Complex Moral Issues: End-of-Life Decisions for People with Significant Intellectual Disabilities

Guardian Statutes in the States

This is a review of the guardianship statutes for all 50 states and the District of Columbia. Note that changes to the legislation may have occurred since the time of posting.

You can use the drop down list to access statues or click on the map below.

North Dakota Wyoming Montana Alaska Arizona Hawaii Nevada Vermont West Virginia New Jersey Maine California New Hampshire Rhode Island Utah Colarado Kansas Nebraska Massachusetts Idaho Oklahoma Maryland South Dakota Washington Texas Iowa Minnesota New Hampshire Connecticut Missouri Arkansas West Virginia Tennessee Louisiana New Mexico Wisconsin Illinois Indiana Massachusetts Michigan Ohio Maryland North Carolina Virginia Delaware New York Alabama New Jersey Oregon Pennsylvania Washington DC Florida Vermont Rhode Island Kentucky Mississippi Georgia South Carolina

ALABAMA

Ala. Code § 26-2A-108

§ 26-2A-108. General powers and duties of guardian.

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, but is not liable to third persons by reason of that responsibility for acts 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).

Ala. Code § 26-2A-78

(b) In particular and without qualifying the foregoing, a guardian shall:

  1. Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;
  2. Take reasonable care of the ward's personal effects and commence protective proceedings if necessary to protect other property of the ward;
  3. Apply any available money of the ward to the ward's current needs for health, support, education, or maintenance;
  4. Conserve any excess money of the ward for the ward's future needs, but if a conservator has been appointed for the estate of the ward, the guardian, at least quarterly, shall pay to the conservator money of the ward to be conserved for the ward's future needs; and
  5. Report the condition of the ward and of the ward's estate that has been subject to the guardian's possession or control, as ordered by the court on petition of any person interested in the ward's welfare or as required by court rule.

(c) A guardian may:

  1. Receive money payable for the support of the ward to the ward's parent, guardian, or custodian under the terms of any statutory benefit or insurance system or any private contract, devise, trust, conservatorship, or custodianship, and money or property of the ward paid or delivered pursuant to Section 26-2A-6;
  2. If consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, take custody of the person of the ward and establish the ward's place of abode within or without this state;
  3. If no conservator for the estate of the ward has been appointed, institute proceedings, including administrative proceedings, or take other appropriate action to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward;
  4. Consent to 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;
  5. Consent to the marriage or adoption of the ward; and
  6. If reasonable under all of the circumstances, delegate to the ward certain responsibilities for decisions affecting the ward's well-being.

(d) A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board, and clothing personally provided to the ward, but only as approved by order of the court. If a conservator, other than the guardian or one who is affiliated with the guardian, has been appointed for the estate of the ward, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court controlling the guardian.

Ala. Code § 22-8A-2

§ 22-8A-2. Legislative intent.

The Legislature finds that competent adult persons have the right to control the decisions relating to the rendering of their own medical care, including, without limitation, the decision to have medical procedures, life-sustaining treatment, and artificially provided nutrition and hydration provided, withheld, or withdrawn in instances of terminal conditions and permanent unconsciousness.
In order that the rights of individuals may be respected even after they are no longer able to participate actively in decisions about themselves, the Legislature hereby declares that the laws of this state shall recognize the right of a competent adult person to make a written declaration instructing his or her physician to provide, withhold, or withdraw life-sustaining treatment and artificially provided nutrition and hydration or designate by lawful written form a health care proxy to make decisions on behalf of the adult person concerning the providing, withholding, or withdrawing of life-sustaining treatment and artificially provided nutrition and hydration in instances of terminal conditions and permanent unconsciousness. The Legislature further desires to provide for the appointment of surrogate decision-makers in instances where the individual has not made such a designation.

Ala. Code § 22-8A-6

§ 22-8A-6. Proxy to comply with instructions, intent of patient.

An individual designated to make decisions regarding the providing, withholding, or withdrawing of life-sustaining treatment or artificially provided nutrition and hydration for another pursuant to Section 22-8A-4(b) shall make those decisions according to the specific instructions or directions given to him or her in the designation or other document or by the individual making the designation. In the absence of specific directions or guidance, the designated proxy shall make those decisions that conform as closely as possible to what the patient would have done or intended under the circumstances, taking into account the patient's personal, philosophical, religious and moral beliefs, and ethical values relative to the decisions. Where possible, the designated proxy shall determine how the patient would have weighed the burdens and benefits of initiating or continuing life-sustaining treatment or artificially provided nutrition and hydration against the burdens and benefits to the patient of that treatment.

Ala. Code § 22-8A-4

(b) A competent adult may execute at any time a living will that includes a written health care proxy designation appointing another competent adult to make decisions regarding the providing, withholding, or withdrawal of life-sustaining treatment and artificially provided nutrition and hydration. Artificially provided nutrition and hydration shall not be withdrawn or withheld pursuant to the proxy designation unless specifically authorized therein. A proxy designation made pursuant to this section shall be accepted in writing by the individual being appointed. The acceptance shall be evidenced in writing and attached to the proxy designation. The proxy designation may be a separate document or part of a living will.

  1. The designation of an attorney-in-fact, made pursuant to Section 26-1-2, as amended from time to time, who is specifically authorized to make decisions regarding the providing, withholding, or withdrawing of life-sustaining treatment or artificially provided nutrition and hydration in instances involving terminal illness or injury and permanent unconsciousness, constitutes for purposes of this chapter a proxy designating another individual to act for the declarant pursuant to this subsection, provided, however, that the authority granted to an attorney-in-fact to make such decisions shall be the same as the authority granted in this chapter to a health care proxy. The appointment shall be limited to the specific directions enumerated in the appointment.
  2. Any powers granted to a health care proxy in an advance directive for health care executed pursuant to this subsection that permit a health care proxy to make general health care decisions not related to the provision, withdrawal, or withholding of life-sustaining treatment or artificially provided nutrition and hydration shall be limited to those powers permitted under the Alabama Durable Power of Attorney Act, Section 26-1-2, as the same shall be amended from time to time.
  3. Unless otherwise provided in the proxy designation or in an order of divorce, dissolution, or annulment of marriage or legal separation, the divorce, dissolution, or annulment of marriage of the declarant revokes the designation of the declarant's former spouse as health care proxy.
  4. Under no circumstances shall the patient's health care provider or a nonrelative employee of the patient's health care provider make decisions in the capacity of a health care proxy.

Ala. Code § 22-8A-11

§ 22-8A-11. Surrogate; requirements; attending physician consulted, intent of patient followed; persons who may serve as surrogate; priority; validity of decisions; liability; form; declaratory and injunctive relief; penalties.

(a) If no advance directive for health care has been made, or if no duly appointed health care proxy is reasonably available, or if a valid advance directive for health care fails to address a particular circumstance, subject to the provisions of subsection (c) hereof, a surrogate, in consultation with the attending physician, may, subject to the provisions of Section 22-8A-6, determine whether to provide, withdraw, or withhold life-sustaining treatment or artificially provided nutrition and hydration if all of the following conditions are met:

  1. The attending physician determines, to a reasonable degree of medical certainty, that:
    1. The individual is no longer able to understand, appreciate, and direct his or her medical treatment, and
    2. The individual has no hope of regaining such ability.
  2. Two physicians, one of whom is the attending physician and one of whom shall be qualified and experienced in making such diagnosis, have personally examined the individual and have diagnosed and certified in the medical record that the individual has a terminal illness or injury or has a condition of permanent unconsciousness.
  3. The attending physician or other health care provider and the surrogate have no actual knowledge of the existence of a valid advance directive for health care that would give guidance to the provider in treating the individual's condition.
  4. The treating physician determines, to a reasonable degree of medical certainty, that withholding or withdrawing the life-sustaining treatment or artificially provided nutrition and hydration will not result in undue pain or discomfort for the patient.

(b) The surrogate shall be a competent adult.

(c) The surrogate shall consult with the attending physician and make decisions permitted herein that conform as closely as possible to what the patient would have done or intended under the circumstances, taking into account any evidence of the patient's religious, spiritual, personal, philosophical, and moral beliefs and ethics, to the extent these are known to the surrogate. Where possible, the surrogate shall consider how the patient would have weighed the burdens and benefits of initiating or continuing life-sustaining treatment or artificially provided nutrition and hydration against the burdens and benefits to the patient of that treatment; except, that any decision by a surrogate regarding the withdrawal or withholding of artificially provided nutrition and hydration from a person who is permanently unconscious shall only be made upon clear and convincing evidence of the patient's desires. The decision to provide, withdraw, or withhold life-sustaining treatment or artificially provided nutrition and hydration by the surrogate shall be made in good faith and without consideration of the financial benefit or burden which will accrue to the surrogate or the health care provider as a result of the decision.

(d) Any of the following persons, in order of priority stated, when persons in prior classes are not available or willing to serve, may serve as a surrogate pursuant to the provisions of this section:

  1. A judicially appointed guardian, provided the appointment specifically authorizes the guardian to make decisions regarding the withholding of life-sustaining treatment or artificially provided nutrition and hydration. Nothing in this section shall be construed to require a judicial appointment before a decision can be made under this chapter. In addition, this section shall not be construed to require a judicially appointed guardian who has not been specifically authorized by a court to make decisions regarding the providing, withholding, or withdrawing of life-sustaining treatment or artificially provided nutrition and hydration to make those decisions or to seek court approval to make those decisions;
  2. The patient's spouse, unless legally separated or a party to a divorce proceeding;
  3. An adult child of the patient;
  4. One of the patient's parents;
  5. An adult sibling of the patient;
  6. Any one of the patient's surviving adult relatives who are of the next closest degree of kinship to the patient; or
  7. If the patient has no relatives known to the attending physician or to an administrator of the facility where the patient is being treated, and none can be found after a reasonable inquiry, a committee composed of the patient's primary treating physician and the ethics committee of the facility where the patient is undergoing treatment or receiving care, acting unanimously; or if there is no ethics committee, by unanimous consent of a committee appointed by the chief of medical staff or chief executive officer of the facility and consisting of at least the following: (i) the primary treating physician; (ii) the chief of medical staff or his or her designee; (iii) the patient's clergyman, if known and available, or a member of the clergy who is associated with, but not employed by or an independent contractor of the facility, or a social worker associated with but neither employed by nor an independent contractor of the facility. In the event a surrogate decision is being made by an ethics committee or appointed committee of the facility where the patient is undergoing treatment or receiving care, the facility shall notify the Alabama Department of Human Resources for the purpose of allowing the department to participate in the review of the matter pursuant to its responsibilities under the Adult Protective Services Act, Chapter 9 of Title 38.

(e) The surrogate shall certify and attest under oath that he or she has contacted one or more of the person or persons who is or are in a class equal to or higher than the surrogate and that each class has either consented or expressed no objections to him or her acting as surrogate or to the decision made by the surrogate. The certification shall be included in the medical record.

(f) A surrogate's decision shall nevertheless be valid if:

  1. He or she is unable to contact an individual whose consent or non-objection would otherwise be required because the individual's whereabouts are unknown, because the individual is in a remote location and cannot be contacted in sufficient time to participate in a decision to provide, withhold, or withdraw the treatment, or because the individual has been adjudged incompetent and remains under that disability; and
  2. The surrogate certifies and attests to that fact. In that case, the individual shall not be included in determining whether the individual's class has consented or expressed no objection as required pursuant to subsection (e).

(g) A health care provider who provides, withholds, or withdraws life-sustaining treatment or artificially provided nutrition and hydration from a patient upon the instructions of a surrogate who has certified and attested that he or she has qualified as a surrogate as required by this section shall not be subject to civil or criminal liability or be found to have committed an act of unprofessional conduct for providing, withdrawing, or withholding the life-sustaining treatment or artificially provided nutrition and hydration, nor shall the health care provider be deemed to be under a duty to investigate the truthfulness of the information certified and attested to by the surrogate.

(h) A surrogate acting pursuant to this section shall not be subject to civil or criminal liability or found to have committed an act of unprofessional conduct for decisions made in good faith to provide, withhold, withdraw, continue, or institute life-sustaining treatment, or artificially provided nutrition and hydration, unless the surrogate falsely or fraudulently certifies or attests to information required by this section.

(i) The Alabama State Board of Health shall prescribe by rule a form, which, when completed by a surrogate and duly notarized, shall constitute the certification of the surrogate as required by this chapter.

(j) If any relative, health care provider who is involved directly in the care of the patient, or other individual who is involved directly in providing care to the patient desires to dispute the authority or the decision of a surrogate to determine whether to provide, withhold, or withdraw medical treatment from a patient, he or she may file an action for declaratory and injunctive relief in the circuit court for the county where the patient is under treatment. A health care provider who is confronted by more than one individual who claims authority to act as surrogate for a patient may file an action for declaratory relief in the circuit court for the county where the patient is under treatment.

(k) An individual who knowingly certifies and attests to any information which is:

  1. Required by this chapter;
  2. Material to his or her authorization to act as a surrogate; and
  3. False, shall be guilty of a Class C felony. This shall be in addition to, and not in lieu of, penalties for other offenses of which the surrogate may be guilty by reason of this conduct.

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ALASKA

Alaska Stat. Ann. § 13.26.090 (West)

§ 13.26.090. Purpose and basis for guardianship

Guardianship for an incapacitated person shall be used only as is necessary to promote and protect the well-being of the person, shall be designed to encourage the development of maximum self-reliance and independence of the person, and shall be ordered only to the extent necessitated by the person's actual mental and physical limitations. An incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except those that have been expressly limited by court order or have been specifically granted to the guardian by the court.

Alaska Stat. Ann. § 13.26.150 (West)

§ 13.26.150. General powers and duties of guardian

(a) A guardian shall diligently and in good faith carry out the specific duties and powers assigned by the court. In carrying out duties and powers, the guardian shall encourage the ward to participate to the maximum extent of the ward's capacity in all decisions that affect the ward, to act on the ward's own behalf in all matters in which the ward is able, and to develop or regain, to the maximum extent possible, the capacity to meet the essential requirements for physical health or safety, to protect the ward's rights, and to manage the ward's financial resources.

(b) A partial guardian of an incapacitated person has only the powers and duties respecting the ward enumerated in the court order.

(c) A full guardian of an incapacitated person has the same powers and duties respecting the ward that a parent has respecting an unemancipated minor child except that the guardian is not liable for the care and maintenance of the ward and is not liable, solely by reason of the guardianship, to a person who is harmed by acts of the ward. Except as modified by order of the court, a full guardian's powers and duties include, but are not limited to, the following:

  1. the guardian is entitled to custody of the person of the ward and shall assure that the ward has a place of abode in the least restrictive setting consistent with the essential requirements for the ward's physical health and safety;
  2. the guardian shall assure the care, comfort, and maintenance of the ward;
  3. the guardian shall assure that the ward receives the services necessary to meet the essential requirements for the ward's physical health and safety and to develop or regain, to the maximum extent possible, the capacity to meet the ward's needs for physical health and safety;
  4. the guardian shall assure through the initiation of court action and other means that the ward enjoys all personal, civil, and human rights to which the ward is entitled;
  5. the 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;
  6. the guardian has the powers and duties of a conservator under this chapter; however, the guardian may not apply the ward's money or property for the services as guardian or for room and board that the guardian or the guardian's spouse, parent, or child has furnished the ward unless, before payment, the court finds that the ward is financially able to pay and that the charge is reasonable; notice of a request for payment approval shall be provided to at least one relative of the ward if possible; the guardian shall exercise care to conserve any excess money or property for the ward's needs;
  7. if a conservator of the estate of the ward has also been appointed, the guardian shall pay all of the ward's estate received by the guardian to the conservator for management as provided in AS 13.26.165--13.26.315.

(d) A guardian of a ward, for whom a conservator has also been appointed, shall have the custody and care of the ward and is entitled to receive reasonable sums for services and for room and board furnished to the ward as agreed upon between the guardian and the conservator. The guardian may request the conservator to expend the ward's estate for the ward's care and maintenance.

(e) A guardian may not

  1. place 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. consent 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;
  3. consent 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 when those procedures will serve only to prolong the dying process and offer no reasonable expectation of effecting a temporary or permanent cure of or relief from the illness or condition being treated unless the ward has clearly stated that lifesaving medical procedures not be withheld; a guardian is not civilly liable for acts or omissions under this paragraph unless the act or omission constitutes gross negligence or reckless or intentional misconduct;
  4. consent 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;
  5. consent on behalf of the ward to termination of the ward's parental rights;
  6. prohibit the ward from registering to vote or from casting a ballot at public election;
  7. prohibit the ward from applying for and obtaining a driver's license;
  8. prohibit the marriage or divorce of the ward.

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ARIZONA

Ariz. Rev. Stat. Ann. § 14-5312

§ 14-5312. General powers and duties of guardian

A. A guardian of an incapacitated person has the same powers, rights and duties respecting the guardian's ward that a parent has respecting the parent's unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the guardianship. 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 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, the guardian is entitled to custody of the person of the ward and may establish the ward's place of abode within or without this state.
  2. If entitled to custody of the ward the guardian shall make provision for the care, comfort and maintenance of the ward and, whenever appropriate, arrange for the ward's training and education. Without regard to custodial rights of the ward's person, the guardian shall take reasonable care of the ward's clothing, furniture, vehicles and other personal effects and commence protective proceedings if other property of the ward is in need of protection.
  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.
  4. If no conservator for the estate of the ward has been appointed, the guardian may:
    1. Institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform such person's duty.
    2. Receive money and tangible property deliverable to the ward and apply the money and property for support, care and education of the ward, but the guardian may not use funds from his ward's estate for room and board the guardian or the guardian's spouse, parent or child has furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs.
  5. A guardian is required to report the condition of the ward and of the estate that has been subject to the guardian's possession or control, as required by the court or court rule.
  6. If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care and education of the ward shall be paid to the conservator for management as provided in this chapter and the guardian must account to the conservator for funds expended.
  7. If appropriate, a guardian shall encourage the ward to develop maximum self-reliance and independence and shall actively work toward limiting or terminating the guardianship and seeking alternatives to guardianship.
  8. A guardian shall find the most appropriate and least restrictive setting for the ward consistent with the ward's needs, capabilities and financial ability.
  9. A guardian shall make reasonable efforts to secure appropriate medical and psychological care and social services for the ward.
  10. A guardian shall make reasonable efforts to secure appropriate training, education and social and vocational opportunities for his ward in order to maximize the ward's potential for independence.
  11. In making decisions concerning his ward, a guardian shall take into consideration the ward's values and wishes.
  12. The guardian is authorized to act pursuant to title 36, chapter 32.1
  13. The guardian of an incapacitated adult who has a developmental disability as defined in § 36-551 shall seek services that are in the best interest of the ward, taking into consideration:
    1. The ward's age.
    2. The degree or type of developmental disability.
    3. The presence of other handicapping conditions.
    4. The guardian's ability to provide the maximum opportunity to develop the ward's maximum potential, to provide a minimally structured residential program and environment for the ward and to provide a safe, secure, and dependable residential and program environment.
    5. The particular desires of the individual.

B. Any guardian of a ward for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for the guardian's services and for room and board furnished to the ward as agreed upon between the guardian and the conservator if the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

Ariz. Rev. Stat. Ann. § 36-3231

A.R.S. § 36-3231
§ 36-3231. Surrogate decision makers; priorities; limitations

A. If an adult patient is unable to make or communicate health care treatment decisions, a health care provider shall make a reasonable effort to locate and shall follow a health care directive. A health care provider shall also make a reasonable effort to consult with a surrogate. If the patient has a health care power of attorney that meets the requirements of § 36-3221, the patient's designated agent shall act as the patient's surrogate. However, if the court appoints a guardian for the express purpose of making health care treatment decisions, that guardian shall act as the patient's surrogate. If neither of these situations applies, the health care provider shall make reasonable efforts to contact the following individual or individuals in the indicated order of priority, who are available and willing to serve as the surrogate, who then have the authority to make health care decisions for the patient and who shall follow the patient's wishes if they are known:

  1. The patient's spouse, unless the patient and spouse are legally separated.
  2. An adult child of the patient. If the patient has more than one adult child, the health care provider shall seek the consent of a majority of the adult children who are reasonably available for consultation.
  3. A parent of the patient.
  4. If the patient is unmarried, the patient's domestic partner.
  5. A brother or sister of the patient.A close friend of the patient. For the purposes of this paragraph, “close friend” means an adult who has exhibited special care and concern for the patient, who is familiar with the patient's health care views and desires and who is willing and able to become involved in the patient's health care
    and to act in the patient's best interest.

B. If the health care provider cannot locate any of the people listed in subsection A of this section, the patient's attending physician may make health care treatment decisions for the patient after the physician consults with and obtains the recommendations of an institutional ethics committee. If this is not possible, the physician may make these decisions after consulting with a second physician who concurs with the physician's decision. For the purposes of this subsection, “institutional ethics committee” means a standing committee of a licensed health care institution appointed or elected to render advice concerning ethical issues involving medical treatment.

C. A person who makes a good faith medical decision pursuant to this section is immune from liability to the same extent and under the same conditions as prescribed in § 36-3205.

D. A surrogate may make decisions about mental health care treatment on behalf of a patient if the patient is found incapable. However, a surrogate who is not the patient's agent or guardian shall not make decisions to admit the patient to a level one behavioral health facility licensed by the department of health services, except as provided in subsection E of this section or § 14-5312.01, 14-5312.02 or 36-3281.

E. If the admitting officer for a mental health care provider has reasonable cause to believe after examination that the patient is incapable as defined in § 36-3281, subsection D and is likely to suffer serious physical harm or serious illness or to inflict serious physical harm on another person without immediate hospitalization, the patient may be admitted for inpatient treatment in a level one behavioral health facility based on informed consent given by any surrogate identified in subsection A of this section. The patient shall be discharged if a petition for court ordered evaluation or for temporary guardianship requesting authority for the guardian to consent to admission to a level one behavioral health facility has not been filed within forty-eight hours of admission or on the following court day if the forty-eight hours expires on a weekend or holiday. The discharge requirement prescribed in this section does not apply if the patient has given informed consent to voluntary treatment or if a mental health care provider is prohibited from discharging the patient under federal law.

Ariz. Rev. Stat. Ann. § 36-3203
§ 36-3203. Surrogate; authority; responsibilities; immunity

A. A person authorized as a surrogate to make health care decisions under this chapter is not responsible for paying the patient's health care costs unless the person is otherwise required to do so.

B. This chapter does not authorize a surrogate to consent to any act or omission to which the patient could not lawfully consent.

C. The surrogate shall make health care decisions for the patient in accordance with the patient's wishes as expressed in the health care directive. If the health care directive does not provide sufficient information to know what the patient would want in a particular circumstance, the surrogate shall base these decisions on the surrogate's knowledge of the patient's values if those are known or can be determined to the surrogate's satisfaction. If neither the health care directive nor the surrogate's knowledge of the patient's values provides a sufficient basis for making a health care decision, the surrogate shall decide based on the surrogate's good faith belief as to what is in the patient's best interest.

D. A surrogate who makes good faith health care decisions for a patient is not subject to civil or criminal liability for those decisions. Acts and refusals to act made in reliance on the provisions of a health care directive are presumed to be made in good faith. A court shall base a finding of an absence of good faith on information known to the surrogate and shall enter its finding only after it has made a determination of bad faith in written findings of fact based on clear and convincing evidence of improper motive. For the purposes of this subsection, “good faith” includes all health care decisions, acts and refusals to act based on a surrogate's reasonable belief of a patient's desires or a patient's best interest if these decisions, acts or refusals to act are not contrary to the patient's express written directions in a valid health care directive.

E. A surrogate who is not the patient's agent or guardian shall not consent to or approve the permanent withdrawal of the artificial administration of food or fluid.

