Resident Decision-Making: Whose Decision Is It?
By Paula G. Sanders, Esquire1 and Mark L. Mattioli, Esquire2
Providers frequently confront divergences between the wishes expressed by the resident and the direction of the guardian or other representative, creating tensions as to what course of action should be implemented. Problems more typically arise when a resident’s decision-making capabilities are impaired or when a resident has not previously expressed their wishes. Under principles of resident-centered care, the paramount question is what does the resident want?
In navigating this maze, providers must assess the resident’s ability to make the decision, the scope of authority of the representative, and how the representative was appointed, i.e., by a legal means such as through guardianship, limited guardianship, or conservatorship, by designation by the resident or as a surrogate decision maker. Ultimately, any decision-making power that is not legally granted to a representative under state law is retained by the resident.3
Notably, on December 30, 2023, Governor Josh Shapiro signed Act 61 of 2023 (S.B. 506), amending the process by which courts must determine incapacity and appointments of guardians. The new law underscores the recognition that individuals retain as much autonomy as possible, and guardianships should be limited in time and scope to the extent practicable. Significantly, all petitions for guardianship must now include specific facts demonstrating that less restrictive alternatives were considered or tried, and why alternatives are unavailable or insufficient.
Pursuant to these amendments, courts are required to make specific findings of fact based on the evidentiary record of the absence of sufficient family, friends, or other supports and of the insufficiency of each less restrictive alternative before ordering guardianship. Less restrictive alternatives include, but are not limited to:
- Advance directives such as a durable power of attorney of trusts
- Living wills
- Health care powers of attorney
- Financial powers of attorney
- Trusts, including special needs trusts.
- Representative payees for individuals receiving Social Security benefits.
- Pennsylvania Achieving a Better Life Experience Accounts
- Mental health advance directives.
