will and no heir available or suitable to serve. More often than not, these deceased estates end up being settled by the public administrator because of family members who cannot agree on which one is to serve or one of them has been accused by the others of taking some of the estate's assets.
While the public administrator does not serve as guardian of minors, the Probate Court will, in some instances, appoint her as conservator for a minor. Parents, if living, are by law the natural guardians of their children - or if custody has been removed, the Division of Family Services assumes this responsibility. A common scenario leading to the appointment of the public administrator would be that parents are killed in an automobile accident with an insurance settlement going to minor children, which requires the establishment of a conservatorship.
Major Responsibilities as Guardian/Conservator:
Client Advocate - for housing and living arrangements, employment and day training,
entitlements and benefits, religious rights and for good medical care. Further, an
important aspect of advocating on behalf of the ward/protectee is the ongoing assessment
of the need to continue guardian/conservatorship. Restoring the ward's rights is known
by the legal term, restoration.
Surrogate Decision Making - there are two suggested principles (per the National Guardianship Association) to be considered when making decisions for the client:
- Substituted Judgement - which asks the question, "What would the ward/protectee have wanted for himself?" This principle best protects the autonomy, values, belief and preferences of the ward.
- Principle of Best Interest - used when the guardian/conservator is unable to determine what the ward would have done in a particular situation (which is often the case with public administrator clients who have no relatives or friends around who can give this information and the ward himself is unable to communicate his desires because of the severity of his illness)
- Informed Consent - regardless of which principle of decision-making is used, it is imperative that the guardian/conservator makes it using what is called informed consent which requires full disclosure of the facts. Informed consent involves using a systematic set of criteria. Further, the guardian should not make decisions "in a vacuum." Information may be needed from family members, doctors, nurses, an ethicist, the ward's minister, etc. Also, the guardian needs to determine if a court order is required.
- Coordinator and Monitor of Services - it is essential that the guardian/conservator develop and maintain a working knowledge of the services, service providers and facilities available in the community and to stay informed of any changes in these resources. The guardian should be in control of the plan of medical and personal care for the ward. The plan of care is developed with ward's input (when possible) by first assessing his/her needs and strengths and determining his/her goals. Then the guardian contracts with service providers to meet those needs and assists in accomplishing the goals. The guardian/conservator must continually monitor the ward's progress as well as the effectiveness of those services.
Conservator as Financial Planner and Manager - the public administrator as conservator has a fiduciary relationship with the protectee and is held to the highest standard of practice. Conservators should make well-reasoned decisions, represent only the interests of the protectee and avoid any conflicts of interest while maintaining the confidential nature of the protectee's affairs. The guardian-conservator should remain free to challenge inappropriately or poorly delivered services keeping an arms-length relationship with all service providers (including financial institutions, realtors, auctioneers, hospitals, physicians and placement facilities such as group homes, residential care facilities and nursing homes). Greene County's Public Administrator maintains that the conservator's actions should be above reproach and should not even give the impression of a conflict of interest. For example (although not illegal), she and her family members do not and employees are discouraged from bidding at real estate and personal property auctions. Per the statutes, investments other than those insured by the F.D.I.C. or the F.S.L.I.C. are to be made only under court order.