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ARKANSAS

Ark. Code Ann. § 28-65-302 (West)

§ 28-65-302. Decisions requiring court approval

(a)

(1) No guardian appointed prior to October 1, 2001, shall make any of the following decisions without filing a petition and receiving express court approval:

  1. 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;
  2. Consent to withholding life-saving treatment;
  3. Authorize experimental medical procedures;
  4. Authorize termination of parental rights;
  5. Prohibit the incapacitated person from voting;
  6. Prohibit the incapacitated person from obtaining a driver's license; or
  7. Consent to a settlement or compromise of any claim by or against the incapacitated person or his or her estate.

(2) No guardian appointed on or after October 1, 2001, shall make any of the following decisions without filing a petition and receiving express court approval:

  1. 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;
  2. Consent to withholding life-saving treatment;
  3. Authorize experimental medical procedures;
  4. Authorize termination of parental rights;
  5. Authorize an incapacitated person to vote;
  6. Prohibit the incapacitated person from obtaining a driver's license; or
  7. Consent to a settlement or compromise of any claim by or against the incapacitated person or his or her estate.

(b) However, the provisions of subdivision (a)(2) of this section shall not apply to written requests under § 20-17-214.

Ark. Code Ann. § 20-17-214 (West)

§ 20-17-214. Who may execute written request for another

(a) If any person is a minor or an adult where a valid declaration does not exist and a health care proxy has not been designated and who, in the opinion of the attending physician, is no longer able to make health care decisions, then the declaration may be executed in the same form on his or her behalf by the first of the following individuals or category of individuals who exist and are reasonably available for consultation:

  1. A legal guardian of the patient, if one has been appointed;
  2. In the case of an unmarried patient under the age of eighteen (18), the parents of the patient;
  3. The patient's spouse;
  4. The patient's adult child or, if there is more than one (1), then a majority of the patient's adult children participating in the decision;
  5. The parents of a patient over the age of eighteen (18);
  6. The patient's adult sibling or, if there is more than one (1), then a majority of the patient's adult siblings participating in the decision;
  7. Persons standing in loco parentis to the patient; or
  8. A majority of the patient's adult heirs at law who participate in the decision.

(b)

  1. Even if an advance directive that includes a directive to withhold nutrition or hydration, or both, is signed by a person under this section, if the terminally ill patient requests nutrition or hydration, his or her wishes shall be honored.
  2. Unless the use of artificial means is specifically requested, a patient's request for nutrition or hydration, or both, shall not be honored by use of artificial means if doing so would require the insertion of any apparatus into the patient's body.

Ark. Code Ann. § 20-17-202 (West)

§ 20-17-202. Life-sustaining procedures--Implementation--Declaration

(a) An individual of sound mind and eighteen (18) or more years of age may execute at any time a declaration governing the withholding or withdrawal of life-sustaining treatment. The declaration must be signed by the declarant, or another at the declarant's direction, and witnessed by two (2) individuals.

Ark. Code Ann. § 20-17-203 (West)

§ 20-17-203. When declaration operative

A declaration becomes operative when (i) it is communicated to the attending physician and (ii) the declarant is determined by the attending physician and another physician in consultation either to be in a terminal condition and no longer able to make decisions regarding administration of life-sustaining treatment or to be permanently unconscious. When the declaration becomes operative, the attending physician and other health care providers shall act in accordance with its provisions or comply with the transfer provisions of § 20-17-207.

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CALIFORNIA

Cal. Prob. Code § 4650 (West)

§ 4650. Legislative findings

The Legislature finds the following:

(a) In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.

(b) Modern medical technology has made possible the artificial prolongation of human life beyond natural limits. In the interest of protecting individual autonomy, this prolongation of the process of dying for a person for whom continued health care does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.

(c) In the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment.

Cal. Prob. Code § 4684 (West)

§ 4684. Decisions to be made in principal's best interests

An agent shall make a health care decision in accordance with the principal's individual health care instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.

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COLORADO

Colo. Rev. Stat. Ann. § 15-14-314 (West)

§ 15-14-314. Duties of guardian

  1. Except as otherwise limited by the court, a guardian shall make decisions regarding the ward's support, care, education, health, and welfare. A guardian shall exercise authority only as necessitated by the ward's limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian, at all times, shall act in the ward's best interest and exercise reasonable care, diligence, and prudence.
  2. A guardian shall:
    1. Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;
    2. Take reasonable care of the ward's personal effects and bring protective proceedings if necessary to protect the property of the ward;
    3. Expend money of the ward that has been received by the guardian for the ward's current needs for support, care, education, health, and welfare;
    4. Conserve any excess money of the ward for the ward's future needs, but if a conservator has been appointed for the estate of the ward, the guardian shall pay the money to the conservator, at least quarterly, to be conserved for the ward's future needs;
    5. Immediately notify the court if the ward's condition has changed so that the ward is capable of exercising rights previously removed;
    6. Inform the court of any change in the ward's custodial dwelling or address; and
    7. Immediately notify the court in writing of the ward's death.

Colo. Rev. Stat. Ann. § 15-14-315 (West)

§ 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:
    1. Apply for and receive money payable to the ward or the ward's guardian or custodian for the support of the ward under the terms of any statutory system of benefits or insurance or any private contract, devise, trust, conservatorship, or custodianship;
    2. If otherwise consistent with the terms of any order by a court of competent jurisdiction relating to custody of the ward, take custody of the ward and establish the ward's place of custodial dwelling, but may only establish or move the ward's place of dwelling outside this state upon express authorization of the court;
    3. If a conservator for the estate of the ward has not been appointed with existing authority, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the ward or to pay money for the benefit of the ward;
    4. Consent to medical or other care, treatment, or service for the ward; and
    5. If reasonable under all of the circumstances, delegate to the ward certain responsibilities for decisions affecting the ward's well-being.
  2. The court may specifically authorize or direct the guardian to consent to the adoption or marriage of the ward.

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CONNECTICUT

Conn. Gen. Stat. Ann. § 45a-656 (West)

§ 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:

  1. The duty and responsibility for the general custody of the conserved person;
  2. the authority to establish the conserved person's residence within the state, subject to the provisions of section 45a-656b;
  3. the authority to give consent for the conserved person's medical or other professional care, counsel, treatment or service;
  4. the duty to provide for the care, comfort and maintenance of the conserved person; and
  5. the duty to take reasonable care of the conserved person's personal effects.

(b) In carrying out the duties and authority assigned by the court, the conservator of the person shall exercise such duties and authority in a manner that is the least restrictive means of intervention and shall

  1. assist the conserved person in removing obstacles to independence,
  2. assist the conserved person in achieving self-reliance,
  3. ascertain the conserved person's views,
  4. make decisions in conformance with the conserved person's reasonable and informed expressed preferences,
  5. make all reasonable efforts to ascertain the health care instructions and other wishes of the conserved person, and
  6. make decisions in conformance with (A) the conserved person's expressed health care preferences, including health care instructions and other wishes, if any, described in section 19a-580e, or validly executed health care instructions described in section 19a-580g, or (B) a health care decision of a health care representative described in subsection (b) of section 19a-580e, except under a circumstance set forth in subsection (b) of section 19a-580e. The conservator shall afford the conserved person the opportunity to participate meaningfully in decision-making in accordance with the conserved person's abilities and shall delegate to the conserved person reasonable responsibility for decisions affecting such conserved person's well-being.

(c) The conservator shall report at least annually to the probate court that appointed the conservator regarding the condition of the conserved person, the efforts made to encourage the independence of the conserved person and the conservator's statement on whether the appointment of the conservator is the least restrictive means of intervention for managing the conserved person's needs. The duties, responsibilities and authority assigned pursuant to section 45a-650 or set forth in this section shall be carried out within the resources available to the conserved person, either through the conserved person's own estate or through private or public assistance.

(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 sections 17a-75 to 17a-83, inclusive, 17a-456 to 17a-484, inclusive, 17a-495 to 17a-528, inclusive, 17a-540 to 17a-550, inclusive, 17a-560 to 17a-576, inclusive, 17a-615 to 17a-618, inclusive, and 17a-621 to 17a-664, inclusive, and chapter 359.1

Conn. Gen. Stat. Ann. § 19a-571 (West)

§ 19a-571. Liability re removal of life support system of incapacitated patient. Consideration of wishes of patient

(a) Subject to the provisions of subsection (c) of this section, any physician licensed under chapter 3701 or any licensed medical facility who or which withholds, removes or causes the removal of a life support system of an incapacitated patient shall not be liable for damages in any civil action or subject to prosecution in any criminal proceeding for such withholding or removal, provided (1) the decision to withhold or remove such life support system is based on the best medical judgment of the attending physician in accordance with the usual and customary standards of medical practice; (2) the attending physician deems the patient to be in a terminal condition or, in consultation with a physician qualified to make a neurological diagnosis who has examined the patient, deems the patient to be permanently unconscious; and (3) the attending physician has considered the patient's wishes concerning the withholding or withdrawal of life support systems. In the determination of the wishes of the patient, the attending physician shall consider the wishes as expressed by a document executed in accordance with sections 19a-575 and 19a-575a, if any such document is presented to, or in the possession of, the attending physician at the time the decision to withhold or terminate a life support system is made. If the wishes of the patient have not been expressed in a living will the attending physician shall determine the wishes of the patient by consulting any statement made by the patient directly to the attending physician and, if available, the patient's health care representative, the patient's next of kin, the patient's legal guardian or conservator, if any, any person designated by the patient in accordance with section 1-56r and any other person to whom the patient has communicated his wishes, if the attending physician has knowledge of such person. All persons acting on behalf of the patient shall act in good faith. If the attending physician does not deem the incapacitated patient to be in a terminal condition or permanently unconscious, beneficial medical treatment including nutrition and hydration must be provided.

(b) A physician qualified to make a neurological diagnosis who is consulted by the attending physician pursuant to subdivision (2) of subsection (a) of this section shall not be liable for damages or subject to criminal prosecution for any determination made in accordance with the usual and customary standards of medical practice.

(c) In the case of an infant, as defined in 45 CFR 1340.15 (b), the physician or licensed medical facility shall comply with the provisions of 45 CFR 1340.15 (b)(2) in addition to the provisions of subsection (a) of this section.

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DELAWARE

Del. Code Ann. tit. 12, § 3922 (West)

§ 3922. General powers and duties of the guardian of the person

(a) The Court shall grant to the guardian of the person such powers, rights and duties which are necessary to protect, manage and care for the disabled person. The Court may at any time change the powers of the guardian of the person.

(b) The guardian of the person may exercise the same powers, rights and duties respecting the care, maintenance and treatment of the disabled person that a parent has respecting the parent's own unemancipated minor child, except that the guardian of the person is not liable to third persons for acts of the disabled person solely by reason of the guardianship relationship. Except as modified by the order of guardianship and without qualifying the foregoing, a guardian of the person has the following powers and duties:

  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 disabled person, the guardian is entitled to custody of the disabled person and may establish the disabled person's place of abode within or without this State. 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.
  2. If entitled to custody of the disabled person, the guardian shall make provision for the care, comfort and maintenance of the disabled person and, if appropriate, arrange for the disabled person's training and education. Without regard to custodial rights of the disabled person, the guardian shall take reasonable care of the disabled person's clothing, furniture, vehicle and other personal effects in the immediate possession of the disabled person and commence guardianship of the property proceedings if other property of the disabled person is in need of protection.
  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. 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, but shall take such action as the guardian objectively believes to be in the best interest of the disabled person.

(c) A guardian of the person of a disabled person for whom a guardian of the property also has been appointed shall control the custody and care of the disabled person and is entitled to receive reasonable compensation for the guardian's services and for room and board furnished to the disabled person as approved by the Court. Compensation of the public guardian shall be governed by § 3984 of this title. The guardian of the person may request the guardian of the property to make payment to third parties or institutions for the disabled person's care and maintenance.

(d) The guardian of the person shall not be required to expend the guardian's own money for the support or care of the disabled person.

Del. Code Ann. tit. 16, § 2506 (West)
§ 2506. Decisions by guardian

A guardian shall comply with the adult disabled person's individual instructions and may not revoke the adult disabled person's advance health-care directive unless the appointing court expressly so authorizes. Nothing in this chapter shall limit the jurisdiction of the Court of Chancery over the person and property of a disabled person.

Del. Code Ann. tit. 16, § 2507 (West)
§ 2507. Surrogates

(a) A surrogate may make a health care decision to treat, withdraw or withhold treatment for an adult patient if the patient has been determined by the attending physician to lack capacity and there is no agent or guardian, or if the directive does not address the specific issue. This determination shall be confirmed in writing in the patient's medical record by the attending physician. Without this determination and confirmation, the patient is presumed to have capacity and may give or revoke an advance health care directive or disqualify a surrogate.

(b)

  1. A mentally competent patient may designate any individual to act as a surrogate by personally informing the supervising health-care provider in the presence of a witness. The designated surrogate may not act as a witness. The designation of the surrogate shall be confirmed in writing in the patient's medical record by the supervising health-care provider and signed by the witness.
  2. In the absence of a designation or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in the descending order of priority, may act, when permitted by this section, as a surrogate and shall be recognized as such by the supervising health-care provider:
    1. The spouse, unless a petition for divorce has been filed;
    2. An adult child;
    3. A parent;
    4. An adult sibling;
    5. An adult grandchild;
    6. An adult niece or nephew.

Individuals specified in this subsection are disqualified from acting as a surrogate if the patient has filed a petition for a Protection From Abuse order against the individual or if the individual is the subject of a civil or criminal order prohibiting contact with the patient.

  1. If none of the individuals eligible to act as a surrogate under subsection (b) of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values and who is reasonably available may make health care decisions to treat, withdraw or withhold treatment on behalf of the patient if appointed as a guardian for that purpose by the Court of Chancery.
  2. A supervising health-care provider may require an individual claiming the right to act as a surrogate for a patient to provide a written declaration under the penalty of perjury stating facts and circumstances sufficient to establish the claimed authority.
  3. A mentally competent patient may at any time disqualify a member of the patient's family from acting as the patient's surrogate by a signed writing or by personally informing the health-care provider of the disqualification.
  4. A surrogate may make a decision to provide, withhold or withdraw a life-sustaining procedure if the patient has a qualifying condition documented in writing with its nature and cause, if known, in the patient's medical record by the attending physician.
  5. A surrogate's decision on behalf of the patient to treat, withdraw or withhold treatment shall be made according to the following paragraphs and otherwise meet the requirements of this chapter:
    a. Decisions shall be made in consultation with the attending physician.
    b. 1. The surrogate shall make a health-care decision to treat, withdraw or withhold treatment in accordance with the patient's individual instructions, if any, and other wishes to the extent known by the surrogate.

    2. If the patient's instructions or wishes are not known or clearly applicable, the surrogate's decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent the surrogate knows or is able to determine, the surrogate's decision is to take into account, including, but not limited to, the following factors if applicable:
    1. The patient's personal, philosophical, religious and ethical values;
    2. The patient's likelihood of regaining decision making capacity;
    3. The patient's likelihood of death;
    4. The treatment's burdens on and benefits to the patient;
    5. Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care providers or religious leaders.
    3. If the surrogate is unable to determine what the patient would have done or intended under the circumstances, the surrogate's decision shall be made in the best interest of the patient. To the extent the surrogate knows and is able to determine, the surrogate's decision is to take into account, including, but not limited to, the factors, if applicable, stated in subsection (b)(7)b.2. of this section.
  6. In the event an individual specified in subsection (b)(2) of this section claims that the individual has not been recognized or consulted as a surrogate or if persons with equal decision making priority under subsection (b)(2) of this section cannot agree who shall be a surrogate or disagree about a health-care decision, and a patient who lacks capacity is receiving care in a health-care institution, the attending physician or an individual specified in subsection (b)(2) of this section may refer the case to an appropriate committee of the health-care institution for a recommendation in compliance with this chapter, and the attending physician may act in accordance with the recommendation of the committee or transfer the patient in accordance with the provisions of § 2508(g) of this title. A physician who acts in accordance with the recommendation of the committee is not subject to civil or criminal liability or to discipline for unprofessional conduct for any claim based on lack of consent or authorization for the action.

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DISTRICT OF COLUMBIA

D.C. Code § 21-2047

§ 21-2047. Powers and duties of general guardian and limited guardian.

Except as limited pursuant to section 21-2044, a general guardian or a limited guardian of an incapacitated individual is responsible for care, custody, and control of the ward, but is not personally liable to third persons by reason of that responsibility for acts of the ward.

(a) In particular and without qualifying the foregoing, a general guardian or limited guardian shall:

  1. Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;
  2. Take reasonable care of the ward's personal effects and commence protective proceedings, if necessary, to protect other property of the ward;
  3. Apply any available money of the ward to the ward's current needs for support, care, habilitation, and treatment;
  4. Conserve any excess money of the ward for the ward's future needs, but if a conservator has been appointed for the estate of the ward, the guardian, at least quarterly, shall pay to the conservator money of the ward to be conserved for the ward's future needs;
  5. Report in writing the condition of the ward and of the ward's estate that has been subject to the guardian's possession or control, as ordered by the court on petition of any person interested in the ward's welfare or on any order of the court, but at least semiannually;
  6. Make decisions on behalf of the ward by conforming as closely as possible to a standard of substituted judgment or, if the ward's wishes are unknown and remain unknown after reasonable efforts to discern them, make the decision on the basis of the ward's best interests;
  7. Include the ward in the decision-making process to the maximum extent of the ward's ability; and
  8. (8) Encourage the ward to act on his or her own behalf whenever he or she is able to do so, and to develop or regain capacity to make decisions in those areas in which he or she is in need of decision-making assistance, to the maximum extent possible.

(b) A general guardian or limited guardian may:

  1. Receive money payable for the support of the ward under the terms of any statutory benefit or insurance system or any private contract, devise, trust, conservatorship, or custodianship;
  2. Take custody of the person of the ward and establish the ward's place of abode within or without the District, if consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward;
  3. Institute proceedings, including administrative proceedings, or take other appropriate action to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward, if no conservator for the estate of the ward has been appointed;
  4. Consent to medical examination and 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 the guardian fails to act in good faith;
  5. Obtain medical records for the purpose of applying for government entitlements or private benefits and have the status of a legal representative under the District of Columbia Mental Health Information Act of 1978, effective March 3, 1979 (D.C. Law 2-136; § 7-1201.01 et seq.); and
  6. If reasonable under all of the circumstances, delegate to the ward certain responsibilities for decisions affecting the ward's well-being.

(c) [Repealed].

(d) A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board, and clothing personally provided to the ward, but only as approved by order of the court pursuant to section 21-2060(a).

D.C. Code § 21-2047.01
§ 21-2047.01. Limitations on temporary, limited, and general guardians.

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;
  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;
  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 Chapter 5 of Title 21, except that a guardian may function as a petitioner for the commitment consistent with the requirements of Chapter 5 of Title 21 or Chapter 13 of Title 7;
  5. To consent to the waiver of any substantive or procedural right of the incapacitated individual in any proceeding arising from an insanity acquittal; or
  6. To prohibit the marriage or divorce, or consent to the termination of parental rights, unless the power is expressly set forth in the order of appointment or after subsequent hearing and order of the court.

D.C. Code § 21-2047.02
§ 21-2047.02. Powers and duties of emergency and health-care guardians.

(a) Except as limited by sections 21-2046 and 21-2047.01, an emergency guardian or health-care guardian is responsible for providing substituted consent for an incapacitated individual and for any other duties authorized by the court, but is not personally liable to third persons by reason of that responsibility or acts of the incapacitated individual.

(b) An emergency or health-care guardian shall:

  1. Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of his or her capacities, limitations, needs, opportunities, and physical and mental health;
  2. Make decisions on behalf of the ward by conforming as closely as possible to a standard of substituted judgment or, if the ward's wishes are unknown and remain unknown after reasonable efforts to discern them, make the decision on the basis of the ward's best interests;
  3. Include the ward in the decision-making process to the maximum extent of the ward's ability.
  4. Encourage the individual to act on his or her own behalf whenever he or she is able to do so, and to develop or regain capacity to make decisions in those areas in which he or she is in need of decision-making assistance, to the maximum extent possible; and
  5. Make any report the court requires.

(c) An emergency or health-care guardian may:

  1. Grant, refuse, or withdraw consent to medical examination and health-care treatment for an individual who has been deemed incapacitated pursuant to section 21-2204;
  2. Obtain medical records for the purpose of providing substituted consent pursuant to section 21-2210; and
  3. Have the status of a legal representative under Chapter 12 of Title 7.

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FLORIDA

Fla. Stat. Ann. § 744.1012 (West)

744.1012. Legislative intent

The Legislature finds that adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary. The Legislature further finds that it is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs. Recognizing that every individual has unique needs and differing abilities, the Legislature declares that it is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.

Fla. Stat. Ann. § 744.361 (West)
744.361. Powers and duties of guardian

  1. The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor shall exercise the powers of a plenary guardian.
  2. The guardian shall file an initial guardianship report in accordance with s. 744.362.
  3. The guardian shall file a guardianship report annually in accordance with s. 744.367.
  4. The guardian of the person shall implement the guardianship plan.
  5. When two or more guardians have been appointed, the guardians shall consult with each other.
  6. A guardian who is given authority over any property of the ward shall:
    1. Protect and preserve the property and invest it prudently as provided in chapter 518, apply it as provided in s. 744.397, and account for it faithfully.
    2. Perform all other duties required of him or her by law.
    3. At the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.
  7. The guardian shall observe the standards in dealing with the guardianship property that would be observed by a prudent person dealing with the property of another, and, if the guardian has special skills or is named guardian on the basis of representations of special skills or expertise, he or she is under a duty to use those skills.
  8. The guardian, if authorized by the court, shall take possession of all of the ward's property and of the rents, income, issues, and profits from it, whether accruing before or after the guardian's appointment, and of the proceeds arising from the sale, lease, or mortgage of the property or of any part. All of the property and the rents, income, issues, and profits from it are assets in the hands of the guardian for the payment of debts, taxes, claims, charges, and expenses of the guardianship and for the care, support, maintenance, and education of the ward or the ward's dependents, as provided for under the terms of the guardianship plan or by law.
  9. A professional guardian must ensure that each of the guardian's wards is personally visited by the guardian or one of the guardian's professional staff at least once each calendar quarter. During the personal visit, the guardian or the guardian's professional staff person shall assess:
    1. The ward's physical appearance and condition.
    2. The appropriateness of the ward's current living situation.
    3. The need for any additional services and the necessity for continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct service, health, and personal care needs.

This subsection does not apply to a professional guardian who has been appointed only as guardian of the property.

Fla. Stat. Ann. § 765.401 (West)

765.401. The proxy

  1. If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:
    1. The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
    2. The patient's spouse;
    3. An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
    4. A parent of the patient;
    5. The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
    6. An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or
    7. A close friend of the patient.
    8. A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record.
  2. Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
  3. Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.
  4. Nothing in this section shall be construed to preempt the designation of persons who may consent to the medical care or treatment of minors established pursuant to s. 743.0645.

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GEORGIA

Ga. Code Ann. § 29-4-22 (West)

§ 29-4-22. General duties of guardian; fiduciary status; personal liability

(a) Except as otherwise provided by law or by the court, a guardian shall make decisions regarding the ward's support, care, education, health, and welfare. A guardian shall, to the extent feasible, encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs. To the extent known, a guardian, in making decisions, shall consider the expressed desires and personal values of the ward. A guardian shall at all times act as a fiduciary in the ward's best interest and exercise reasonable care, diligence, and prudence.

(b) A guardian shall:

  1. Respect the rights and dignity of the ward;
  2. Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;
  3. If necessary, petition to have a conservator appointed;
  4. Endeavor to cooperate with the conservator, if any;
  5. Take reasonable care of the ward's personal effects;
  6. Arrange for the support, care, education, health, and welfare of the ward, considering the ward's needs and available resources;
  7. Expend money of the ward that has been received by the guardian for the ward's current needs for support, care, education, health, and welfare;
  8. Conserve for the ward's future needs any excess money of the ward received by the guardian; provided, however, that if a conservator has been appointed for the ward, the guardian shall pay to the conservator, at least quarterly, money to be conserved for the ward's future needs;
  9. Within 60 days after appointment and within 60 days after each anniversary date of appointment, file with the court and provide to the ward and to the conservator, if any, a personal status report concerning the ward, which shall include:
    1. A description of the ward's general condition, changes since the last report, and needs;
    2. All addresses of the ward during the reporting period and the living arrangements of the ward for all addresses;
    3. A description of the amount and expenditure of any funds that were received by the guardian pursuant to paragraph (7) of this subsection; and
    4. Recommendations for any alteration in the guardianship order;
  10. Promptly notify the court of any change in the ward's condition that in the opinion of the guardian might require modification or termination of the guardianship;
  11. Promptly notify the court of any conflict of interest between the ward and the guardian when the conflict arises or becomes known to the guardian and take any action as is required by Code Section 29-4-24; and
  12. Keep the court informed of the guardian's current address.

(c) A guardian, solely by reason of the guardian-ward relationship, is not personally liable for:

  1. The ward's expenses or the expenses of those persons who are entitled to be supported by the ward;
  2. Contracts entered into in the guardian's fiduciary capacity;
  3. The acts or omissions of the ward;
  4. Obligations arising from ownership or control of property of the ward; or
  5. Other acts or omissions occurring in the course of the guardianship.

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HAWAII

Haw. Rev. Stat. § 560:5-314 (West)

§ 560:5-314. Duties of guardian

(a) Except as otherwise limited by the court, a guardian shall make decisions regarding the ward's support, care, education, health, and welfare. A guardian shall exercise authority only as necessitated by the ward's limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian at all times shall act in the ward's best interest and exercise reasonable care, diligence, and prudence.

(b) A guardian shall:

  1. Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;
  2. Take reasonable care of the ward's personal effects and bring protective proceedings if necessary to protect the property of the ward;
  3. Expend money of the ward that has been received by the guardian, for the ward's current needs for support, care, education, health, and welfare;
  4. Conserve any excess money of the ward for the ward's future needs; provided that if a conservator has been appointed for the estate of the ward, the guardian shall pay the money to the conservator, at least quarterly, to be conserved for the ward's future needs;
  5. Immediately notify the court if the ward's condition has changed so that the ward is capable of exercising rights previously removed; and
  6. Inform the court of any change in the ward's custodial dwelling or address.

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IDAHO

Idaho Code Ann. § 15-5-312 (West)

§ 15-5-312. General powers and duties of guardian

  1. A guardian of an incapacitated person has the powers and responsibilities of a parent who has not been deprived of custody of his unemancipated minor child except that a guardian is not legally obligated to provide from his own funds for the ward and is not liable to third persons for acts of the ward, and except as hereinafter limited. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court when the guardianship is limited:
    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. The guardian shall take reasonable measures to ensure that a convicted felon does not reside with, care for or visit the ward without court approval.
    2. If entitled to custody of his ward he shall make provision for the care, comfort and maintenance of his ward, and, whenever appropriate, arrange for his training and education. Without regard to custodial rights of the ward's person, he shall take reasonable care of his ward's clothing, furniture, vehicles and other personal effects and commence protective proceedings if other property of his ward is in need of protection.
    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. A guardian shall be automatically entitled to any information governed by the health insurance portability and accountability act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 164, and the appointment of such guardian shall be deemed to grant such release authority.
    4. If no conservator for the estate of the ward has been appointed, the guardian may institute proceedings to appoint a conservator. In no circumstances shall the guardian exercise any of the powers of a conservator.
    5. A guardian shall be required to report as provided in section 15-5-419, Idaho Code.
    6. If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this code, and the guardian must account to the conservator for funds expended.
  2. Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward, and is entitled to receive reasonable sums for his services and for room and board furnished to the ward as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.
  3. A guardian may delegate certain of his responsibilities for decisions affecting the ward's well-being to the ward when reasonable under all of the circumstances.

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ILLINOIS

755 Ill. Comp. Stat. 5/11a-17

5/11a-17. Duties of personal guardian

§ 11a-17. Duties of personal guardian.

(a) To the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and the ward's minor and adult dependent children and shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance, and professional services as are appropriate, but the ward's spouse may not be deprived of the custody and education of the ward's minor and adult dependent children, without the consent of the spouse, unless the court finds that the spouse is not a fit and competent person to have that custody and education. The guardian shall assist the ward in the development of maximum self-reliance and independence. The guardian of the person may petition the court for an order directing the guardian of the estate to pay an amount periodically for the provision of the services specified by the court order. If the ward's estate is insufficient to provide for education and the guardian of the ward's person fails to provide education, the court may award the custody of the ward to some other person for the purpose of providing education. If a person makes a settlement upon or provision for the support or education of a ward, the court may make an order for the visitation of the ward by the person making the settlement or provision as the court deems proper. 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.

(a-5) If the ward filed a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act1 before the ward was adjudicated a disabled person under this Article, the guardian of the ward's person and estate may maintain that action for dissolution of marriage on behalf of the ward.

(b) If the court directs, the guardian of the person shall file with the court at intervals indicated by the court, a report that shall state briefly: (1) the current mental, physical, and social condition of the ward and the ward's minor and adult dependent children; (2) their present living arrangement, and a description and the address of every residence where they lived during the reporting period and the length of stay at each place; (3) a summary of the medical, educational, vocational, and other professional services given to them; (4) a resume of the guardian's visits with and activities on behalf of the ward and the ward's minor and adult dependent children; (5) a recommendation as to the need for continued guardianship; (6) any other information requested by the court or useful in the opinion of the guardian. The Office of the State Guardian shall assist the guardian in filing the report when requested by the guardian. The court may take such action as it deems appropriate pursuant to the report.

(c) Absent court order pursuant to the Illinois Power of Attorney Act directing a guardian to exercise powers of the principal under an agency that survives disability, the guardian has no power, duty, or liability with respect to any personal or health care matters covered by the agency. This subsection (c) applies to all agencies, whenever and wherever executed.

(d) A guardian acting as a surrogate decision maker under the Health Care Surrogate Act2 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. 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. Nothing in this Section shall prevent an agent acting under a power of attorney for health care from exercising his or her authority under the Illinois Power of Attorney Act3 without further court order, unless a court has acted under Section 2-10 of the Illinois Power of Attorney Act.4 If a guardian is also a health care agent for the ward under a valid power of attorney for health care, the guardian acting as agent may execute his or her authority under that act without further court order.

(e) Decisions made by a guardian on behalf of a ward shall be made in accordance with the following standards for decision making. Decisions made by a guardian on behalf of a ward may be made by conforming as closely as possible to what the ward, if competent, would have done or intended under the circumstances, taking into account evidence that includes, but is not limited to, the ward's personal, philosophical, religious and moral beliefs, and ethical values relative to the decision to be made by the guardian. Where possible, the guardian shall determine how the ward would have made a decision based on the ward's previously expressed preferences, and make decisions in accordance with the preferences of the ward. If the ward's wishes are unknown and remain unknown after reasonable efforts to discern them, the decision shall be made on the basis of the ward's best interests as determined by the guardian. In determining the ward's best interests, the guardian shall weigh the reason for and nature of the proposed action, the benefit or necessity of the action, the possible risks and other consequences of the proposed action, and any available alternatives and their risks, consequences and benefits, and shall take into account any other information, including the views of family and friends, that the guardian believes the ward would have considered if able to act for herself or himself.

(f) Upon petition by any interested person (including the standby or short-term guardian), with such notice to interested persons as the court directs and a finding by the court that it is in the best interest of the disabled person, the court may terminate or limit the authority of a standby or short-term guardian or may enter such other orders as the court deems necessary to provide for the best interest of the disabled person. The petition for termination or limitation of the authority of a standby or short-term guardian may, but need not, be combined with a petition to have another guardian appointed for the disabled person.

IL ST CH 755 § 40/25
40/25. Surrogate decision making

§ 25. Surrogate decision making.

(a) When a patient lacks decisional capacity, the health care provider must make a reasonable inquiry as to the availability and authority of a health care agent under the Powers of Attorney for Health Care Law. When no health care agent is authorized and available, the health care provider must make a reasonable inquiry as to the availability of possible surrogates listed in items (1) through (4) of this subsection. For purposes of this Section, a reasonable inquiry includes, but is not limited to, identifying a member of the patient's family or other health care agent by examining the patient's personal effects or medical records. If a family member or other health care agent is identified, an attempt to contact that person by telephone must be made within 24 hours after a determination by the provider that the patient lacks decisional capacity. No person shall be liable for civil damages or subject to professional discipline based on a claim of violating a patient's right to confidentiality as a result of making a reasonable inquiry as to the availability of a patient's family member or health care agent, except for willful or wanton misconduct.
The surrogate decision makers, as identified by the attending physician, are then authorized to make decisions as follows: (i) for patients who lack decisional capacity and do not have a qualifying condition, medical treatment decisions may be made in accordance with subsection (b-5) of Section 20; and (ii) for patients who lack decisional capacity and have a qualifying condition, medical treatment decisions including whether to forgo life-sustaining treatment on behalf of the patient may be made without court order or judicial involvement in the following order of priority:

  1. the patient's guardian of the person;
  2. the patient's spouse;
  3. any adult son or daughter of the patient;
  4. either parent of the patient;
  5. any adult brother or sister of the patient;
  6. any adult grandchild of the patient;
  7. a close friend of the patient;
  8. the patient's guardian of the estate.

The health care provider shall have the right to rely on any of the above surrogates if the provider believes after reasonable inquiry that neither a health care agent under the Powers of Attorney for Health Care Law nor a surrogate of higher priority is available.

Where there are multiple surrogate decision makers at the same priority level in the hierarchy, it shall be the responsibility of those surrogates to make reasonable efforts to reach a consensus as to their decision on behalf of the patient regarding the forgoing of life-sustaining treatment. If 2 or more surrogates who are in the same category and have equal priority indicate to the attending physician that they disagree about the health care matter at issue, a majority of the available persons in that category (or the parent with custodial rights) shall control, unless the minority (or the parent without custodial rights) initiates guardianship proceedings in accordance with the Probate Act of 1975.1 No health care provider or other person is required to seek appointment of a guardian.

(b) After a surrogate has been identified, the name, address, telephone number, and relationship of that person to the patient shall be recorded in the patient's medical record.

(c) Any surrogate who becomes unavailable for any reason may be replaced by applying the provisions of Section 25 in the same manner as for the initial choice of surrogate.

(d) In the event an individual of a higher priority to an identified surrogate becomes available and willing to be the surrogate, the individual with higher priority may be identified as the surrogate. In the event an individual in a higher, a lower, or the same priority level or a health care provider seeks to challenge the priority of or the life-sustaining treatment decision of the recognized surrogate decision maker, the challenging party may initiate guardianship proceedings in accordance with the Probate Act of 1975.

(e) The surrogate decision maker shall have the same right as the patient to receive medical information and medical records and to consent to disclosure.

(f) Any surrogate shall have the authority to make decisions for the patient until removed by the patient who no longer lacks decisional capacity, appointment of a guardian of the person, or the patient's death.

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INDIANA
Ind. Code Ann. § 29-3-8-1 (West)

29-3-8-1 Enumerated responsibilities

Sec. 1. (a) The guardian of a minor (other than a temporary guardian) has all of the responsibilities and authority of a parent and, unless otherwise ordered by the court, is responsible for the preservation of all the minor's property regardless of where the property is located. In addition and without limitation, the guardian:

  1. must be or shall become sufficiently acquainted with the minor and maintain sufficient contact with the minor to know of the minor's capabilities, disabilities, limitations, needs, opportunities, and physical and mental health;
  2. shall, upon termination of the guardianship, comply with the applicable provisions of IC 29-3-12;
  3. to the extent the available parental income and property are insufficient to fulfill the parental obligation of support to the minor, shall apply the guardianship income and, to the extent the guardianship income is insufficient, the principal of the guardianship property to the minor's current needs for support, and protect and conserve that portion of the minor's property that is in excess of the minor's current needs;
  4. shall report the physical and mental condition of the minor to the court as ordered by the court; and
  5. has any other responsibilities that the court may order.

(b) The guardian (other than a temporary guardian) of an incapacitated person is responsible for the incapacitated person's care and custody and for the preservation of the incapacitated person's property to the extent ordered by the court. In addition and without limitation, the guardian of an incapacitated person:

  1. has, with respect to the incapacitated person, the same responsibilities as those of a guardian of a minor enumerated in subsection (a)(1), (a)(3), and (a)(4);
  2. shall, upon termination of the guardianship, comply with the applicable provisions of IC 29-3-12; and
  3. has any other responsibilities that the court may order.

Ind. Code Ann. § 29-3-8-2 (West)

29-3-8-2 Powers which guardian may exercise

Sec. 2. (a) The guardian of a minor may exercise all of the powers required to perform the guardian's responsibilities, including the following:

  1. The power to receive property payable to the minor or the minor's parent, guardian, or custodian from any source, including any statutory benefit, insurance system, or private contract, devise, trust, or custodianship.
  2. The power to take custody of the person of the minor and establish the minor's place of abode within or without Indiana if in accordance with IC 29-3-9-2.
  3. The power to institute proceedings or take other appropriate action to compel the performance by any person of a duty to support the minor or to pay for the minor's education, health, or welfare.
  4. The power to consent to medical or other professional care and treatment for the minor's health and welfare.
  5. The power to consent to the marriage or adoption of the minor.
  6. If reasonable, the power to delegate to the minor certain responsibilities for decisions affecting the minor's business affairs and well-being.
  7. The power to purchase a home for the minor or the minor's dependents, to protect the minor's existing home, or to protect the minor's interest in any real estate in which the minor may have an interest, contractual or otherwise, or to purchase any other interest in real property where the court finds the purchase to be in the minor's best interest.
  8. The powers with respect to the guardianship property as are granted to a guardian under section 4 of this chapter with respect to guardianship property.
  9. The power to bind all or any part of the guardianship property in a transaction for the benefit of the minor unless the third party dealing with the guardian is acting in bad faith.
  10. If the minor has no living parent, other than a parent who is an incapacitated person, the powers granted to the parent of a minor under IC 29-3-3-3(1) through IC 29-3-3-3(8).

(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).

Ind. Code Ann. § 29-3-8-3 (West)

29-3-8-3 Mandatory responsibilities

Sec. 3. A guardian (other than a temporary guardian) shall do the following:

  1. Act as a guardian with respect to the guardianship property and observe the standards of care and conduct applicable to trustees.
  2. Protect and preserve the property of the protected person subject to guardianship and secure the protective orders or other orders that are required to protect any other property of the protected person.
  3. Conserve any property of the protected person in excess of the protected person's current needs.
  4. Encourage self-reliance and independence of the protected person.
  5. Consider recommendations relating to the appropriate standard of support, care, education, and training for the protected person or the protected person's dependent made by the protected person's parent.

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IOWA
Iowa Code Ann. § 633.635 (West)

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:
    1. Providing for the care, comfort and maintenance of the ward, including the appropriate training and education to maximize the ward's potential.
    2. Taking reasonable care of the ward's clothing, furniture, vehicle and other personal effects.
    3. Assisting the ward in developing maximum self-reliance and independence.
    4. Ensuring the ward receives necessary emergency medical services.
    5. 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.
    6. Any other powers or duties the court may specify.
  2. A guardian may be granted the following powers which may only be exercised upon court approval:
    1. 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.
    2. Arranging the provision of major elective surgery or any other nonemergency major medical procedure. For the purposes of this paragraph, “major elective surgery” and “nonemergency major medical procedure” do not include the provision to the ward of professional care, counseling, treatment, or services limited to the provision of routine physical and dental examinations and procedures under anesthesia, if the use of anesthesia is necessitated by the physical or mental disability of the ward, and if the anesthesia is provided within the scope of the health care practitioner's scope of practice.
    3. Consent to the withholding or withdrawal of life-sustaining procedures in accordance with chapter 144A.
  3. For the purposes of this section:
    1. “Routine dental examinations and procedures” includes preventive services, diagnostic services, restorative services, periodontal services, endodontic services, oral surgery, prosthetic services, and orthodontic procedures.
    2. “Routine physical examinations and procedures” includes examinations and procedures performed for the purpose of general treatment or diagnosis or for the purpose of treatment or diagnosis related to a specific illness, symptom, complaint, or injury.
  4. The court may take into account all available information concerning the capabilities of the ward and any additional evaluation deemed necessary, including the availability of third-party assistance to meet the needs of the ward or proposed ward, and may direct that the guardian have only a specially limited responsibility for the ward. In that event, the court shall state those areas of responsibility which shall be supervised by the guardian and all others shall be retained by the ward. The court may make a finding that the ward lacks the capacity to contract a valid marriage.
  5. From time to time, upon a proper showing, the court may modify the respective responsibilities of the guardian and the ward, after notice to the ward and an opportunity to be heard. Any modification that would be more restrictive or burdensome for the ward shall be based on clear and convincing evidence that the ward continues to fall within the categories of section 633.552, subsection 2, paragraph “a” or “b”, and that the facts justify a modification of the guardianship. Section 633.551 applies to the modification proceedings. Any modification that would be less restrictive for the ward shall be based upon proof in accordance with the requirements of section 633.675.

Iowa Code Ann. § 144A.7 (West)

144A.7. Procedure in absence of declaration

  1. Life-sustaining procedures may be withheld or withdrawn from a patient who is in a terminal condition and who is comatose, incompetent, or otherwise physically or mentally incapable of communication and has not made a declaration in accordance with this chapter if there is consultation and written agreement for the withholding or the withdrawal of life-sustaining procedures between the attending physician and any of the following individuals, who shall be guided by the express or implied intentions of the patient, in the following order of priority if no individual in a prior class is reasonably available, willing, and competent to act:
    1. The attorney in fact designated to make treatment decisions for the patient should such person be diagnosed as suffering from a terminal condition, if the designation is in writing and complies with chapter 144B or section 633B.1.
    2. The guardian of the person of the patient if one has been appointed, provided court approval is obtained in accordance with section 633.635, subsection 2, paragraph “c”. This paragraph does not require the appointment of a guardian in order for a treatment decision to be made under this section.
    3. The patient's spouse.
    4. An adult child of the patient or, if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation.
    5. A parent of the patient, or parents if both are reasonably available.
    6. An adult sibling.
  2. When a decision is made pursuant to this section to withhold or withdraw life-sustaining procedures, there shall be a witness present at the time of the consultation when that decision is made.
  3. Subsections 1 and 2 shall not be in effect for a patient who is known to the attending physician to be pregnant with a fetus that could develop to the point of live birth with continued application of life-sustaining procedures. However, the provisions of this subsection do not impair any existing rights or responsibilities that any person may have in regard to the withholding or withdrawal of life-sustaining procedures.

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KANSAS
Kan. Stat. Ann. § 59-3075 (West)

K.S.A. 59-3075
59-3075. Guardian's duties, responsibilities, powers and authorities

(a)

  1. The individual or corporation appointed by the court to serve as the guardian shall carry out diligently and in good faith, the general duties and responsibilities, and shall have the general powers and authorities, provided for in this section as well as any specific duties, responsibilities, powers and authorities assigned to the guardian by the court. In doing so, a guardian shall at all times be subject to the control and direction of the court, and shall act in accordance with the provisions of any guardianship plan filed with the court pursuant to K.S.A. 59-3076, and amendments thereto. The court shall have the authority to appoint counsel for the guardian, and the fees of such attorney may be assessed as costs pursuant to K.S.A. 59-3094, and amendments thereto.
  2. A guardian shall become and remain personally acquainted with the ward, the spouse of the ward and with other interested persons associated with the ward and who are knowledgeable about the ward, the ward's needs and the ward's responsibilities. A guardian shall exercise authority only as necessitated by the ward's limitations. A guardian shall encourage the ward to participate in making decisions affecting the ward. A guardian shall encourage the ward to act on the ward's own behalf to the extent the ward is able. A guardian shall encourage the ward to develop or regain the skills and abilities necessary to meet the ward's own essential needs and to otherwise manage the ward's own affairs. In making decisions on behalf of the ward, a guardian shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian shall strive to assure that the personal, civil and human rights of the ward are protected. A guardian shall at all times act in the best interests of the ward and shall exercise reasonable care, diligence and prudence.

(b) A guardian shall have the following general duties, responsibilities, powers and authorities:

  1. If the ward is a minor, to have the custody and control of the minor, and to provide for the minor's care, treatment, habilitation, education, support and maintenance;
  2. if the ward is an adult, to take charge of the person of the ward, and to provide for the ward's care, treatment, habilitation, education, support and maintenance;
  3. to consider and either provide on behalf of the ward necessary or required consents or refuse the same;
  4. to assure that the ward resides in the least restrictive setting appropriate to the needs of the ward and which is reasonably available;
  5. to assure that the ward receives any necessary and reasonably available medical care, consistent with the provisions of K.S.A. 59-3077, 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;
  6. to promote and protect the comfort, safety, health and welfare of the ward;
  7. to make necessary determinations and arrangements for, and to give the necessary consents in regard to, the ward's funeral arrangements, burial or cremation, the performance of an autopsy upon the body of the ward, and anatomical gifts of the ward, subject to the provisions and limitations provided for in K.S.A. 65-3228, 65-2893 and 65-1734, and amendments thereto; and
  8. to exercise all powers and to discharge all duties necessary or proper to implement the provisions of this section.

(c) A guardian shall not be obligated by virtue of the guardian's appointment to use the guardian's own financial resources for the support of the ward.

(d) A guardian shall not be liable to a third person for the acts of the ward solely by virtue of the guardian's appointment, nor shall a guardian who exercises reasonable care in selecting a third person to provide any medical or other care, treatment or service for the ward be liable for any injury to the ward resulting from the wrongful conduct of that third person.

(e) A guardian shall not have the power:

  1. To prohibit the marriage or divorce of the ward;
  2. to consent, on behalf of the ward, to the termination of the ward's parental rights
  3. to consent to the adoption of the ward, unless approved by the court;
  4. to consent, on behalf of the ward, to any psychosurgery, removal of any bodily organ, or amputation of any limb, unless such surgery, removal or amputation 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. to consent, on behalf of the ward, to 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. to consent, on behalf of the ward, to the performance of any experimental biomedical or behavioral procedure on the ward, or for the ward to be a participant in any biomedical or behavioral experiment, without the prior review and approval of such by either an institutional review board as provided for in title 45, part 46 of the code of federal regulations, or if such regulations do not apply, then by a review committee established by the agency, institution or treatment facility at which the procedure or experiment is proposed to occur, composed of members selected for the purposes of determining whether the proposed procedure or experiment:
    1. 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
    2. 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. to consent, on behalf of the ward, to the withholding or withdrawal of life-saving or life sustaining medical care, treatment, services or procedures, except:
    1. In accordance with the provisions of any declaration of the ward made pursuant to the provisions of K.S.A. 65-28,101 through 65-28,109, and amendments thereto; or
    2. if the ward, prior to the court's appointment of a guardian pursuant to K.S.A. 59-3067, and amendments thereto, shall have executed a durable power of attorney for health care decisions pursuant to K.S.A. 58-629, and amendments thereto, and such shall not have been revoked by the ward prior thereto, and there is included therein any provision relevant to the withholding or withdrawal of life-saving or life-sustaining medical care, treatment, services or procedures, then the guardian shall have the authority to act as provided for therein, even if the guardian has revoked or otherwise amended that power of attorney pursuant to the authority of K.S.A. 58-627, and amendments thereto, 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
    3. 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 of the ward other than by artificial means, nor would be likely to restore to the ward any significant degree of capabilities beyond those the ward currently possesses, and which opinion is concurred in by either a second physician or by any medical ethics or similar committee to which the health care provider has access established for the purposes of reviewing such circumstances and the appropriateness of any type of physician's order which would have the effect of withholding or withdrawing life-saving or life sustaining medical care, treatment, services or procedures. Such written certification shall be approved by an order issued by the court;
  8. to exercise any control or authority over the ward's estate, except if the court shall specifically authorize such. The court may assign such authority to the guardian, including the authority to establish certain trusts as provided in K.S.A. 59-3080, and amendments thereto, and may waive the requirement of the posting of a bond, only if:
    1. Initially, the combined value of any funds and property in the possession of the ward or in the possession of any other person or entity, but which the ward is otherwise entitled to possess, equals $10,000 or less; and
    2. either the court requires the guardian to report to the court the commencement of the exercising of such authority, or requires the guardian to specifically request of the court the authority to commence the exercise of such authority, as the court shall specify; and
    3. the court also requires the guardian, whenever the combined value of such funds and property exceeds $10,000, to:
      1. File a guardianship plan as provided for in K.S.A. 59-3076, and amendments thereto, which contains elements similar to those which would be contained in a conservatorship plan as provided for in K.S.A. 59-3078, and amendments thereto;
      2. petition the court for appointment of a conservator as provided for in K.S.A. 59-3058, 59-3059 or 59-3060, and amendments thereto; or
      3. notify the court as the court shall specify that the value of the conservatee's estate has equaled or exceeded $10,000, if the court has earlier appointed a conservator but did not issue letters of conservatorship pending such notification; and
  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.

(f) The guardian shall file with the court reports concerning the status of the ward and the actions of the guardian as the court shall direct pursuant to K.S.A. 59-3083, and amendments thereto.

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KENTUCKY

Ky. Rev. Stat. Ann. § 387.065 (West)

387.065 Powers, duties, and responsibilities of guardian

  1. A guardian of a ward shall have the powers and responsibilities of a parent regarding the ward's support, care, and education, but a guardian shall not be personally liable for the ward's expenses and shall not be liable to third persons by reason of the relationship for acts of the ward.
  2. In particular and without qualifying the foregoing, a guardian shall:
    1. Take custody of the person of the ward and establish the ward's place of abode within the Commonwealth; and
    2. Take reasonable care of the ward's personal effects.
  3. A guardian may:
    1. Receive money payable for the support of the ward to the ward's parent, guardian, or custodian under the terms of any statutory benefit or insurance system or any private contract, devise, trust, or custodianship;
    2. Consent to 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;
    3. Consent to the ward's marriage, adoption, or enlistment in military service;
    4. Extend funds of the ward's estate for the support of persons legally dependent on the ward.
  4. A guardian shall expend or distribute income or principal of the ward's estate without District Court authorization or confirmation for the support, care, and education of the ward. The District Court may limit or restrict the guardian's exercise of this power.
  5. In performing the guardian's duties relating to support, care, and education of the ward, a guardian shall consider:
    1. Recommendations relating to the appropriate standard of support, care, and education for the ward made by a parent or limited guardian, if any:
    2. The size of the estate under the guardian's supervision or control;
    3. The ward's age, capacities, limitations, needs, opportunities, and physical and mental health;
    4. The likelihood that the ward will be able to labor and earn money when the ward becomes an adult;
    5. The accustomed standard of living of the ward; and
    6. Other funds or sources used for the support of the ward which have not been placed under the control or supervision of the guardian.
  6. A guardian shall not provide for the support, care, or education of a ward which a parent of the ward is legally obligated and financially able to provide.
  7. Funds expended under this section may be paid by a guardian to any person, including the ward, to reimburse for expenditures that the guardian might have made, or in advance for services to be rendered to the ward if it is reasonable to expect the services will be performed and advance payments are customary or reasonably necessary under the circumstances.
  8. When a ward attains age eighteen (18), the guardian, after meeting all claims and expenses of administration, shall pay over and distribute all funds and properties to the ward as soon as possible, unless:
    1. The ward has been determined to be disabled or partially disabled under KRS 387.500 to 387.770, in which event the ward's funds and properties shall be paid over and distributed to the guardian, limited guardian, conservator, or limited conservator appointed pursuant to KRS 387.500 to 387.770; or
    2. The guardian has reason to believe that the ward is disabled or partially disabled as defined in KRS 387.510, in which event, the guardian shall institute a proceeding for appointment of a guardian, limited guardian, conservator or limited conservator pursuant to KRS 387.500 to 387.770.

Ky. Rev. Stat. Ann. § 311.631 (West)

311.631 Responsible parties authorized to make health care decisions

  1. If an adult patient whose physician has determined that he or she does not have decisional capacity has not executed an advance directive, or to the extent the advance directive does not address a decision that must be made, any one (1) of the following responsible parties, in the following order of priority if no individual in a prior class is reasonably available, willing, and competent to act, shall be authorized to make health care decisions on behalf of the patient:
    1. The judicially-appointed guardian of the patient, if the guardian has been appointed and if medical decisions are within the scope of the guardianship;
    2. The attorney-in-fact named in a durable power of attorney, if the durable power of attorney specifically includes authority for health care decisions;
    3. The spouse of the patient;
    4. An adult child of the patient, or if the patient has more than one (1) child, the majority of the adult children who are reasonably available for consultation;
    5. The parents of the patient;
    6. The nearest living relative of the patient, or if more than one (1) relative of the same relation is reasonably available for consultation, a majority of the nearest living relatives.
  2. In any case in which a health care decision is made under this section, the decision shall be noted in writing in the patient's medical records.
  3. An individual authorized to consent for another under this section shall act in good faith, in accordance with any advance directive executed by the individual who lacks decisional capacity, and in the best interest of the individual who does not have decisional capacity.
  4. In any case in which a health care decision is made under this section, hospitalization for psychiatric treatment at a general hospital shall not exceed fourteen (14) consecutive days unless a court order is obtained under KRS Chapter 202A or 202B. For the purposes of this section, a general hospital is one that is not owned or operated by the Commonwealth of Kentucky.
  5. An individual authorized to make a health care decision under this section may authorize the withdrawal or withholding of artificially-provided nutrition and hydration only in the circumstances as set forth in KRS 311.629(3).

Ky. Rev. Stat. Ann. § 311.629 (West)
311.629 Powers of health care surrogate

  1. A surrogate designated pursuant to an advance directive may make health care decisions for the grantor which the grantor could make individually if he or she had decisional capacity, provided all the decisions shall be made in accordance with the desires of the grantor as indicated in the advance directive. When making any health care decision for the grantor, the surrogate shall consider the recommendation of the attending physician and honor the decision made by the grantor as expressed in the advance directive.
  2. The surrogate may not make a health care decision in any situation in which the grantor's attending physician has determined in good faith that the grantor has decisional capacity. The attending physician shall proceed as if there were no designation if the surrogate is unavailable or refuses to make a health care decision.
  3. A health care surrogate may authorize the withdrawal or withholding of artificially-provided nutrition and hydration in the following circumstances:
    1. When inevitable death is imminent, which for the purposes of this provision shall mean when death is expected, by reasonable medical judgment, within a few days; or
    2. When a patient is in a permanently unconscious state if the grantor has executed an advance directive authorizing the withholding or withdrawal of artificially-provided nutrition and hydration; or
    3. When the provision of artificial nutrition cannot be physically assimilated by the person; or
    4. When the burden of the provision of artificial nutrition and hydration itself shall outweigh its benefit. Even in the exceptions listed in paragraphs (a), (b), and (c) of this subsection, artificially-provided nutrition and hydration shall not be withheld or withdrawn if it is needed for comfort or the relief of pain.
  4. Notwithstanding the execution of an advance directive, life sustaining treatment and artificially-provided nutrition and hydration shall be provided to a pregnant woman unless, to a reasonable degree of medical certainty, as certified on the woman's medical chart by the attending physician and one (1) other physician who has examined the woman, the procedures will not maintain the woman in a way to permit the continuing development and live birth of the unborn child, will be physically harmful to the woman or prolong severe pain which cannot be alleviated by medication.

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LOUISIANA
La. Civ. Code Ann. art. 389

Art. 389. Full interdiction

A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.

La. Civ. Code Ann. art. 392
Art. 392. Curators

The court shall appoint a curator to represent the interdict in juridical acts and to care for the person or affairs of the interdict, or any aspect of either. The duties and powers of a curator commence upon his qualification. In discharging his duties, a curator shall exercise reasonable care, diligence, and prudence and shall act in the best interest of the interdict.
The court shall confer upon a curator of a limited interdict only those powers required to protect the interests of the interdict.

La. Rev. Stat. Ann. § 40:1299.58.3

§ 1299.58.3. Making of declaration; notification; illustrative form; registry; issuance of do-not-resuscitate identification bracelets

A.

  1. Any adult person may, at any time, make a written declaration directing the withholding or withdrawal of life-sustaining procedures in the event such person should have a terminal and irreversible condition.
  2. A written declaration shall be signed by the declarant in the presence of two witnesses.
  3. An oral or nonverbal declaration may be made by an adult in the presence of two witnesses by any nonwritten means of communication at any time subsequent to the diagnosis of a terminal and irreversible condition.

B.

  1. It shall be the responsibility of the declarant to notify his attending physician that a declaration has been made.
  2. In the event the declarant is comatose, incompetent, or otherwise mentally or physically incapable of communication, any other person may notify the physician of the existence of the declaration. In addition, the attending physician or health care facility may directly contact the registry to determine the existence of any such declaration.
  3. Any attending physician who is so notified, or who determines directly or is advised by the health care facility that a declaration is registered, shall promptly make the declaration or a copy of the declaration, if written, or a notation of the existence of a registered declaration, a part of the declarant's medical record.
  4. If the declaration is oral or nonverbal, the physician shall promptly make a recitation of the reasons the declarant could not make a written declaration and make the recitation a part of the patient's medical records.

La. Rev. Stat. Ann. § 40:1299.58.5

§ 1299.58.5. Procedure for making a declaration for a qualified patient who has not previously made a declaration

A.

  1. Nothing in this Part shall be construed in any manner to prevent the withholding or the withdrawal of life-sustaining procedures from a qualified patient with a terminal and irreversible condition who is comatose, incompetent, or otherwise physically or mentally incapable of communication and has not made a prior declaration in accordance with this Part.
  2. When a comatose or incompetent person or a person who is physically or mentally incapable of communication has been certified as a qualified patient and has not previously made a declaration, any of the following individuals in the following order of priority, if there is no individual in a prior class who is reasonably available, willing, and competent to act, may make a declaration on the qualified patient's behalf:
    1. The judicially appointed tutor or curator of the patient if one has been appointed. This Subparagraph shall not be construed to require such appointment in order that a declaration can be made under this Section.
    2. Any person or persons previously designated by an adult patient by written instrument signed by the patient in the presence of at least two witnesses, to have the authority to make a declaration for the patient in the event of the patient's inability to do so. If the instrument so authorizes more than one person, it may include the order in which the persons designated shall have authority to make the declaration.
    3. The patient's spouse not judicially separated.
    4. An adult child of the patient.
    5. The parents of the patient.
    6. The patient's sibling.
    7. The patient's other ascendants or descendants.
  3. If there is more than one person within the above named class in Subparagraphs (2)(d) through (2)(g) of this Subsection, then the declaration shall be made by a majority of that class available for consultation upon good faith efforts to secure participation of all of that class.

B. In any case where the declaration is made by a person specified in Subparagraphs (A)(2)(b), (c), (d), (e), or (f), there shall be at least two witnesses present at the time the declaration is made.

C. The absence of a declaration by an adult patient shall not give rise to any presumption as to the intent to consent to or to refuse life-sustaining procedures.

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MAINE
Me. Rev. Stat. tit. 18-A, § 5-312

§ 5-312. General powers and duties of guardian

(a) A guardian of an incapacitated person has the same powers, rights and duties respecting his ward that a parent has respecting his unemancipated minor child, except that a guardian is not legally obligated to provide from his own funds for the ward and is not liable to 3rd persons for acts of the ward solely by reason of the parental relationship. 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 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.
  2. If entitled to custody of his ward he shall make provision for the care, comfort and maintenance of his ward and, whenever appropriate, arrange for his training and education. Without regard to custodial rights of the ward's person, he shall take reasonable care of his ward's clothing, furniture, vehicles and other personal effects and commence protective proceedings if other property of his ward is in need of protection.
  3. A guardian may give or withhold consents or approvals related to medical or other professional care, counsel, treatment or service for the ward. Except as authorized by a court of competent jurisdiction, a guardian shall make a health-care decision in accordance with the ward's individual instructions, if any, and other wishes expressed while the ward had capacity to the extent known to the guardian. Otherwise, the guardian shall make the decision in accordance with the guardian's determination of the ward's best interest. In determining the ward's best interest, the guardian shall consider the ward's personal values to the extent known to the guardian. 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.
  4. If no conservator for the estate of the ward has been appointed, he may:
    1. Institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform his duty;
    2. Receive money and tangible property deliverable to the ward and apply the money and property for support, care and education of the ward; but, he may not use funds from his ward's estate for room and board which he, his spouse, parent, or child have furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs.
  5. A guardian is required to report the condition of his ward and of the estate which has been subject to his possession or control, as specified by the court at the time of the initial order or at the time of a subsequent order or as provided by court rule.

The court on its own motion, or on the petition of any interested person, may appoint a visitor to review the guardian's report and determine if appropriate provisions for the care, comfort and maintenance of his ward and for the care and protection of his ward's property have been made. The visitor shall report his findings to the court in writing.

  1. If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this code, and the guardian must account to the conservator for funds expended.

(b) Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward, and is entitled to receive reasonable sums for his services and for room and board furnished to the ward as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to 3rd persons or institutions for the ward's care and maintenance.

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MARYLAND

Md. Code Ann., Est. & Trusts § 13-708 (West)
§ 13-708. Functions of guardian

(a)

  1. The court may grant to a guardian of a person only those powers necessary to provide for the demonstrated need of the disabled person.
  2. The court may appoint a guardian of the person of a disabled person for the limited purpose of making one or more decisions related to the health care of that person.

(b) Subject to subsection (a) of this section, the rights, duties, and powers which the court may order include, but are not limited to:

  1. The same rights, powers, and duties that a parent has with respect to an unemancipated minor child, except that the guardian is not liable solely by reason of the guardianship to third persons for any act of the disabled person;
  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;
  3. The duty to provide for care, comfort, and maintenance, including social, recreational, and friendship requirements, and, if appropriate, for training and education of the disabled person;
  4. The duty to take reasonable care of the clothing, furniture, vehicles, and other personal effects of the disabled person, and, if other property requires protection, the power to commence protective proceedings;
  5. If a guardian of the estate of the disabled person has not been appointed, the right to commence proceedings to compel performance by any person of his duty to support the disabled person, and to apply the estate to the support, care, and education of the disabled person, except that the guardian of the person may not obtain funds from the estate for room and board that the guardian, his spouse, parent, or child provide without a court order approving the charge, and the duty to exercise care to conserve any excess estate for the needs of the disabled person;
  6. If a guardian of the estate has been appointed, the duty to control the custody and care of the disabled person, to receive reasonable sums for room and board provided to the disabled person, and to account to the guardian of the estate for funds expended, and the right to ask the guardian of the estate to expend the estate in payment of third persons for care and maintenance of the disabled person;
  7. The duty to file an annual report with the court indicating the present place of residence and health status of the ward, the guardian's plan for preserving and maintaining the future well-being of the ward, and the need for continuance or cessation of the guardianship or for any alteration in the powers of the guardian. The court shall renew the appointment of the guardian if it is satisfied that the grounds for the original appointment stated in § 13-705(b) of this subtitle continue to exist. If the court believes such grounds may not exist, it shall hold a hearing, similar to that provided for in § 13-705 of this subtitle, at which the guardian shall be required to prove that such grounds exist. If the court does not make these findings, it shall order the discontinuance of the guardianship of the person. If the guardian declines to participate in the hearing, the court may appoint another guardian to replace him pursuant to the priorities in § 13-707(a) of this subtitle; and
  8. The power to give necessary consent or approval for:
    1. 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;
    2. Withholding medical or other professional care, counsel, treatment, or service; and
    3. Withdrawing medical or other professional care, counsel, treatment, or service.

(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:
    1. The medical procedure;
    2. Withholding the medical procedure; or
    3. 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:
    1. 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
    2. The guardian is:
      1. Within a class of individuals specified in § 5-605(a)(2) of the Health--General Article as authorized to make health care decisions for the disabled person; and
      2. Determined by the court to be familiar with the personal beliefs, values, and medical situation of the disabled person.
  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.

(d)

  1. Notwithstanding subsection (a) of this section, and in addition to the rights, duties, and powers which the court may order under subsection (b) of this section, the court may order the relief provided under this subsection
  2. (i) If a guardian of the estate has been appointed, a guardian of the person may ask the guardian of the estate to expend the estate in payment of care and maintenance services provided directly to the disabled person by the guardian of the person at the rate of reimbursement established under this subsection.

    (ii) The guardian of the person shall maintain appropriate records to document the care and maintenance services provided directly to the disabled person to receive any payment under this subsection.
  3. To implement the provisions of this subsection, the court may:
    1. Adopt guidelines for the rate of reimbursement for care and maintenance services provided directly by the guardian of the person to a disabled person;
    2. Establish appropriate procedures for records, inspections, audits, or other requirements to monitor care and maintenance services provided directly by the guardian of the person for which the guardian of the person is reimbursed; and
    3. Order any act necessary for the best interests of the disabled person.

Md. Code Ann., Health-Gen. § 5-605 (West)

§ 5-605. Authorization of surrogate

Unavailable defined

(a)

  1. In this subsection, “unavailable” means:
    1. After reasonable inquiry, a health care provider is unaware of the existence of a health care agent or surrogate decision maker;
    2. After reasonable inquiry, a health care provider cannot ascertain the whereabouts of a health care agent or surrogate decision maker;
    3. A health care agent or surrogate decision maker has not responded in a timely manner, taking into account the health care needs of the individual, to a written or oral message from a health care provider;
    4. A health care agent or surrogate decision maker is incapacitated; or
    5. A health care agent or surrogate decision maker is unwilling to make decisions concerning health care for the individual.
  2. The following individuals or groups, in the specified order of priority, may make decisions about health care for a person who has been certified to be incapable of making an informed decision and who has not appointed a health care agent in accordance with this subtitle or whose health care agent is unavailable. Individuals in a particular class may be consulted to make a decision only if all individuals in the next higher class are unavailable:
    1. A guardian for the patient, if one has been appointed;
    2. The patient's spouse or domestic partner;
    3. An adult child of the patient;
    4. A parent of the patient;
    5. An adult brother or sister of the patient; or
    6. A friend or other relative of the patient who meets the requirements of paragraph (3) of this subsection.
  3. A friend or other relative may make decisions about health care for a patient under paragraph (2) of this subsection if the person:
    1. Is a competent individual; and
    2. Presents an affidavit to the attending physician stating:
      1. That the person is a relative or close friend of the patient; and
      2. Specific facts and circumstances demonstrating that the person has maintained regular contact with the patient sufficient to be familiar with the patient's activities, health, and personal beliefs.
        (4) The attending physician shall include the affidavit presented under paragraph (3) of this subsection in the patient's medical record.

Disagreement of health care decisions

(b)

  1. If persons with equal decision making priority under subsection (a) of this section disagree about a health care decision, and a person who is incapable of making an informed decision is receiving care in a hospital or related institution, the attending physician or an individual specified in subsection (a) of this section shall refer the case to the institution's patient care advisory committee, and may act in accordance with the recommendation of the committee or transfer the patient in accordance with the provisions of § 5-613 of this subtitle. A physician who acts in accordance with the recommendation of the committee is not subject to liability for any claim based on lack of consent or authorization for the action.
  2. If a person who is incapable of making an informed decision is not in a hospital or related institution, a physician may not withhold or withdraw life-sustaining procedures if there is not agreement among all the persons in the same class.

Wishes of patient

(c)

  1. Any person authorized to make health care decisions for another under this section shall base those decisions on the wishes of the patient and, if the wishes of the patient are unknown or unclear, on the patient's best interest.
  2. In determining the wishes of the patient, a surrogate shall consider the patient's:
    1. Current diagnosis and prognosis with and without the treatment at issue;
    2. Expressed preferences regarding the provision of, or the withholding or withdrawal of, the specific treatment at issue or of similar treatments;
    3. Relevant religious and moral beliefs and personal values;
    4. Behavior, attitudes, and past conduct with respect to the treatment at issue and medical treatment generally;
    5. Reactions to the provision of, or the withholding or withdrawal of, a similar treatment for another individual; and
    6. Expressed concerns about the effect on the family or intimate friends of the patient if a treatment were provided, withheld, or withdrawn.
  3. The decision of a surrogate regarding whether life-sustaining procedures should be provided, withheld, or withdrawn shall not be based, in whole or in part, on either a patient's preexisting, long-term mental or physical disability, or a patient's economic disadvantage.
  4. A surrogate shall inform the patient, to the extent possible, of the proposed procedure and the fact that someone else is authorized to make a decision regarding that procedure.

Unauthorized health care decisions

(d) A surrogate may not authorize:

  1. Sterilization; or
  2. Treatment for a mental disorder.

Md. Code Ann., Est. & Trusts § 13-711 (West)
§ 13-711. Definitions

(a) In this Part III of this subtitle the following words have the meanings indicated.

(b) “Best interest” means that the benefits to the disabled person resulting from a treatment outweigh the burdens to the disabled person resulting from that treatment, taking into account:

  1. The effect of the treatment on the physical, emotional, and cognitive functions of the disabled person;
  2. The degree of physical pain or discomfort caused to the disabled person by the treatment, or the withholding or withdrawal of the treatment;
  3. The degree to which the disabled person's medical condition, the treatment, or the withholding or withdrawal of treatment, result in a severe and continuing impairment of the dignity of the disabled person by subjecting the individual to a condition of extreme humiliation and dependency;
  4. The effect of the treatment on the life expectancy of the disabled person;
  5. The prognosis of the disabled person for recovery, with and without the treatment;
  6. The risks, side effects, and benefits of the treatment or the withholding or withdrawal of the treatment; and
  7. The religious beliefs and basic values of the disabled person receiving treatment, to the extent these may assist the decision maker in determining best interest.

(c) “Life-sustaining procedure” means any medical procedure, treatment, or intervention used to sustain, restore, supplement, or supplant a spontaneous vital function in order to prevent or postpone the death of a disabled person.

(d) “Substituted judgment” means a determination by a court that a disabled person would, if competent, make the same health care decision regarding a life-sustaining procedure taking into account any information that may be relevant to the decision, including:

  1. The current diagnosis, prognosis with and without the life-sustaining procedure, and life expectancy of the disabled person;
  2. Any expressed preferences of the disabled person regarding the provision of, or the withholding or withdrawal of, the life-sustaining procedure at issue;
  3. Any expressed preferences of the disabled person about the provision of, or the withholding or withdrawal of, life-sustaining procedures generally;
  4. Any religious or moral beliefs or personal values of the disabled person in relation to the provision of, or the withholding or withdrawal of, life-sustaining procedures;
  5. Any behavioral or other manifestations of the attitude of the disabled person toward the provision of, or the withholding or withdrawal of, the life-sustaining procedure;
  6. Any consistent pattern of conduct by the disabled person regarding prior decisions about health care;
  7. Any reactions of the disabled person to the provision of, or the withholding or withdrawal of, a comparable life-sustaining procedure for another individual; and
  8. Any expressed concerns of the disabled person about the effect on the family or intimate friends of the disabled person if a life-sustaining procedure were provided, withheld, or withdrawn.

Md. Code Ann., Est. & Trusts § 13-712 (West)
§ 13-712. Standard for substituting judgment

(a) The court may approve a request for the withholding or withdrawal of a life-sustaining procedure from a disabled person on the basis of a substituted judgment.

(b) The court may make a substituted judgment under subsection (a) of this section only on the basis of clear and convincing evidence that the disabled person would, if competent, decide to withhold or withdraw a life-sustaining procedure under the circumstances.

(c) Evidence of the intentions or wishes of the disabled person regarding the withholding or withdrawal of a life-sustaining procedure that might otherwise be inadmissible may be admitted, in the discretion of the court, if it is:

  1. Material and probative; and
  2. The best evidence available.

Md. Code Ann., Est. & Trusts § 13-713 (West)

§ 13-713. Best interests of person

(a) If the court is unable to make a substituted judgment under § 13-712 of this subtitle, the court may approve a request for the withholding or withdrawal of a life-sustaining procedure from the disabled person if the court determines, on the basis of clear and convincing evidence, that the withholding or withdrawal is in the best interest of the disabled person.

(b) The decision of whether life-sustaining procedures should be provided, withheld, or withdrawn shall not be based, in whole or in part, on either a patient's preexisting, long-term mental or physical disability, or a patient's economic disadvantage.

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MASSACHUSETTS

Mass. Gen. Laws Ann. ch. 190B, § 5-309 (West)

§ 5-309. Powers, duties, rights and immunities of guardians, limitations

[Powers, Duties, Rights and Immunities of Guardians, Limitations.]

(a) Except as limited pursuant to section 5-306(c), a guardian of an incapacitated person shall make decisions regarding the incapacitated person's support, care, education, health and welfare, but a guardian is not personally liable for the incapacitated person's expenses and is not liable to third persons by reason of that relationship for acts of the incapacitated person. A guardian shall exercise authority only as necessitated by the incapacitated person's mental and adaptive limitations, and, to the extent possible, shall encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian, to the extent known, shall consider the expressed desires and personal values of the incapacitated person when making decisions, and shall otherwise act in the incapacitated person's best interest and exercise reasonable care, diligence, and prudence. A guardian shall immediately notify the court if the incapacitated person's condition has changed so that he or she is capable of exercising rights previously limited. 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).

(b) A guardian shall report in writing the condition of the incapacitated person and account for funds and other assets subject to the guardian's possession or control within 60 days following appointment, at least annually thereafter, and when otherwise ordered by the court. A report shall briefly state:

  1. the current mental, physical and social condition of the incapacitated person;
  2. the living arrangements for all addresses of the incapacitated person during the reporting period;
  3. the medical, educational, vocational and other services provided to the incapacitated person and the guardian's opinion as to the adequacy of the incapacitated person's care;
  4. a summary of the guardian's visits with and activities on the incapacitated person's behalf and the extent to which the incapacitated person participated in decision-making;
  5. if the incapacitated person is institutionalized, whether the guardian considers the current treatment or habilitation plan to be in the incapacitated person's best interests;
  6. plans regarding future care; and
  7. a recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship.

<[ Subsection (c) effective until July 8, 2012. For text effective July 8, 2012, see below.]>

(c) The court shall establish a system for monitoring guardianships, including the filing and review of annual reports.

<[ Subsection (c) as amended by 2012, 140, Sec. 41 effective July 8, 2012 applicable as provided by 2012, 140, Sec. 66. For text effective until July 8, 2012, see above.]>

(c) The court shall establish a system for monitoring guardianships of incapacitated persons, including the filing and review of annual reports.

(d) The court may appoint a guardian ad litem pursuant to section 1-404 to review a report, to interview the incapacitated person or guardian, and to make such other investigation as the court may direct.

(e) A guardian, without authorization of the court, may not revoke a health care proxy of which the incapacitated person is the principal. If a health care proxy is in effect, absent an order of the court to the contrary, a health-care decision of the agent takes precedence over that of a guardian.

(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 as defined in the regulations of the department of mental health.

<[ Subsection (g) effective until July 8, 2012. For text effective July 8, 2012, see below.]>

(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.
<[ Subsection (g) as amended by 2012, 140, Sec. 42 effective July 8, 2012 applicable as provided by 2012, 140, Sec. 66. For text effective until July 8, 2012, see above.]>

(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: (1) the admission shall not exceed 60 days; (2) any person authorized to sign a medical certificate recommends such admission; (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. The notice of intent to admit the incapacitated person to a nursing facility for short-term services shall be on a form prescribed by the chief justice of the probate and family court.

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MICHIGAN

Mich. Comp. Laws Ann. § 700.5314 (West)
700.5314. Powers and duties of guardian

Sec. 5314. Whenever meaningful communication is possible, a legally incapacitated individual's guardian shall consult with the legally incapacitated individual before making a major decision affecting the legally incapacitated individual. To the extent a guardian of a legally incapacitated individual is granted powers by the court under section 5306,1 the guardian is responsible for the ward's care, custody, and control, but is not liable to third persons by reason of that responsibility for the ward's acts. In particular and without qualifying the previous sentences, a guardian has all of the following powers and duties, to the extent granted by court order:

(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.

(b) If entitled to custody of the ward, the duty to make provision for the ward's care, comfort, and maintenance and, when appropriate, arrange for the ward's training and education. The guardian shall secure services to restore the ward to the best possible state of mental and physical well-being so that the ward can return to self-management at the earliest possible time. Without regard to custodial rights of the ward's person, the guardian shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and commence a protective proceeding if the ward's other property needs protection. If a guardian commences a protective proceeding because the guardian believes that it is in the ward's best interest to sell or otherwise dispose of the ward's real property or interest in real property, the court may appoint the guardian as special conservator and authorize the special conservator to proceed under section 5423(3).2 A guardian shall not otherwise sell the ward's real property or interest in real property.

(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.

(d) If a conservator for the ward's estate is not appointed, the power to do any of the following:

  1. Institute a proceeding to compel a person under a duty to support the ward or to pay money for the ward's welfare to perform that duty.
  2. Receive money and tangible property deliverable to the ward and apply the money and property for the ward's support, care, and education. The guardian shall not use money from the ward's estate for room and board that the guardian or the guardian's spouse, parent, or child have furnished the ward unless a charge for the service is approved by court order made upon notice to at least 1 of the ward's next of kin, if notice is possible. The guardian shall exercise care to conserve any excess for the ward's needs.

(e) The guardian shall report the condition of the ward and the ward's estate that is subject to the guardian's possession or control, as required by the court, but not less often than annually. The guardian shall also serve the report required under this subdivision on the ward and interested persons as specified in the Michigan court rules. A report under this subdivision shall contain all of the following:

  1. The ward's current mental, physical, and social condition.
  2. Improvement or deterioration in the ward's mental, physical, and social condition that occurred during the past year.
  3. The ward's present living arrangement and changes in his or her living arrangement that occurred during the past year.
  4. Whether the guardian recommends a more suitable living arrangement for the ward.
  5. Medical treatment received by the ward.
  6. Services received by the ward.
  7. A list of the guardian's visits with, and activities on behalf of, the ward.
  8. A recommendation as to the need for continued guardianship.
  9. If a conservator is appointed, the duty to pay to the conservator, for management as provided in this act, the amount of the ward's estate received by the guardian in excess of the amount the guardian expends for the ward's current support, care, and education. The guardian shall account to the conservator for the amount expended.

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MINNESOTA

Minn. Stat. Ann. § 524.5-313 (West)

524.5-313. Powers and duties of guardian

(a) A guardian shall be subject to the control and direction of the court at all times and in all things.

(b) The court shall grant to a guardian only those powers necessary to provide for the demonstrated needs of the ward.

(c) The court may appoint a guardian if it determines that all the powers and duties listed in this section are needed to provide for the needs of the incapacitated person. The court may also appoint a guardian if it determines that a guardian is needed to provide for the needs of the incapacitated person through the exercise of some, but not all, of the powers and duties listed in this section. The duties and powers of a guardian or those which the court may grant to a guardian include, but are not limited to:

  1. the power to have custody of the ward and the power to establish a place of abode within or outside the state, except as otherwise provided in this clause. The ward or any interested person may petition the court to prevent or to initiate a change in abode. A ward may not be admitted to a regional treatment center by the guardian except:
    1. after a hearing under chapter 253B;
    2. for outpatient services; or
    3. for the purpose of receiving temporary care for a specific period of time not to exceed 90 days in any calendar year;
  2. the duty to provide for the ward's care, comfort, and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements, and, whenever appropriate, training, education, and habilitation or rehabilitation. The guardian has no duty to pay for these requirements out of personal funds. Whenever possible and appropriate, the guardian should meet these requirements through governmental benefits or services to which the ward is entitled, rather than from the ward's estate. Failure to satisfy the needs and requirements of this clause shall be grounds for removal of a private guardian, but the guardian shall have no personal or monetary liability;
  3. the duty to take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects, and, if other property requires protection, the power to seek appointment of a conservator of the estate. The guardian must give notice by mail to interested persons prior to the disposition of the ward's clothing, furniture, vehicles, or other personal effects. The notice must inform the person of the right to object to the disposition of the property within ten days of the date of mailing and to petition the court for a review of the guardian's proposed actions. Notice of the objection must be served by mail or personal service on the guardian and the ward unless the ward is the objector. The guardian served with notice of an objection to the disposition of the property may not dispose of the property unless the court approves the disposition after a hearing;
  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, except that no 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;

    (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. The court shall fix the time and place for the hearing and shall give notice to the ward in such manner as specified in section 524.5-308 and to interested persons. The court shall appoint an attorney to represent the ward who is not represented by counsel, provided that such appointment shall expire upon the expiration of the appeal time for the order issued by the court under this section or the order dismissing a petition, or upon such other time or event as the court may direct. In every case the court shall determine if the procedure is in the best interest of the ward. In making its determination, the court shall consider a written medical report which specifically considers the medical risks of the procedure, whether alternative, less restrictive methods of treatment could be used to protect the best interest of the ward, and any recommendation of the commissioner of human services for a public ward. The standard of proof is that of clear and convincing evidence;

    (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. The reports shall indicate why sterilization is being proposed, whether sterilization is necessary and is the least intrusive method for alleviating the problem presented, and whether it is in the best interest of the ward. The medical report shall specifically consider the medical risks of sterilization, the consequences of not performing the sterilization, and whether alternative methods of contraception could be used to protect the best interest of the ward;

    (iv) any ward whose right to consent to a sterilization has not been restricted under this section or section 252A.101 may be sterilized only if the ward consents in writing or there is a sworn acknowledgment by an interested person of a nonwritten consent by the ward. The consent must certify that the ward has received a full explanation from a physician or registered nurse of the nature and irreversible consequences of the sterilization;

    (v) a guardian or the public guardian's designee who acts within the scope of authority conferred by letters of guardianship under section 252A.101, subdivision 7, and according to the standards established in this chapter or in chapter 252A shall not be civilly or criminally liable for the provision of any necessary medical care, including, but not limited to, the administration of psychotropic medication or the implementation of aversive and deprivation procedures to which the guardian or the public guardian's designee has consented;
  5. in the event there is no duly appointed conservator of the ward's estate, the guardian shall have the power to approve or withhold approval of any contract, except for necessities, which the ward may make or wish to make;
  6. the duty and power to exercise supervisory authority over the ward in a manner which limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services;
  7. if there is no acting conservator of the estate for the ward, the guardian has the power to apply on behalf of the ward for any assistance, services, or benefits available to the ward through any unit of government;
  8. unless otherwise ordered by the court, the ward retains the right to vote.

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MISSISSIPPI

Miss. Code. Ann. § 93-13-38 (West)
§ 93-13-38. Guardian's general functions

  1. (1) All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.
  2. It shall be the duty of the guardian of wards as defined by Section 1-3-58, Mississippi Code of 1972, to improve the estate committed to his charge, and to apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and of his family, if he have any, after obtaining an order of the court fixing the amount. And such guardian may be authorized by the court or chancellor to purchase on behalf of and in the name of the ward with any funds of such ward's estate sufficient and appropriate property for a home for such ward or his family on five (5) days' notice to a member of said family, or the necessary funds may be borrowed and the property purchased given as security. The guardian is empowered to collect and sue for and recover all debts due his said ward, and shall make payment of his debts out of the personal estate as executors and administrators discharge debts out of the estate of decedents, but the exempt property of the ward shall not be liable for debts, and no debts against such estate shall be payable by such guardian unless first probated and registered, as required of claims against the estate of decedent.
  3. The word “family” shall be taken for the purpose of this section to mean husband or wife and children; if there be no husband, wife or children, the father and mother; and if there be no father or mother, then the grandfather and grandmother, sisters and brothers of said ward.
  4. (a) On application of the guardian or any interested party, and after notice to all interested persons and to such other persons as the court may direct, and on a showing that the ward will probably remain incompetent during his lifetime, the court may, after hearing and by order, authorize the guardian to apply such principal or income of the ward's estate as is not required for the support of the ward during his lifetime or of his family towards the establishment of an estate plan for the purpose of minimizing income, estate, inheritance, or other taxes payable out of the ward's estate. The court may authorize the guardian to make gifts of the ward's personal property or real estate, outright or in trust, on behalf of the ward, to or for the benefit of (i) organizations to which charitable contributions may be made under the Internal Revenue Code and in which it is shown the ward would reasonably have an interest, (ii) the ward's heirs at law who are identifiable at the time of the order, (iii) devisees under the ward's last validly executed will, if there be such a will, and (iv) a person serving as guardian of the ward provided he is eligible under either category (ii) or (iii) above.

    (b) The person making application to the court shall outline the proposed estate plan, setting forth all the benefits to be derived therefrom. The application shall also indicate that the planned disposition is consistent with the intentions of the ward insofar as they can be ascertained. If the ward's intentions cannot be ascertained, the ward will be presumed to favor reduction in the incidence of the various forms of taxation and the partial distribution of his estate as herein provided.

    (c) The court:
    1. Shall appoint a guardian ad litem for the ward; and
    2. May appoint a guardian ad litem for any interested party at any stage of the proceedings, if deemed advisable for the protection of the interested party.
    (d) Subsequent modifications of an approved plan may be made by similar application to the court.

    (e) Before signing an order to effectuate the provisions of this subsection (4), the chancellor shall review the ward's will, if the will is known or can be produced, to determine that a gift made under this subsection (4) is consistent with the will.

MISSOURI
Mo. Ann. Stat. § 475.120 (West)


475.120. General powers and duties of guardian of the person--social service agency acting on behalf of ward, requirements

  1. 1The guardian of the person of a minor shall be entitled to the custody and control of the ward and shall provide for the ward's education, support and maintenance.
  2. A guardian or limited guardian of an incapacitated person shall act in the best interest of the ward. A limited guardian of an incapacitated person shall have the powers and duties enumerated by the court in the adjudication order or any later modifying order.
  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 setting reasonably available;
    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.
  4. A guardian of an adult or minor ward is not obligated by virtue of such guardian's appointment to use the guardian's own financial resources for the support of the ward. If the ward's estate and available public benefits are inadequate for the proper care of the ward, the guardian or conservator may apply to the county commission pursuant to section 475.370.
  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.
  6. Only the director or chief administrative officer of a social service agency serving as guardian of an incapacitated person, or such person's designee, is legally authorized to act on behalf of the ward.
  7. A social service agency serving as guardian of an incapacitated person shall notify the court within fifteen days after any change in the identity of the professional individual who has primary responsibility for providing guardianship services to the incapacitated person.
  8. Any social service agency serving as guardian may not provide other services to the ward.

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MONTANA

Mont. Code Ann. § 72-5-321

72-5-321. Powers and duties of guardian of incapacitated person

  1. The powers and duties of a limited guardian are those specified in the order appointing the guardian. The limited guardian is required to report the condition of the incapacitated person and of the estate that has been subject to the guardian's possession and control, as required by the court or by court rule.
  2. A full guardian of an incapacitated person has the same powers, rights, and duties respecting the ward that a parent has respecting an unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. In particular and without qualifying the foregoing, a full guardian has the following powers and duties, except as limited by order of the court:
    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, the full guardian is entitled to custody of the person of the ward and may establish the ward's place of residence within or outside of this state.
    2. If entitled to custody of the ward, the full guardian shall make provision for the care, comfort, and maintenance of the ward and whenever appropriate arrange for the ward's training and education. Without regard to custodial rights of the ward's person, the full guardian shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of the ward is in need of protection.
    3. 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. 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 with the ward's wishes to the extent that those wishes can be determined. To determine the ward's wishes, the court shall determine by a preponderance of evidence if the ward's substituted judgment, as applied to the ward's current circumstances, conflicts with the withholding or withdrawal of life-sustaining treatment or a do not resuscitate order.
    4. If a conservator for the estate of the ward has not been appointed, a full guardian may:
      1. (i) institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform that person's duty;
      2. receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward. However, the full guardian may not use funds from the ward's estate for room and board that the full guardian, the full guardian's spouse, parent, or child has furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the incompetent ward, if notice is possible. The full guardian must exercise care to conserve any excess for the ward's needs.
    5. Unless waived by the court, a full guardian is required to report the condition of the ward and of the estate which has been subject to the full guardian's possession or control annually for the preceding year. A copy of the report must be served upon the ward's parent, child, or sibling if that person has made an effective request under 72-5-318.
    6. If a conservator has been appointed, all of the ward's estate received by the full guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this chapter, and the full guardian must account to the conservator for funds expended.
  3. Upon failure, as determined by the clerk of court, of the guardian to file an annual report, the court shall order the guardian to file the report and give good cause for the guardian's failure to file a timely report.
  4. Any full guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward. A limited guardian of a person for whom a conservator has been appointed shall control those aspects of the custody and care of the ward over which the limited guardian is given authority by the order establishing the limited guardianship. The full guardian or limited guardian is entitled to receive reasonable sums for the guardian's services and for room and board furnished to the ward as agreed upon between the guardian and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The full guardian or limited guardian authorized to oversee the incapacitated person's care may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.
  5. A full guardian or limited guardian may not involuntarily commit for mental health treatment or for treatment of a developmental disability or for observation or evaluation a ward who is unwilling or unable to give informed consent to commitment, except as provided in 72-5-322, unless the procedures for involuntary commitment set forth in Title 53, chapters 20 and 21, are followed. This chapter does not abrogate any of the rights of mentally disabled persons provided for in Title 53, chapters 20 and 21.
    (6) Upon the death of a full guardian's or limited guardian's ward, the full guardian or limited guardian, upon an order of the court and if there is no personal representative authorized to do so, may make necessary arrangements for the removal, transportation, and final disposition of the ward's physical remains, including burial, entombment, or cremation, and for the receipt and disposition of the ward's clothing, furniture, and other personal effects that may be in the possession of the person in charge of the ward's care, comfort, and maintenance at the time of the ward's death.

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NEBRASKA
Nev. Rev. Stat. Ann. § 159.079 (West)

159.079. General functions of guardian of person; establishment or change of ward’s residence by guardian

  1. Except as otherwise ordered by the court, a guardian of the person has the care, custody and control of the person of the ward, and has the authority and, subject to subsection 2, shall perform the duties necessary for the proper care, maintenance, education and support of the ward, including, without limitation, the following:
    1. Supplying the ward with food, clothing, shelter and all incidental necessaries, including locating an appropriate residence for the ward.
    2. Authorizing medical, surgical, dental, psychiatric, psychological, hygienic or other remedial care and treatment for the ward.
    3. Seeing that the ward is properly trained and educated and that the ward has the opportunity to learn a trade, occupation or profession.
  2. In the performance of the duties enumerated in subsection 1 by a guardian of the person, due regard must be given to the extent of the estate of the ward. A guardian of the person is not required to incur expenses on behalf of the ward except to the extent that the estate of the ward is sufficient to reimburse the guardian.
  3. A guardian of the person is the ward's personal representative for purposes of the Health Insurance Portability and Accountability Act of 19961, Public Law 104-191, and any applicable regulations. The guardian of the person has authority to obtain information from any government agency, medical provider, business, creditor or third party who may have information pertaining to the ward's health care or health insurance.
  4. A guardian of the person may establish and change the residence of the ward at any place within this State without the permission of the court. The guardian shall select the least restrictive appropriate residence which is available and necessary to meet the needs of the ward and which is financially feasible.
  5. A guardian of the person shall petition the court for an order authorizing the guardian to change the residence of the ward to a location outside of this State. The guardian must show that the placement outside of this State is in the best interest of the ward or that there is no appropriate residence available for the ward in this State. The court shall retain jurisdiction over the guardianship unless the guardian files for termination of the guardianship pursuant to NRS 159.1905 or 159.191 or the jurisdiction of the guardianship is transferred to the other state.
  6. This section does not relieve a parent or other person of any duty required by law to provide for the care, support and maintenance of any dependent.

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NEVADA
Nev. Rev. Stat. Ann. § 159.083 (West)

159.083. General functions of guardian of estate

A guardian of the estate shall:

  1. Protect, preserve, manage and dispose of the estate of the ward according to law and for the best interests of the ward.
  2. Apply the estate of the ward for the proper care, maintenance, education and support of the ward and any person to whom the ward owes a legal duty of support, having due regard for other income or property available to support the ward or any person to whom the ward owes a legal duty of support.
  3. Have such other authority and perform such other duties as are provided by law.

Nev. Rev. Stat. Ann. § 159.079 (West)

159.079. General functions of guardian of person; establishment or change of ward’s residence by guardian

  1. Except as otherwise ordered by the court, a guardian of the person has the care, custody and control of the person of the ward, and has the authority and, subject to subsection 2, shall perform the duties necessary for the proper care, maintenance, education and support of the ward, including, without limitation, the following:
    1. Supplying the ward with food, clothing, shelter and all incidental necessaries, including locating an appropriate residence for the ward.
    2. Authorizing medical, surgical, dental, psychiatric, psychological, hygienic or other remedial care and treatment for the ward.
    3. Seeing that the ward is properly trained and educated and that the ward has the opportunity to learn a trade, occupation or profession.
  2. In the performance of the duties enumerated in subsection 1 by a guardian of the person, due regard must be given to the extent of the estate of the ward. A guardian of the person is not required to incur expenses on behalf of the ward except to the extent that the estate of the ward is sufficient to reimburse the guardian.
  3. A guardian of the person is the ward's personal representative for purposes of the Health Insurance Portability and Accountability Act of 19961, Public Law 104-191, and any applicable regulations. The guardian of the person has authority to obtain information from any government agency, medical provider, business, creditor or third party who may have information pertaining to the ward's health care or health insurance.
  4. A guardian of the person may establish and change the residence of the ward at any place within this State without the permission of the court. The guardian shall select the least restrictive appropriate residence which is available and necessary to meet the needs of the ward and which is financially feasible.
  5. A guardian of the person shall petition the court for an order authorizing the guardian to change the residence of the ward to a location outside of this State. The guardian must show that the placement outside of this State is in the best interest of the ward or that there is no appropriate residence available for the ward in this State. The court shall retain jurisdiction over the guardianship unless the guardian files for termination of the guardianship pursuant to NRS 159.1905 or 159.191 or the jurisdiction of the guardianship is transferred to the other state.
  6. This section does not relieve a parent or other person of any duty required by law to provide for the care, support and maintenance of any dependent.

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NEW HAMPSHIRE

N.H. Rev. Stat. Ann. § 464-A:25

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, except as modified by order of the court:

(a) 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, the 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. A guardian may admit a ward to a state institution with 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. Authorization for such admission shall not be time limited unless the court so orders. Authority to admit a ward to a state institution with prior approval under this subparagraph shall not be subject to the limitations contained in RSA 464-A:25, I(a)(2) through (7).
  2. A guardian may admit a ward to a state institution without prior approval of the probate court 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 to the Merrimack county probate court notice of the admission and the reasons therefor, together with a copy of the certificate by the physician or psychiatrist.
  3. The Merrimack county probate court shall review the guardian's notice within 48 hours of the filing of the notice, excluding days when the court is closed, to determine whether the notice on its face appears to establish that the placement is in the ward's best interest and is the least restrictive placement available. If the court concludes that the notice is insufficient, the court shall order the immediate release of the ward from the state institution. If the court concludes that the notice is sufficient, counsel for the ward shall be appointed no later than 48 hours following the court's review of the guardian's notice, excluding days when the court is closed. Notice of the appointment shall be transmitted to the ward, to the guardian, and to counsel. Counsel's notice shall be transmitted in writing and electronically or in another manner which is likely to give actual notice of the appointment to counsel at the earliest practicable time. For purposes of proceedings regarding admissions to state institutions without prior court approval, the ward shall have the right to legal counsel in the same manner as provided in RSA 464-A:6. The court shall also provide the ward a notice stating that the ward has the right to appointed counsel, the right to oppose the admission by the guardian, and the right to a hearing and to present evidence at that hearing.
  4. Counsel for a ward admitted to a state institution who has been appointed pursuant to subparagraph (3) shall deliver a written report to the court within 5 days of his or her appointment which shall declare counsel's report shall include a request for a hearing on behalf of the ward. A copy of counsel's report shall be sent to the ward and to the guardian. If the court does not receive a written report from counsel within 5 days of counsel's appointment, the court shall order appropriate relief, including but not limited to substitution of counsel, an order to show cause, or scheduling of a hearing on the propriety of the admission without awaiting a report from counsel.
  5. Upon receipt of a request for a hearing, the court shall schedule a hearing on the admission to a state institution without prior approval of the probate court, at which the guardian shall have the burden of proving, beyond a reasonable doubt, that the placement is in the ward's best interest and is the least restrictive placement available. The hearing shall be held within 10 days, excluding days when the court is closed, from the date that the request is received.
  6. A guardian may not admit a ward to a state institution for more than 60 days for any single admission or more than 90 days in any 12-month period upon certification of a physician or psychiatrist without filing a petition requesting approval of the probate court.
  7. At any time, the ward or counsel for the ward may request a hearing on the admission to a state institution without prior approval of the probate court, at which the guardian shall have the burden of proving, beyond a reasonable doubt, that the placement is in the ward's best interest and is the least restrictive placement available. The hearing shall be held within 15 days, excluding days when the court is closed, from the date that the hearing is requested.

(b) If entitled to custody of the ward, a guardian shall make provision for the care, comfort and maintenance of the ward, and, whenever appropriate, arrange for the ward's training, education or rehabilitation. The guardian shall take reasonable care of the ward's clothing and personal effects.

(c) A guardian shall file an annual report with the probate court, unless the court finds that such report is not necessary.

(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, provided, that the court has previously authorized the guardian to have this authority, which authority shall be reviewed by the court as part of its review of the guardian's annual report. 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.

(e) If a ward has previously executed a valid living will, under RSA 137-J, a guardian shall be bound by the terms of such document, provided that the court may hold a hearing to interpret any ambiguity in such document. If a ward has previously executed a valid durable power of attorney for health care, RSA 137-J shall apply.

(f) Upon a finding that ensuring treatment compliance is in the best interest of a ward, the probate court may authorize a guardian appointed pursuant to RSA 464-A, to request the assistance of any law enforcement official to restrain or transport, or both, the ward to receive appropriate treatment.

(g) A guardian may authorize a health care provider to restrain or forcibly administer treatment, or both, to the ward, subject to any limitations imposed by the court.

(h) A guardian shall act with respect to the ward in a manner which safeguards to the greatest extent possible the civil rights of the ward, and shall restrict the personal freedom of the ward only to the extent necessary.

II. The court may limit the powers of the guardian of the person or impose additional duties if it deems such action desirable for the best interests of the ward.

N.H. Rev. Stat. Ann. § 137-J:10

137-J:10 Withholding or Withdrawal of Life-Sustaining Treatment.

I. In the event a health care decision to withhold or withdraw life-sustaining treatment, including medically administered nutrition and hydration, is to be made by an agent, and the principal has not executed the “living will” of the advance directive, the following additional conditions shall apply:

(a) The principal's attending physician or APRN shall certify in writing that the principal lacks the capacity to make health care decisions.

(b) Two physicians or a physician and an APRN shall certify in writing that the principal is near death or is permanently unconscious.

(c) Notwithstanding the capacity of an agent to act, the agent shall make a good faith effort to explore all avenues reasonably available to discern the desires of the principal including, but not limited to, the principal's advance directive, the principal's written or spoken expressions of wishes, and the principal's known religious or moral beliefs.

II. Notwithstanding paragraph I, medically administered nutrition and hydration and life-sustaining treatment shall not be withdrawn or withheld under an advance directive unless:

(a) There is a clear expression of such intent in the directive;

(b) The principal objects pursuant to RSA 137-J:5, IV; or

(c) Such treatment would have the unintended consequence of hastening death or causing irreparable harm as certified by an attending physician and a physician knowledgeable about the patient's condition.

III. The withholding or withdrawal of life-sustaining treatment pursuant to the provisions of this chapter shall at no time be construed as a suicide or murder for any legal purpose. Nothing in this chapter shall be construed to constitute, condone, authorize, or approve suicide, assisted suicide, mercy killing, or euthanasia, or permit any affirmative or deliberate act or omission to end one's own life or to end the life of another other than either to permit the natural process of dying of a patient near death or the removal of life-sustaining treatment from a patient in a permanently unconscious condition as provided in this chapter. The withholding or withdrawal of life-sustaining treatment in accordance with the provisions of this chapter, however, shall not relieve any individual of responsibility for any criminal acts that may have caused the principal's condition.

IV. Nothing in this chapter shall be construed to condone, authorize, or approve:

(a) The consent to withhold or withdraw life-sustaining treatment from a pregnant principal, unless, to a reasonable degree of medical certainty, as certified on the principal's medical record by the attending physician or APRN and an obstetrician who has examined the principal, such treatment or procedures will not maintain the principal in such a way as to permit the continuing development and live birth of the fetus or will be physically harmful to the principal or prolong severe pain which cannot be alleviated by medication.
<[Paragraph IV(b) effective until January 1, 2013; see also paragraph IV(b) set out below.]>
(b) The withholding or withdrawing of medically administered nutrition and hydration or life-sustaining treatment from a mentally incompetent or developmentally disabled person, unless such person has a validly executed advance directive or such action is authorized by an existing guardianship or other court order, or such action is taken in accordance with the facility's standard protocol as applicable to its general patient population.
<[Paragraph IV(b) effective January 1, 2013; see also paragraph IV(b) set out above.]>

(b) The withholding or withdrawing of medically administered nutrition and hydration or life-sustaining treatment from a mentally incompetent or developmentally disabled person, unless such person has a validly executed advance directive or such action is authorized by an existing guardianship or other court order, or, in the absence of such directive, authorization, or order, such action is taken in accordance with the standard protocol of a health care facility licensed under RSA 151 as applicable to its general patient population.

V. Nothing in this chapter shall impair or supersede any other legal right or responsibility which any person may have to effect life-sustaining treatment in any lawful manner; provided, that this paragraph shall not be construed to authorize any violation of RSA 137-J:7, II or III.

VI. Nothing in this chapter shall be construed to revoke or adversely affect the privileges or immunities of health care providers or residential care providers and others to provide treatment to persons in need thereof in an emergency, as provided for under New Hampshire law.

VII. Nothing in this chapter shall be construed to create a presumption that in the absence of an advance directive, a person wants life-sustaining treatment to be either taken or withdrawn. This chapter shall also not be construed to supplant any existing rights and responsibilities under the law of this state governing the conduct of physicians or APRNs in consultation with patients or their families or legal guardians in the absence of an advance directive.

NEW JERSEY
N.J. Stat. Ann. § 3B:12-57 (West)

3B:12-57. Powers and duties of a guardian of the person of a ward

f. In accordance with section 12 of P.L.2005, c.304 (C.3B:12-24.1), a guardian of the person of a ward shall exercise authority over matters relating to the rights and best interest of the ward's personal needs, only to the extent adjudicated by a court of competent jurisdiction. In taking or forbearing from any action affecting the personal needs of a ward, a guardian shall give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry. To the extent that it is consistent with the terms of any order by a court of competent jurisdiction, the guardian shall:

  1. take custody of the ward and establish the ward's place of abode in or outside of this State;
  2. personally visit the ward or if a public agency which is authorized to act pursuant to P.L.1965, c. 59 (C.30:4-165.1 et seq.) and P.L.1970, c. 289 (C.30:4-165.7 et seq.) or the Office of the Public Guardian pursuant to P.L. 1985, c. 298 (C.52:27G-20 et seq.) or their representatives which may include a private or public agency, visits the ward not less than once every three months, or as deemed appropriate by the court, and otherwise maintain sufficient contact with the ward to know his capacities, limitations, needs, opportunities and physical and mental health;
  3. provide for the care, comfort and maintenance and, whenever appropriate, the education and training of the ward;
  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;
  5. take reasonable care of the ward's clothing, furniture, vehicles and other personal effects and, where appropriate, sell or dispose of such effects to meet the current needs of the ward;
  6. institute an action for the appointment of a guardian of the property of the ward, if necessary for the protection of the property;
  7. develop a plan of supportive services for the needs of the ward and a plan to obtain the supportive services;
  8. if necessary, institute an action against a person having a duty to support the ward or to pay any sum for the ward's welfare in order to compel the performance of the duties;
  9. receive money, payable from any source for the current support of the ward, and tangible personal property deliverable to the ward. Any sums so received shall be applied to the ward's current needs for support, health care, education and training in the exercise of the guardian's reasonable discretion, with or without court order, with or without regard to the duty or ability of any person to support or provide for the ward and with or without regard to any other funds, income or property that may be available for that purpose, unless an application is made to the court to establish a supplemental needs trust or other trust arrangement. However, the guardian may not use funds from the ward's estate for room and board, which the guardian, the guardian's spouse or domestic partner as defined in section 3 of P.L.2003, c. 246 (C.26:8A-3), parent or child have furnished the ward, unless agreed to by a guardian of the ward's estate pursuant to N.J.S.3B: 12-41, or unless a charge for the service is approved by order of the court made upon notice to at least one of the heirs of the ward, if possible. The guardian shall exercise care to conserve any excess funds for the ward's needs ; and
  10. If necessary, institute an action that could be maintained by the ward including but not limited to, actions alleging fraud, abuse, undue influence and exploitation.

g. In the exercise of the foregoing powers, the guardian shall encourage the ward to participate with the guardian in the decision-making process to the maximum extent of the ward's ability in order to encourage the ward to act on his own behalf whenever he is able to do so, and to develop or regain higher capacity to make decisions in those areas in which he is in need of guardianship services, to the maximum extent possible.

N.J. Stat. Ann. § 26:2H-61 (West)

26:2H-61. Rights and responsibilities of the health care representative

a. If it has been determined that the patient lacks decision making capacity, a health care representative shall have authority to make health care decisions on behalf of the patient. The health care representative shall act in good faith and within the bounds of the authority granted by the advance directive and by this act.

b. If a different individual has been appointed as the patient's legal guardian, the health care representative shall retain legal authority to make health care decisions on the patient's behalf, unless the terms of the legal guardian's court appointment or other court decree provide otherwise.

c. The conferral of legal authority on the health care representative shall not be construed to impose liability upon the health care representative for any portion of the patient's health care costs.

d. An individual designated as a health care representative or as an alternate health care representative may decline to serve in that capacity.

e. The health care representative shall exercise the patient's right to be informed of the patient's medical condition, prognosis and treatment options, and to give informed consent to, or refusal of, health care.

f. In the exercise of these rights and responsibilities, the health care representative shall seek to make the health care decision the patient would have made had he possessed decision making capacity under the circumstances, or, when the patient's wishes cannot adequately be determined, shall make a health care decision in the best interests of the patient.

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NEW MEXICO

N.M. Stat. Ann. § 45-5-312 (West)

§ 45-5-312. General powers and duties of the limited guardian and guardian

A. If the court enters judgment pursuant to Subsection C of Section 45-5-304 NMSA 1978, it shall appoint a limited guardian if it determines that the incapacitated person is able to manage some but not all aspects of personal care. The court shall specify those powers that the limited guardian shall have and may further restrict each power so as to permit the incapacitated person to care for the incapacitated person's own self commensurate with the incapacitated person's ability to do so. A person for whom a limited guardian has been appointed retains all legal and civil rights except those that have been specifically granted to the limited guardian by the court. The limited guardian shall exercise supervisory powers over the incapacitated person in a manner that is the least restrictive form of intervention consistent with the order of the court.

B. A guardian of an incapacitated person has the same powers, rights and duties respecting the incapacitated person that a parent has respecting an unemancipated minor child, except that a guardian is not legally obligated to provide from the guardian's own funds for the incapacitated person and is not liable to third persons for acts of the incapacitated person solely by reason of the guardianship. 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:

  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 incapacitated person, a guardian is entitled to custody of the incapacitated person and may establish the incapacitated person's place of abode within or without New Mexico;
  2. if entitled to custody of the incapacitated person, a guardian shall make provision for the care, comfort and maintenance of the incapacitated person and, whenever appropriate, arrange for training and education. The guardian shall take reasonable care of the incapacitated person's clothing, furniture, vehicles and other personal effects and commence conservatorship proceedings if other property of the incapacitated person is in need of protection;
  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;
  4. if no conservator for the estate of the incapacitated person has been appointed, if the court has determined that a conservatorship is not appropriate and if a guardian appointed by the court has been granted authority to make financial decisions on behalf of the protected person in the order of appointment and in the letters of guardianship pursuant to Subsection C of Section 45-5-308 NMSA 1978, the guardian has the following powers and duties, including the power:
    1. to institute proceedings to compel any person under a duty to support the protected person or to pay sums for the welfare of the protected person to perform that duty;
    2. to receive money and tangible property deliverable to the protected person and apply the money and property for support, care and education of the protected person, but the guardian shall not use funds from has furnished the protected person, unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the protected person, if notice is possible;
    3. to serve as advocate and decision-maker for the protected person in any disputes with persons or organizations, including financial institutions, regarding the protected person's finances;
    4. to obtain information regarding the protected person's assets and income from persons or organizations handling the protected person's finances;
    5. to file an initial inventory of all property belonging to the protected person within ninety days after appointment; and
    6. to exercise care to conserve any excess for the protected person's needs and include in the guardian's ninety-day and annual reports a description of decisions made regarding the protected person's finances and property; and
  5. the guardian shall exercise the guardian's supervisory powers over the incapacitated person in a manner that is least restrictive of the incapacitated person's personal freedom and consistent with the need for supervision.

C. A guardian of an incapacitated person for whom a conservator also has been appointed shall control the care and custody of the incapacitated person and is entitled to receive reasonable sums for services and for room and board furnished to the incapacitated person. The guardian may request the conservator to expend the incapacitated person's estate by payment to third persons or institutions for the incapacitated person's care and maintenance.

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NEW YORK

N.Y. Mental Hyg. Law § 81.20 (McKinney)

§ 81.20 Duties of guardian

(a) Duties of guardian generally.

  1. a guardian shall exercise only those powers that the guardian is authorized to exercise by court order;
  2. a guardian shall exercise the utmost care and diligence when acting on behalf of the incapacitated
    person;
  3. a guardian shall exhibit the utmost degree of trust, loyalty and fidelity in relation to the incapacitated person;
  4. a guardian shall file an initial and annual reports in accordance with sections 81.30 and 81.31 of this article;
  5. a guardian shall visit the incapacitated person not less than four times a year or more frequently as specified in the court order;
  6. a guardian who is given authority with respect to property management for the incapacitated person shall:
    1. afford the incapacitated person the greatest amount of independence and self-determination with respect to property management in light of that person's functional level, understanding and appreciation of his or her functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living;
    2. preserve, protect, and account for such property and financial resources faithfully;
    3. determine whether the incapacitated person has executed a will, determine the location of any will, and the appropriate persons to be notified in the event of the death of the incapacitated person and, in the event of the death of the incapacitated person, notify those persons;
    4. use the property and financial resources and income available therefrom to maintain and support the incapacitated person, and to maintain and support those persons dependent upon the incapacitated person;
    5. at the termination of the appointment, deliver such property to the person legally entitled to it;
    6. file with the recording officer of the county wherein the incapacitated person is possessed of real property, an acknowledged statement to be recorded and indexed under the name of the incapacitated person identifying the real property possessed by the incapacitated person, and the tax map numbers of the property, and stating the date of adjudication of incapacity of the person regarding property management, and the name, address, and telephone number of the guardian and the guardian's surety; and
    7. perform all other duties required by law.
  7. a guardian who is given authority relating to the personal needs of the incapacitated person shall afford the incapacitated person the greatest amount of independence and self-determination with respect to personal needs in light of that person's functional level, understanding and appreciation of that person's functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living.

N.Y. Mental Hyg. Law § 81.22 (McKinney)
§ 81.22 Powers of guardian; personal needs

(a) Consistent with the functional limitations of the incapacitated person, that person's understanding and appreciation of the harm that he or she is likely to suffer as the result of the inability to provide for personal needs, and that person's personal wishes, preferences, and desires with regard to managing the activities of daily living, and the least restrictive form of intervention, the 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:

  1. determine who shall provide personal care or assistance;
  2. make decisions regarding social environment and other social aspects of the life of the incapacitated person;
  3. determine whether the incapacitated person should travel;
  4. determine whether the incapacitated person should possess a license to drive;
  5. authorize access to or release of confidential records;
  6. make decisions regarding education;
  7. apply for government and private benefits;
  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 twenty-nine-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;
  9. choose the place of abode; the choice of abode must be consistent with the findings under section 81.15 of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person.

(b) No guardian may:

  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 made by the incapacitated person pursuant to sections 5-1501, 5-1601 and 5-1602 of the general obligations law, sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, or any living will.

N.Y. Pub. Health Law § 2994-d (McKinney)
§ 2994-d. Health care decisions for adult patients by surrogates

  1. Identifying the surrogate. One person from the following list from the class highest in priority when persons in prior classes are not reasonably available, willing, and competent to act, shall be the surrogate for an adult patient who lacks decision-making capacity. However, such person may designate any other person on the list to be surrogate, provided no one in a class higher in priority than the person designated objects:
    1. A guardian authorized to decide about health care pursuant to article eighty-one of the mental hygiene law;
    2. The spouse, if not legally separated from the patient, or the domestic partner;
    3. A son or daughter eighteen years of age or older;
    4. A parent;
    5. A brother or sister eighteen years of age or older;
    6. A close friend.
  2. Restrictions on who may be a surrogate. An operator, administrator, or employee of a hospital or a mental hygiene facility from which the patient was transferred, or a physician who has privileges at the hospital or a health care provider under contract with the hospital may not serve as the surrogate for any adult who is a patient of such hospital, unless such individual is related to the patient by blood, marriage, domestic partnership, or adoption, or is a close friend of the patient whose friendship with the patient preceded the patient's admission to the facility. If a physician serves as surrogate, the physician shall not act as the patient's attending physician after his or her authority as surrogate begins.
  3. Authority and duties of surrogate. (a) Scope of surrogate's authority.
    1. Subject to the standards and limitations of this article, the surrogate shall have the authority to make any and all health care decisions on the adult patient's behalf that the patient could make.
    2. Nothing in this article shall obligate health care providers to seek the consent of a surrogate if an adult patient has already made a decision about the proposed health care, expressed orally or in writing or, with respect to a decision to withdraw or withhold life-sustaining treatment expressed either orally during hospitalization in the presence of two witnesses eighteen years of age or older, at least one of whom is a health or social services practitioner affiliated with the hospital, or in writing. If an attending physician relies on the patient's prior decision, the physician shall record the prior decision in the patient's medical record. If a surrogate has already been designated for the patient, the attending physician shall make reasonable efforts to notify the surrogate prior to implementing the decision; provided that in the case of a decision to withdraw or withhold life-sustaining treatment, the attending physician shall make diligent efforts to notify the surrogate and, if unable to notify the surrogate, shall document the efforts that were made to do so.

(b) Commencement of surrogate's authority. The surrogate's authority shall commence upon a determination, made pursuant to section twenty-nine hundred ninety-four-c of this article, that the adult patient lacks decision-making capacity and upon identification of a surrogate pursuant to subdivision one of this section. In the event an attending physician determines that the patient has regained decision-making capacity, the authority of the surrogate shall cease.

(c) Right and duty to be informed. Notwithstanding any law to the contrary, the surrogate shall have the right to receive medical information and medical records necessary to make informed decisions about the patient's health care. Health care providers shall provide and the surrogate shall seek information necessary to make an informed decision, including information about the patient's diagnosis, prognosis, the nature and consequences of proposed health care, and the benefits and risks of and alternative to proposed health care.

  1. Decision-making standards. (a) The surrogate shall make health care decisions:
    1. in accordance with the patient's wishes, including the patient's religious and moral beliefs; or
    2. if the patient's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the patient's best interests. An assessment of the patient's best interests shall include: consideration of the dignity and uniqueness of every person; the possibility and extent of preserving the patient's life; the preservation, improvement or restoration of the patient's health or functioning; the relief of the patient's suffering; and any medical condition and such other concerns and values as a reasonable person in the patient's circumstances would wish to consider.

(b) In all cases, the surrogate's assessment of the patient's wishes and best interests shall be patient-centered; health care decisions shall be made on an individualized basis for each patient, and shall be consistent with the values of the patient, including the patient's religious and moral beliefs, to the extent reasonably possible.

  1. Decisions to withhold or withdraw life-sustaining treatment. In addition to the standards set forth in subdivision four of this section, decisions by surrogates to withhold or withdraw life-sustaining treatment (including decisions to accept a hospice plan of care that provides for the withdrawal or withholding of life-sustaining treatment) shall be authorized only if the following conditions are satisfied, as applicable:

(a) (i) Treatment would be an extraordinary burden to the patient and an attending physician determines, with the independent concurrence of another physician, that, to a reasonable degree of medical certainty and in accord with accepted medical standards, (A) the patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or (B) the patient is permanently unconscious; or

(ii) The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending physician with the independent concurrence of another physician to a reasonable degree of medical certainty and in accord with accepted medical standards.

(b) In a residential health care facility, a surrogate shall have the authority to refuse life-sustaining treatment under subparagraph (ii) of paragraph (a) of this subdivision only if the ethics review committee, including at least one physician who is not directly responsible for the patient's care, or a court of competent jurisdiction, reviews the decision and determines that it meets the standards set forth in this article. This requirement shall not apply to a decision to withhold cardiopulmonary resuscitation.

(c) In a general hospital, if the attending physician objects to a surrogate's decision, under subparagraph (ii) of paragraph (a) of this subdivision, to withdraw or withhold nutrition and hydration provided by means of medical treatment, the decision shall not be implemented until the ethics review committee, including at least one physician who is not directly responsible for the patient's care, or a court of competent jurisdiction, reviews the decision and determines that it meets the standards set forth in this subdivision and subdivision four of this section.

(d) Providing nutrition and hydration orally, without reliance on medical treatment, is not health care under this article and is not subject to this article.

(e) Expression of decisions. The surrogate shall express a decision to withdraw or withhold life-sustaining treatment either orally to an attending physician or in writing.

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NORTH CAROLINA

N.C. Gen. Stat. Ann. § 35A-1241 (West)

§ 35A-1241. Powers and duties of guardian of the person
(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:

  1. The guardian of the person is entitled to custody of the person of the guardian's ward and shall make provision for the ward's care, comfort, and maintenance, and shall, as appropriate to the ward's needs, arrange for the ward's training, education, employment, rehabilitation or habilitation. The guardian of the person shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects that are with the ward.
  2. The guardian of the person may establish the ward's place of abode within or without this State. In arranging for a place of abode, the guardian of the person shall give preference to places within this State over places not in this State if in-State and out-of-State places are substantially equivalent. The guardian also shall give preference to places that are not treatment facilities. If the only available and appropriate places of domicile are treatment facilities, the guardian shall give preference to community-based treatment facilities, such as group homes or nursing homes, over treatment facilities that are not community-based.
  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; provided that, if the patient has a health care agent appointed pursuant to a valid health care power of attorney, the health care agent shall have the right to exercise the authority granted in the health care power of attorney unless the Clerk has suspended the authority of that health care agent in accordance with G.S. 35A-1208. 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 G.S. 35A-1245. The guardian of the person may give any other consent or approval on the ward's behalf that may be required or in the ward's best interest. The guardian may petition the clerk for the clerk's concurrence in the consent or approval.
    (b) A guardian of the person is entitled to be reimbursed out of the ward's estate for reasonable and proper expenditures incurred in the performance of his duties as guardian of the ward's person.
    (c) A guardian of the person, if he has acted within the limits imposed on him by this Article or the order of appointment or both, shall not be liable for damages to the ward or the ward's estate, merely by reason of the guardian's:
    1. Authorizing or giving any consent or approval necessary to enable the ward to receive legal, psychological, or other professional care, counsel, treatment, or service, in a situation where the damages result from the negligence or other acts of a third person; or
    2. Authorizing medical treatment or surgery for his ward, if the guardian acted in good faith and was not negligent.

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NORTH DAKOTA

N.D. Cent. Code Ann. § 30.1-28-12 (West)
§ 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. To the extent that it is consistent with the terms of an order by a court of competent jurisdiction, the guardian is entitled to custody of the person of the ward and may establish the ward's place of residence within or without this state. However, 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.
  3. If entitled to custody of the ward, the guardian should make provision for the care, comfort, and maintenance of the ward and, whenever appropriate, arrange for the ward's training, education, or habilitative services. The guardian shall take reasonable care of the ward's clothing, furniture, vehicles, and personal effects.
  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.
  5. When exercising the authority granted by the court, the guardian shall safeguard the civil rights and personal autonomy of the ward to the fullest extent possible by:
    a. Involving the ward as fully as is practicable in making decisions with respect to the ward's living arrangements, health care, and other aspects of the ward's care; and
    b. Ensuring the ward's maximum personal freedom by using the least restrictive forms of intervention and only as necessary for the safety of the ward or others.
  6. If no conservator for the estate of the ward has been appointed and if the guardian has been granted authority to make financial decisions on behalf of the ward, the guardian may:
    a. Institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform that duty.
    b. Receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but, the guardian may not use funds from the ward's estate for room and board which the guardian or the guardian's spouse, parent, or child have furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. The guardian shall exercise care to conserve any excess for the ward's needs.
  7. If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this title, and the guardian must account to the conservator for funds expended.
  8. A guardian shall file an annual report with the court informing the court of the status or condition of the ward. The report must include changes that have occurred since the previous reporting period and an accounting of the ward's estate. The guardian shall report whether the ward has resided in an institution, whether the ward continues to require guardianship, and whether any powers of the guardian should be increased or limited. The filing of a report and its acceptance by the court or clerk of district court does not constitute an adjudication or a determination of the merits of the report nor does the filing of the report constitute the court's approval of the report. The court may approve a report and allow and settle an accounting only upon notice to the ward's guardian ad litem and other interested persons who have made an appearance or requested notice of proceedings. The office of the state court administrator shall provide printed forms that may be used to fulfill reporting requirements. Any report must be similar in substance to the state court administrator's form. The forms must be available in the office of clerk of district court or obtainable through the supreme court's internet website.
  9. Copies of the guardian's annual report to the court and of any other reports required by the court must be mailed to the ward. The ward's copy must be accompanied by a statement, printed with not less than double-spaced twelve-point type, of the ward's right to seek alteration, limitation, or termination of the guardianship at any time.
  10. The guardian is entitled to receive reasonable sums for services and for room and board furnished to the ward as approved by the court or as agreed upon between the guardian and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

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OHIO

Ohio Rev. Code Ann. § 2111.13 (West)
2111.13 Duties of guardian of person

(A) When a guardian is appointed to have the custody and maintenance of a ward, and to have charge of the education of the ward if the ward is a minor, the guardian's duties are as follows:

  1. To protect and control the person of the ward;
  2. To provide suitable maintenance for the ward when necessary, which shall be paid out of the estate of such ward upon the order of the guardian of the person;
  3. To provide such maintenance and education for such ward as the amount of the ward's estate justifies when the ward is a minor and has no father or mother, or has a father or mother who fails to maintain or educate the ward, which shall be paid out of such ward's estate upon the order of the guardian of the person;
  4. To obey all the orders and judgments of the probate court touching the guardianship.

(B) Except as provided in section 2111.131 of the Revised Code, no part of the ward's estate shall be used for the support, maintenance, or education of such ward unless ordered and approved by the court.

(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.

(D) Unless a person with the right of disposition for a ward under section 2108.70 or 2108.81 of the
Revised Code has made a decision regarding whether or not consent to an autopsy or post-mortem examination on the body of the deceased ward under section 2108.50 of the Revised Code shall be given, a guardian of the person of a ward who has died may consent to the autopsy or post-mortem examination.

(E) If a deceased ward did not have a guardian of the estate, the estate is not required to be administered by a probate court, and a person with the right of disposition for a ward, as described in section 2108.70 or 2108.81 of the Revised Code, has not made a decision regarding the disposition of the ward's body or remains, the guardian of the person of the ward may authorize the burial or cremation of the ward.

(F) A guardian who gives consent or authorization as described in divisions (D) and (E) of this section shall notify the probate court as soon as possible after giving the consent or authorization.

Ohio Rev. Code Ann. § 2133.08 (West)
2133.08 Withholding or withdrawal of life-sustaining treatment

(A)(1) If written consent to the withholding or withdrawal of life-sustaining treatment, witnessed by two individuals who satisfy the witness eligibility criteria set forth in division (B)(1) of section 2133.02 of the Revised Code, is given by the appropriate individual or individuals as specified in division (B) of this section to the attending physician of a patient who is an adult, and if all of the following apply in connection with the patient, then, subject to section 2133.09 of the Revised Code, the patient's attending physician may withhold or withdraw the life-sustaining treatment:

  1. The attending physician and one other physician who examines the patient determine, in good faith, to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, that the patient is in a terminal condition or the patient currently is and for at least the immediately preceding twelve months has been in a permanently unconscious state, and the attending physician additionally determines, in good faith, to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, that the patient no longer is able to make informed decisions regarding the administration of life-sustaining treatment and that there is no reasonable possibility that the patient will regain the capacity to make those informed decisions.
  2. The patient does not have a declaration that addresses the patient's intent should the patient be determined to be in a terminal condition or in a permanently unconscious state, whichever applies, or a durable power of attorney for health care, or has a document that purports to be such a declaration or durable power of attorney for health care but that document is not legally effective.
  3. The consent of the appropriate individual or individuals is given after consultation with the patient's attending physician and after receipt of information from the patient's attending physician or a consulting physician that is sufficient to satisfy the requirements of informed consent.
  4. The appropriate individual or individuals who give a consent are of sound mind and voluntarily give the consent.
  5. If a consent would be given under division (B)(3) of this section, the attending physician made a good faith effort, and used reasonable diligence, to notify the patient's adult children who are available within a reasonable period of time for consultation as described in division (A)(1)(c) of this section.

(2) The consulting physician under division (A)(1)(a) of this section associated with a patient allegedly in a permanently unconscious state shall be a physician who, by virtue of advanced education or training, of a practice limited to particular diseases, illnesses, injuries, therapies, or branches of medicine or surgery or osteopathic medicine and surgery, of certification as a specialist in a particular branch of medicine or surgery or osteopathic medicine and surgery, or of experience acquired in the practice of medicine or surgery or osteopathic medicine and surgery, is qualified to determine whether the patient currently is and for at least the immediately preceding twelve months has been in a permanently unconscious state.

(B) For purposes of division (A) of this section, a consent to withhold or withdraw life-sustaining treatment may be given by the appropriate individual or individuals, in accordance with the following descending order of priority:

  1. If any, the guardian of the patient. This division does not permit or require, and shall not be construed as permitting or requiring, the appointment of a guardian for the patient.
  2. The patient's spouse;
  3. An adult child of the patient or, if there is more than one adult child, a majority of the patient's adult children who are available within a reasonable period of time for consultation with the patient's attending physician;
  4. The patient's parents;
  5. An adult sibling of the patient or, if there is more than one adult sibling, a majority of the patient's adult siblings who are available within a reasonable period of time for that consultation;
  6. The nearest adult who is not described in divisions (B)(1) to (5) of this section, who is related to the patient by blood or adoption, and who is available within a reasonable period of time for that consultation.

(C) If an appropriate individual or class of individuals entitled to decide under division (B) of this section whether or not to consent to the withholding or withdrawal of life-sustaining treatment for a patient is not available within a reasonable period of time for the consultation and competent to so decide, or declines to so decide, then the next priority individual or class of individuals specified in that division is authorized to make the decision. However, an equal division in a priority class of individuals under that division does not authorize the next class of individuals specified in that division to make the decision. If an equal division in a priority class of individuals under that division occurs, no written consent to the withholding or withdrawal of life-sustaining treatment from the patient can be given pursuant to this section.

(D)(1) A decision to consent pursuant to this section to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment for a patient shall be made in good faith.

(2) Except as provided in division (D)(4) of this section, if the patient previously expressed an intention with respect to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment should the patient subsequently be in a terminal condition or in a permanently unconscious state, whichever applies, and no longer able to make informed decisions regarding the administration of life-sustaining treatment, a consent given pursuant to this section shall be valid only if it is consistent with that previously expressed intention.

(3) Except as provided in division (D)(4) of this section, if the patient did not previously express an intention with respect to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment should the patient subsequently be in a terminal condition or in a permanently unconscious state, whichever applies, and no longer able to make informed decisions regarding the administration of life-sustaining treatment, a consent given pursuant to this section shall be valid only if it is consistent with the type of informed consent decision that the patient would have made if the patient previously had expressed an intention with respect to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment should the patient subsequently be in a terminal condition or in a permanently unconscious state, whichever applies, and no longer able to make informed decisions regarding the administration of life-sustaining treatment, as inferred from the lifestyle and character of the patient, and from any other evidence of the desires of the patient, prior to the patient's becoming no longer able to make informed decisions regarding the administration of life-sustaining treatment. The Rules of Evidence shall not be binding for purposes of this division.

(4)(a) The attending physician of the patient, and other health care personnel acting under the direction of the attending physician, who do not have actual knowledge of a previously expressed intention as described in division (D)(2) of this section or who do not have actual knowledge that the patient would have made a different type of informed consent decision under the circumstances described in division (D)(3) of this section, may rely on a consent given in accordance with this section unless a probate court decides differently under division (E) of this section.

(b) The immunity conferred by division (C)(1) of section 2133.11 of the Revised Code is not forfeited by an individual who gives a consent to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment for a patient under division (B) of this section if the individual gives the consent in good faith and without actual knowledge, at the time of giving the consent, of either a contrary previously expressed intention of the patient, or a previously expressed intention of the patient, as described in division (D)(2) of this section, that is revealed to the individual subsequent to the time of giving the consent.

(E)(1) Within forty-eight hours after a priority individual or class of individuals gives a consent pursuant to this section to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment and communicates the consent to the patient's attending physician, any individual described in divisions (B)(1) to (5) of this section who objects to the application of this section to the patient shall advise the attending physician of the grounds for the objection. If an objection is so communicated to the attending physician, then, within two business days after that communication, the objecting individual shall file a complaint against the priority individual or class of individuals, the patient's attending physician, and the consulting physician associated with the determination that the patient is in a terminal condition or that the patient currently is and for at least the immediately preceding twelve months has been in a permanently unconscious state, in the probate court of the county in which the patient is located for the issuance of an order reversing the consent of the priority individual or class of individuals. If the objecting individual fails to so file a complaint, the individual's objections shall be considered to be void.
A probate court in which a complaint is filed in accordance with this division shall conduct a hearing on the complaint after a copy of the complaint and a notice of the hearing have been served upon the defendants. The clerk of the probate court in which the complaint is filed shall cause the complaint and the notice of the hearing to be so served in accordance with the Rules of Civil Procedure, which service shall be made, if possible, within three days after the filing of the complaint. The hearing shall be conducted at the earliest possible time, but no later than the third business day after the service has been completed. Immediately following the hearing, the court shall enter on its journal its determination whether the decision of the priority individual or class of individuals to consent to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment in connection with the patient will be confirmed or reversed.

(2) If the decision of the priority individual or class of individuals was to consent to the use or continuation of life-sustaining treatment in connection with the patient, the court only may reverse that consent if the objecting individual establishes, by clear and convincing evidence and, if applicable, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, one or more of the following:

(a) The patient is able to make informed decisions regarding the administration of life-sustaining
treatment.

(b) The patient has a legally effective declaration that addresses the patient's intent should the patient be determined to be in a terminal condition or in a permanently unconscious state, whichever applies, or a legally effective durable power of attorney for health care.

(c) The decision to use or continue life-sustaining treatment is not consistent with the previously expressed intention of the patient as described in division (D)(2) of this section.

(d) The decision to use or continue life-sustaining treatment is not consistent with the type of informed consent decision that the patient would have made if the patient previously had expressed an intention with respect to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment should the patient subsequently be in a terminal condition or in a permanently unconscious state, whichever applies, and no longer able to make informed decisions regarding the administration of life-sustaining treatment as described in division (D)(3) of this section.

(e) The decision of the priority individual or class of individuals was not made after consultation with the patient's attending physician and after receipt of information from the patient's attending physician or a consulting physician that is sufficient to satisfy the requirements of informed consent.

(f) The priority individual, or any member of the priority class of individuals, who made the decision to use or continue life-sustaining treatment was not of sound mind or did not voluntarily make the decision.

(g) If the decision of a priority class of individuals under division (B)(3) of this section is involved, the patient's attending physician did not make a good faith effort, and use reasonable diligence, to notify the patient's adult children who were available within a reasonable period of time for consultation as described in division (A)(1)(c) of this section.

(h) The decision of the priority individual or class of individuals otherwise was made in a manner that does not comply with this section.

(3) If the decision of the priority individual or class of individuals was to consent to the withholding or withdrawal of life-sustaining treatment in connection with the patient, the court only may reverse that consent if the objecting individual establishes, by a preponderance of the evidence and, if applicable, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, one or more of the following:

(a) The patient is not in a terminal condition, the patient is not in a permanently unconscious state, or the patient has not been in a permanently unconscious state for at least the immediately preceding twelve months.

(b) The patient is able to make informed decisions regarding the administration of life-sustaining treatment.

(c) There is a reasonable possibility that the patient will regain the capacity to make informed decisions regarding the administration of life-sustaining treatment.

(d) The patient has a legally effective declaration that addresses the patient's intent should the patient be determined to be in a terminal condition or in a permanently unconscious state, whichever applies, or a legally effective durable power of attorney for health care.

(e) The decision to withhold or withdraw life-sustaining treatment is not consistent with the previously expressed intention of the patient as described in division (D)(2) of this section.

(f) The decision to withhold or withdraw life-sustaining treatment is not consistent with the type of informed consent decision that the patient would have made if the patient previously had expressed an intention with respect to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment should the patient subsequently be in a terminal condition or in a permanently unconscious state, whichever applies, and no longer able to make informed decisions regarding the administration of life-sustaining treatment as described in division (D)(3) of this section.

(g) The decision of the priority individual or class of individuals was not made after consultation with the patient's attending physician and after receipt of information from the patient's attending physician or a consulting physician that is sufficient to satisfy the requirements of informed consent.

(h) The priority individual, or any member of the priority class of individuals, who made the decision to withhold or withdraw life-sustaining treatment was not of sound mind or did not voluntarily make the decision.

(i) If the decision of a priority class of individuals under division (B)(3) of this section is involved, the patient's attending physician did not make a good faith effort, and use reasonable diligence, to notify the patient's adult children who were available within a reasonable period of time for consultation as described in division (A)(1)(c) of this section.

(j) The decision of the priority individual or class of individuals otherwise was made in a manner that does not comply with this section.

(4) Notwithstanding any contrary provision of the Revised Code or of the Rules of Civil Procedure, the state and persons other than individuals described in divisions (B)(1) to (5) of this section are prohibited from filing a complaint under division (E) of this section and from joining or being joined as parties to a hearing conducted under division (E) of this section, including joining by way of intervention.

(F) A valid consent given in accordance with this section supersedes any general consent to treatment form signed by or on behalf of the patient prior to, upon, or after the patient's admission to a health care facility to the extent there is a conflict between the consent and the form.

(G) Life-sustaining treatment shall not be withheld or withdrawn from a patient pursuant to a consent given in accordance with this section if the patient is pregnant and if the withholding or withdrawal of the treatment would terminate the pregnancy, unless the patient's attending physician and one other physician who has examined the patient determine, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that the fetus would not be born alive.

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OKLAHOMA

Okla. Stat. Ann. tit. 30, § 3-118 (West)
§ 3-118. Duties and powers of guardian or limited guardian
`
A. A guardian or limited guardian of the person of an incapacitated or partially incapacitated person is responsible for the care or control of the ward pursuant to the provisions of the Oklahoma Guardianship and Conservatorship Act,1 and the orders of the court, and the guardianship plan approved by the court and shall perform diligently and in good faith any specific duties and powers assigned by the court.

B. 1. A guardian or limited guardian of the person of an incapacitated or partially incapacitated person shall:

  1. become or remain sufficiently acquainted with the ward and maintain sufficient contact with the ward to know of the capacities, limitations, needs, opportunities, and physical and mental health of the ward;
  2. assure that the ward has a place of abode in the least restrictive, most normal setting consistent with the requirements for his health or safety; and
  3. provide any required consents or approvals on behalf of the ward as authorized by the court.

2. A guardian or limited guardian of the person, if consistent with the terms of an order of the court, may:

  1. if no guardian of the property or conservator for the estate of the ward has been appointed, institute proceedings, including administrative proceedings, or take other appropriate action to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward; and
  2. 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.
  3. If satisfied that the incapacity or partial incapacity of the ward has ceased, the guardian or limited guardian shall file a petition requesting a determination on the restoration to capacity of the ward and the termination of the guardianship.

Okla. Stat. Ann. tit. 63, § 3080.3 (West)
§ 3080.3. Presumption of hydration and nutrition sufficient to sustain life

It shall be presumed that every incompetent patient has directed his health care providers to provide him with hydration and nutrition to a degree that is sufficient to sustain life.

Okla. Stat. Ann. tit. 63, § 3080.4 (West)
§ 3080.4. Presumption of nutrition and hydration, when inapplicable

A. The presumption pursuant to Section 3080.3 of this title shall not apply if:

  1. The attending physician of the incompetent patient knows that the patient, when competent, decided on the basis of information sufficient to constitute informed consent that artificially administered hydration or artificially administered nutrition should be withheld or withdrawn from him;
  2. A court finds by clear and convincing evidence that the patient, when competent, decided on the basis of information sufficient to constitute informed consent that artificially administered hydration or artificially administered nutrition should be withheld or withdrawn from him;
  3. An advance directive has been executed pursuant to the Oklahoma Natural Death Act1 specifically authorizing the withholding or withdrawal of nutrition and/or hydration;
  4. An advance directive has been executed pursuant to the Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act2 specifically authorizing the withholding or withdrawal of nutrition and/or hydration;
  5. An advance directive for health care has been executed pursuant to the Oklahoma Advance Directive Act3 specifically authorizing the withholding or withdrawal of nutrition and/or hydration;
  6. In the reasonable medical judgment of the incompetent patient's attending physician and a second consulting physician, artificially administered hydration or artificially administered nutrition will itself cause severe, intractable, and long-lasting pain to the incompetent patient or such nutrition or hydration is not medically possible; or
  7. In the reasonable medical judgment of the incompetent patient's attending physician and a second consulting physician:
    1. the incompetent patient is chronically and irreversibly incompetent,
    2. the incompetent patient is in the final stage of a terminal illness or injury, and
    3. the death of the incompetent patient is imminent.

B. No advance directive shall be deemed to satisfy the provisions of subsection A of this section unless the advance directive complies with the requirements of Section 3101.4 or Section 3101.14 of this title.

C. Hydration or nutrition may not be withheld or withdrawn pursuant to paragraph 7 of subsection A of this section if this would result in death from dehydration or starvation rather than from the underlying terminal illness or injury.

Okla. Stat. Ann. tit. 63, § 3080.5 (West)
§ 3080.5. Withdrawing treatment or care

A. Notwithstanding any other provision of law, no person and no health care facility shall be required to participate in or provide facilities for medical treatment or care of an incompetent patient who is to die as the result of dehydration or starvation.

B. The law of this state shall not be construed to permit withdrawal or withholding of medical treatment, care, nutrition or hydration from an incompetent patient because of the mental disability or mental status of that patient.

C. No guardian, public or private agency, court, or any other person shall have the authority to make a decision on behalf of an incompetent patient to withhold or withdraw hydration or nutrition from said patient except in the circumstances and under the conditions specifically provided for in Section 3080.4 of this title.

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OREGON

Or. Rev. Stat. Ann. § 125.315 (West)
125.315. Duties and powers of guardian

  1. A guardian has the following powers and duties:
    1. Except to the extent of any limitation under the order of appointment, the guardian has custody of the protected person and may establish the protected person's place of abode within or without this state.
    2. The guardian shall provide for the care, comfort and maintenance of the protected person and, whenever appropriate, shall arrange for training and education of the protected person. Without regard to custodial rights of the protected person, the guardian shall take reasonable care of the person's clothing, furniture and other personal effects unless a conservator has been appointed for the protected person.
    3. 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 person resulting from the negligence or acts of third persons.
    4. The guardian may:
      1. Make advance funeral and burial arrangements;
      2. Subject to the provisions of ORS 97.130, control the disposition of the remains of the protected person; and
      3. Subject to the provisions of ORS 97.965, make an anatomical gift of all or any part of the body of the protected person.
    5. The guardian of a minor has the powers and responsibilities of a parent who has legal custody of a child, except that the guardian has no obligation to support the minor beyond the support that can be provided from the estate of the minor, and the guardian is not liable for the torts of the minor. The guardian may consent to the marriage or adoption of a protected person who is a minor.
    6. Subject to the provisions of ORS 125.320 (2), the guardian may receive money and personal property deliverable to the protected person and apply the money and property for support, care and education of the protected person. The guardian shall exercise care to conserve any excess for the protected person's needs.
  2. If a conservator has been appointed for the protected person, the guardian may file a motion with the court seeking an order of the court on the duties of the conservator relating to payment of support for the protected person.
  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.

Or. Rev. Stat. Ann. § 127.580 (West)
127.580. Exceptions to the presumption of consent to artificially administered nutrition and hydration

  1. It shall be presumed that every person who is temporarily or permanently incapable has consented to artificially administered nutrition and hydration, other than hyperalimentation, that are necessary to sustain life except in one or more of the following circumstances:
  2. (a) The person while a capable adult clearly and specifically stated that the person would have refused artificially administered nutrition and hydration.

    (b) Administration of such nutrition and hydration is not medically feasible or would itself cause severe, intractable or long-lasting pain.

    (c) The person has an appointed health care representative who has been given authority to make decisions on the use, maintenance, withholding or withdrawing of artificially administered nutrition and hydration.

    (d) The person does not have an appointed health care representative or an advance directive that clearly states that the person did not want artificially administered nutrition and hydration, and the person is permanently unconscious.

    (e) The person does not have an appointed health care representative or an advance directive that clearly states that the person did not want artificially administered nutrition and hydration, the person is incapable, and the person has a terminal condition.

    (f) The person has a progressive illness that will be fatal and is in an advanced stage, the person is consistently and permanently unable to communicate by any means, swallow food and water safely, care for the person's self and recognize the person's family and other people, and it is very unlikely that the person's condition will substantially improve.

(2) If a person does not have an appointed health care representative or an advance directive that clearly states that the person did not want artificially administered nutrition and hydration, but the presumption established by this section has been overcome under the provisions of subsection (1)(a), (b), (d), (e) or (f) of this section, artificially administered nutrition and hydration may be withheld or withdrawn under the provisions of ORS 127.635 (2), (3) and (4).

(3) The medical conditions specified in subsection (1)(b), (d), (e) and (f) of this section must be medically confirmed to overcome the presumption established by subsection (1) of this section.

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PENNSYLVANIA

20 Pa. Cons. Stat. Ann. § 5502 (West)
§ 5502. Purpose of chapter

Recognizing that every individual has unique needs and differing abilities, it is the purpose of this chapter to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources and developing or regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative; and recognizing further that when guardianship services are necessary, it is important to facilitate the finding of suitable individuals or entities willing to serve as guardians.

20 Pa. Cons. Stat. Ann. § 5521 (West)
§ 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. Expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extent. Where appropriate, the guardian shall assure and participate in the development of a plan of supportive services to meet the person's needs which explains how services will be obtained. The guardian shall also encourage the incapacitated person to participate to the maximum extent of his abilities in all decisions which affect him, to act on his own behalf whenever he is able to do so and to develop or regain, to the maximum extent possible, his capacity to manage his personal affairs.

(b) Duty of guardian of the estate.--The provisions concerning the powers, duties and liabilities of guardians of incapacitated persons' estates shall be the same as those set forth in the following provisions of this title relating to personal representatives of decedents' estates and guardians of minors' estates:
Section 3313 (relating to liability insurance).
Section 3314 (relating to continuation of business).
Section 3315 (relating to incorporation of estate's business).
Section 3317 (relating to claims against co-fiduciary).
Section 3318 (relating to revival of judgments against personal representative).
Section 3319 (relating to power of attorney; delegation of power over subscription rights and fractional shares; authorized delegations).
Section 3320 (relating to voting stock by proxy).
Section 3321 (relating to nominee registration; corporate fiduciary as agent; deposit of securities in a clearing corporation; book-entry securities).
Section 3322 (relating to acceptance of deed in lieu of foreclosure).
Section 3323 (relating to compromise of controversies).
Section 3324 (relating to death or incapacity of fiduciary).
Section 3327 (relating to surviving or remaining personal representatives).
Section 3328 (relating to disagreement of personal representatives).
Section 3331 (relating to liability of personal representative on contracts).
Section 3332 (relating to inherent powers and duties).
Section 3355 (relating to restraint of sale).
Section 3356 (relating to purchase by personal representative).
Section 3359 (relating to record of proceedings; county where real estate lies).
Section 3360 (relating to contracts, inadequacy of consideration or better offer; brokers' commissions).
Section 3372 (relating to substitution of personal representative in pending action or proceedings).
Section 3374 (relating to death or removal of fiduciary).
Section 3390 (relating to specific performance of contracts).
Section 5141 (relating to possession of real and personal property).
Section 5142 (relating to inventory).
Section 5143 (relating to abandonment of property).
Section 5145 (relating to investments).
Section 5146 (relating to guardian named in conveyance).
Section 5147 (relating to proceedings against guardian).
Section 5151 (relating to power to sell personal property).
Section 5154 (relating to title of purchaser).
Section 5155 (relating to order of court).
(c) Reports.--

  1. Each guardian of an incapacitated person shall file with the court appointing him a report, at least once within the first 12 months of his appointment and at least annually thereafter, attesting to the following:
    1. Guardian of the estate:
      1. current principal and how it is invested;
      2. current income;
      3. expenditures of principal and income since the last report; and
      4. needs of the incapacitated person for which the guardian has provided since the last report.
    2. Guardian of the person:
      1. current address and type of placement of the incapacitated person;
      2. major medical or mental problems of the incapacitated person;
      3. a brief description of the incapacitated person's living arrangements and the social, medical, psychological and other support services he is receiving;
      4. the opinion of the guardian as to whether the guardianship should continue or be terminated or modified and the reasons therefor; and
      5. number and length of times the guardian visited the incapacitated person in the past year.
  2. Within 60 days of the death of the incapacitated person or an adjudication of capacity and modification of existing orders, the guardian shall file a final report with the court.

(d) Powers and duties only granted by court.--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.
  2. Prohibit the marriage or consent to the divorce of the incapacitated person.
  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.

(e) Knowledge of objection.--In a hearing to determine whether a guardian shall be ordered to consent to a specific act or omission, if the guardian knows or has reason to know of the incapacitated person's objection to the action or omission, whether such objection had been expressed prior or subsequent to the determination of incapacity, the guardian shall report to the court such knowledge or information.

(f) Powers and duties not granted to guardian.--The court may not grant to a guardian powers controlled by other statute, including, but not limited to, the power:

  1. To admit the incapacitated person to an inpatient psychiatric facility or State center for the mentally retarded.
  2. To consent, on behalf of the incapacitated person, to the relinquishment of the person's parental rights.

(g) Criminal and civil immunity.--In the absence of gross negligence, recklessness or intentional misconduct, a unit of local government, nonprofit corporation or guardianship support agency under Subchapter F (relating to guardianship support) appointed as a guardian shall not be criminally liable or civilly liable for damages for performing duties as a guardian of the person, as authorized under this chapter.

20 Pa. Cons. Stat. Ann. § 5460 (West)
§ 5460. Relation of health care agent to court-appointed guardian and other agents

(a) Accountability of health care agent.--If a principal who has executed a health care power of attorney is later adjudicated an incapacitated person and a guardian of the person to make health care decisions is appointed by a court, the health care agent is accountable to the guardian as well as to the principal. The guardian shall have the same power to revoke or amend the appointment of a health care agent that the principal would have if the principal were not incapacitated but may not revoke or amend other instructions in an advance health directive absent judicial authorization.

(b) Nomination of guardian of person.--In a health care power of attorney, a principal may nominate a guardian of the person for the principal for consideration by a court if incapacity proceedings for the principal's person are thereafter commenced. If a court determines that the appointment of a guardian is necessary, the court shall appoint a guardian in accordance with the principal's most recent nomination except for good cause or disqualification.

(c) Reasonable expenses.--In fulfilling the health care needs for a principal, a health care agent may incur reasonable expenses, including the purchase of health care insurance, to the extent the expenses are not otherwise covered by insurance or other similar benefits. Payment for the expenses or reimbursement to the health care agent for the expenses from the principal's funds shall be made by either of the following:

  1. A guardian of the estate of the principal.
  2. An agent acting on behalf of the principal under a power of attorney if the agent has the power to disburse the funds of the principal.

20 Pa. Cons. Stat. Ann. § 5456 (West)
§ 5456. Authority of health care agent

(a) Extent of authority.--Except as expressly provided otherwise in a health care power of attorney and subject to subsection (b) and section 5460 (relating to relation of health care agent to court-appointed guardian and other agents), a health care agent shall have the authority to make any health care decision and to exercise any right and power regarding the principal's care, custody and health care treatment that the principal could have made and exercised. The health care agent's authority may extend beyond the principal's death to make anatomical gifts, dispose of the remains and consent to autopsies.

(b) Life-sustaining treatment decisions.--A life-sustaining treatment decision made by a health care agent is subject to this section and sections 5429 (relating to pregnancy), 5454 (relating to when health care power of attorney operative) and 5462(a) (relating to duties of attending physician and health care provider).

(c) Health care decisions.--

  1. The health care agent shall gather information on the principal's prognosis and acceptable medical alternatives regarding diagnosis, treatments and supportive care.
  2. In the case of procedures for which informed consent is required under section 504 of the act of March 20, 2002 (P.L. 154, No. 13),1 known as the Medical Care Availability and Reduction of Error (Mcare) Act, the information shall include the information required to be disclosed under that act.
  3. In the case of health care decisions regarding end of life of a patient with an end-stage medical condition, the information shall distinguish between curative alternatives, palliative alternatives and alternatives which will merely serve to prolong the process of dying. The information shall also distinguish between the principal's end-stage medical condition and any other concurrent disease, illness or physical, mental, cognitive or intellectual condition that predated the principal's end-stage medical condition.
  4. After consultation with health care providers and consideration of the information obtained in accordance with paragraphs (1), (2) and (3), the health care agent shall make health care decisions in accordance with the health care agent's understanding and interpretation of the instructions given by the principal at a time when the principal had the capacity to understand, make and communicate health care decisions. Instructions include an advance health care directive made by the principal and any clear written or verbal directions that cover the situation presented.
  5. (i) In the absence of instruction, the health care agent shall make health care decisions that conform to the health care agent's assessment of the principal's preferences and values, including religious and moral beliefs.

    (ii) If the health care agent does not know enough about the principal's instructions, preferences and values to decide accordingly, the health care agent shall take into account what the agent knows of the principal's instructions, preferences and values, including religious and moral beliefs, and the health care agent's assessment of the principal's best interests, taking into consideration the following goals and considerations:
    1. The preservation of life.
    2. The relief from suffering.
    3. The preservation or restoration of functioning, taking into account any concurrent disease, illness or physical, mental, cognitive or intellectual condition that may have predated the principal's end-stage medical condition.
    (iii) (A) In the absence of a specific, written authorization or direction by a principal to withhold or withdraw nutrition and hydration administered by gastric tube or intravenously or by other artificial or invasive means, a health care agent shall presume that the principal would not want nutrition and hydration withheld or withdrawn.
    (B) The presumption may be overcome by previously clearly expressed wishes of the principal to the contrary. In the absence of such clearly expressed wishes, the presumption may be overcome if the health care agent considers the values and preferences of the principal and assesses the factors set forth in subparagraphs (i) and (ii) and determines it is clear that the principal would not wish for artificial nutrition and hydration to be initiated or continued.
  6. The Department of Health shall ensure as part of the licensure process that health care providers under its jurisdiction have policies and procedures in place to implement this subsection.

(d) Health care information.--
(1) Unless specifically provided otherwise in a health care power of attorney, a health care agent has the same rights and limitations as the principal to request, examine, copy and consent or refuse to consent to the disclosure of medical or other health care information.
(2) Disclosure of medical or other health care information to a health care agent does not constitute a waiver of any evidentiary privilege or of a right to assert confidentiality. A health care provider that discloses such information to a health care agent in good faith shall not be liable for the disclosure. A health care agent may not disclose health care information regarding the principal except as is reasonably necessary to perform the agent's obligations to the principal or as otherwise required by law.

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RHODE ISLAND

R.I. Gen. Laws Ann. § 33-15-1 (West)
§ 33-15-1. Legislative intent

The legislature finds that adjudicating a person totally incapacitated and in need of a guardian deprives that person of all his or her civil and legal rights and that this deprivation may be unnecessary. The legislature further finds that it is desirable to make available, the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs. Recognizing that every individual has unique needs and differing abilities, the legislature declares that it is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in his or her own behalf. This chapter shall be liberally construed to accomplish this purpose.

R.I. Gen. Laws Ann. § 33-15-29 (West)
§ 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. Every limited guardian or guardian with authority to make decisions with respect to the estate of his or her ward shall manage the estate frugally, without waste, and shall apply the income and profits from the estate, or so much thereof as may be necessary and proper, to the support and maintenance of the ward and his or her household and family.

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SOUTH CAROLINA

S.C. Code Ann. § 62-5-312
§ 62-5-312. General powers and duties of guardian.

(a) A guardian of an incapacitated person has the same powers, rights, and duties respecting his ward that a parent has respecting his unemancipated minor child except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. 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 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.
  2. If entitled to custody of his ward he shall make provision for the care, comfort, and maintenance of his ward and, whenever appropriate, arrange for his training and education. Without regard to custodial rights of the ward's person, he shall take reasonable care of his ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of his ward is in need of protection.
  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.
  4. If no conservator for the estate of the ward has been appointed or if the guardian is also conservator, he may:
    1. institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform his duty;
    2. receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but, he may not use funds from his ward's estate for room and board or services which he, his spouse, parent, or child have furnished the ward unless a charge for the services and/or room and board is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs.
  5. A guardian is required to report the condition of his ward and of the estate which has been subject to his possession or control, as required by the court or court rule, but at least on an annual basis.
  6. If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this Code, and the guardian must account to the conservator for funds expended.

    (b) Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for his services and for room and board furnished to the ward as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

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SOUTH DAKOTA

S.D. Codified Laws § 29A-5-402
29A-5-402. Responsibility of guardian of protected person

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. A guardian shall maintain sufficient contact with the protected person to know of the protected person's capabilities, limitations, needs, and opportunities.
A guardian shall exercise authority only to the extent necessitated by the protected person's limitations, and if feasible, shall encourage the protected person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence.

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TENNESSEE

Tenn Code Ann. §34-7-104

4-7-104. Powers and duties of district public guardian.

(a)  The duties and powers of the district public guardian are as follows:

  1. To serve as conservator for disabled persons who are sixty (60) years of age or older who have no family members or other person, bank or corporation willing and able to serve as conservator;
  2. The district public guardian does not have any power or authority beyond that set forth for a conservator in chapters 1, 2 and 3 of this title; and
  3. To provide for the least intrusive alternatives, the district public guardian may accept power of attorney.

(b)  The district public guardian may employ sufficient staff to carry out the duties of the office.

(c)  The district public guardian may delegate to staff members the powers and duties of the office of district public guardian except as otherwise limited by law. The district public guardian retains ultimate responsibility for the discharge of required duties and responsibilities.

(d) 

  1. A district public guardian may accept the services of volunteer persons and organizations, and raise money to supplement operating costs.
  2. The commission on aging, in consultation with the departments of human services and health, may develop and implement a statewide program to recruit, train, assign, supervise and evaluate volunteer persons to assist district public guardians in maintaining the independence and dignity of their elderly wards. In developing and implementing this statewide program, the commission on aging shall solicit input and resources from interested organizations, including, but not necessarily limited to, community senior citizen centers, churches and synagogues having senior projects and programs under the auspices of the American Association of Retired Persons. Each volunteer shall possess demonstrated personal characteristics of honesty, integrity, compassion and caring for the elderly. The background of each volunteer shall be subject to appropriate inquiry and investigation. Volunteers shall receive no salary but may be reimbursed by the commission on aging for travel and other expenses incurred directly as a result of the performance of volunteer services.

(e)  If the disabled person qualifies for SSI benefits, no charge will be made against the disabled person's estate for court costs or fees of any kind. Under no circumstances may court costs be assessed to the public guardianship program.

(f)  If the disabled person does not qualify for SSI benefits, costs and compensation of the district public guardian shall be determined under §§ 34-1-112 and 34-1-114.

(g)

  1. All funds received on behalf of a disabled person by the district public guardianship program shall be handled under a computerized accounting package approved by the commission on aging, and shall be audited annually by the state.
  2. All other assets received by the district public guardian shall be handled in accordance with state laws, rules and court regulation or regulations as to disposition of property and record keeping.
  3. Upon termination of the conservatorship, all assets remaining in the estate shall be paid over to the disabled person or to the disabled person's legal representative.

(h)  While performing conservatorship duties, the district public conservator shall continue to seek a family member, friend, other person, bank or corporation qualified and willing to serve as conservator. If such an individual, bank or corporation is located, the district public conservator shall submit a motion to the court for appointment of the qualified and willing successor conservator.

(i)  A person appointed successor district public guardian immediately succeeds to all rights, duties, responsibilities and powers of the preceding district public guardian.

(j)  When the position of district public guardian is vacant, subordinate personnel employed under subsection (c) shall continue to act as if the position of district public guardian were filled.

(k)  A district public guardian shall be required to post bond in individual cases in accordance with § 34-1-105. The commission on aging shall arrange out of the program budget to purchase a statewide bond that shall ensure the fiduciary responsibilities of the district public guardian in all court appointed cases.

(l)  The district public guardian shall adhere to all state laws that are applicable to conservatorship.

(m)  To ensure adequate services for each disabled person, the district public guardian shall submit certification to the court when maximum caseload has been attained, and the court shall not assign additional disabled persons while maximum caseload is maintained. Maximum caseload shall be certified by the commission on aging upon review of verifying documentation submitted by the district public guardian and the grantee agency director. The district public guardian must notify the court when caseload has been reduced to less than maximum load.

[Acts 1986, ch. 895, § 4; 1987, ch. 333, §§ 2-8; 1994, ch. 679, §§ 3-16; 1997, ch. 327, § 1.]   
Disclaimer: These codes may not be the most recent version. Tennessee may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

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TEXAS

Tex. Prob. Code Ann. § 602 (West)
§ 602. Policy; Purpose of Guardianship

A court may appoint a guardian with full authority over an incapacitated person or may grant a guardian limited authority over an incapacitated person as indicated by the incapacitated person's actual mental or physical limitations and only as necessary to promote and protect the well-being of the person. If the person is not a minor, the court may not use age as the sole factor in determining whether to appoint a guardian for the person. In creating a guardianship that gives a guardian limited power or authority over an incapacitated person, the court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person.

Tex. Prob. Code Ann. § 767 (West)
§ 767. Powers and Duties of Guardians of the Person

(a) The guardian of the person is entitled to take charge of the person of the ward, and the duties of the guardian correspond with the rights of the guardian. A guardian of the person has:

  1. the right to have physical possession of the ward and to establish the ward's legal domicile;
  2. the duty to provide care, supervision, and protection for the ward;
  3. the duty to provide the ward with clothing, food, medical care, and shelter;
  4. the power to consent to medical, psychiatric, and surgical treatment other than the in-patient psychiatric commitment of the ward; and
  5. on application to and order of the court, the power to establish a trust in accordance with 42 U.S.C. Section 1396p(d)(4)(B), as amended, and direct that the income of the ward as defined by that section be paid directly to the trust, solely for the purpose of the ward's eligibility for medical assistance under Chapter 32, Human Resources Code.

(b) Notwithstanding Subsection (a)(4) of this section, 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 inpatient mental health facility for a preliminary examination in accordance with Subchapters A and C, Chapter 573, Health and Safety Code.

Tex. Health & Safety Code Ann. § 166.039 (West)
§ 166.039. Procedure When Person Has Not Executed or Issued a Directive and is Incompetent or Incapable of Communication

(a) If an adult qualified patient has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication, the attending physician and the patient's legal guardian or an agent under a medical power of attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from the patient.
(b) If the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one person, if available, from one of the following categories, in the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment:

  1. the patient's spouse;
  2. the patient's reasonably available adult children;
  3. the patient's parents; or
  4. the patient's nearest living relative.
    (c) A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if known.
    (d) A treatment decision made under Subsection (b) must be documented in the patient's medical record and signed by the attending physician.
    (e) If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b) must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health care facility in which the person is a patient.
    (f) The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient does not want a treatment decision to be made to withhold or withdraw life-sustaining treatment.
    (g) A person listed in Subsection (b) who wishes to challenge a treatment decision made under this section must apply for temporary guardianship under Section 875, Texas Probate Code. The court may waive applicable fees in that proceeding.

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UTAH

Utah Code Ann. § 75-5-312 (West)
§ 75-5-312. General powers and duties of guardian--Penalties

  1. A guardian of an incapacitated person has only the powers, rights, and duties respecting the ward granted in the order of appointment under Section 75-5-304.
  2. Absent a specific limitation on the guardian's power in the order of appointment, the guardian has the same powers, rights, and duties respecting the ward that a parent has respecting the parent's unemancipated minor child except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. 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 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, the guardian is entitled to custody of the person of the ward and may establish the ward's place of abode within or without this state.
    2. If entitled to custody of the ward the guardian shall provide for the care, comfort, and maintenance of the ward and, whenever appropriate, arrange for the ward's training and education. Without regard to custodial rights of the ward's person, the guardian shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of the ward is in need of protection.
    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.
    4. If no conservator for the estate of the ward has been appointed, the guardian may:
      1. institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform that duty; or
      2. receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but the guardian may not use funds from the ward's estate for room and board which the guardian, the guardian's spouse, parent, or child have furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one adult relative in the nearest degree of kinship to the ward in which there is an adult. The guardian must exercise care to conserve any excess for the ward's needs.
    5. (i) A guardian is required to report the condition of the ward and of the estate which has been subject to the guardian's possession or control, as required by the court or court rule.

      (ii) The guardian shall, for all estates in excess of $50,000, excluding the residence owned by the ward, send a report with a full accounting to the court on an annual basis. For estates less than $50,000, excluding the residence owned by the ward, the guardian shall fill out an informal annual report and mail the report to the court. The report shall include the following: a statement of assets at the beginning and end of the reporting year, income received during the year, disbursements for the support of the ward, and other expenses incurred by the estate. The guardian shall also report the physical conditions of the ward, the place of residence, and a list of others living in the same household. The court may require additional information. The forms for both the informal report for estates under $50,000, excluding the residence owned by the ward, and the full accounting report for larger estates shall be approved by the Judicial Council. This annual report shall be examined and approved by the court. If the ward's income is limited to a federal or state program requiring an annual accounting report, a copy of that report may be submitted to the court in lieu of the required annual report.

      (iii) Corporate fiduciaries are not required to petition the court, but shall submit their internal report annually to the court. The report shall be examined and approved by the court.

      (iv) The guardian shall also render an annual accounting of the status of the person to the court which shall be included in the petition or the informal annual report as required under Subsection (2)(e). If a fee is paid for an accounting of an estate, no fee shall be charged for an accounting of the status of a person.

      (v) If a guardian:
      1. makes a substantial misstatement on filings of annual reports;
      2. is guilty of gross impropriety in handling the property of the ward; or
      3. willfully fails to file the report required by this subsection, after receiving written notice from the court of the failure to file and after a grace period of two months has elapsed, the court may impose a penalty in an amount not to exceed $5,000. The court may also order restitution of funds misappropriated from the estate of a ward. The penalty shall be paid by the guardian and may not be paid by the estate

      (vi) These provisions and penalties governing annual reports do not apply if the guardian is the parent of the ward.
    6. If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this code; and the guardian must account to the conservator for funds expended.
  3. Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for services and for room and board furnished to the ward as agreed upon between the guardian and the conservator, if the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

Utah Code Ann. § 75-2a-107 (West)
§ 75-2a-107. Advance health care directive--Appointment of agent--Powers of agent--Health care directions

  1. (a) An adult may make an advance health care directive in which the adult may:
    1. appoint a health care agent or choose not to appoint a health care agent;
    2. give directions for the care of the adult after the adult loses health care decision making capacity;
    3. choose not to give directions;
    4. state conditions that must be met before life sustaining treatment may be withheld or withdrawn;
    5. authorize an agent to consent to the adult's participation in medical research;
    6. nominate a guardian;
    7. authorize an agent to consent to organ donation;
    8. expand or limit the powers of a health care agent; and
    9. designate the agent's access to the adult's medical records.

    (b) An advance health care directive may be oral or written.
    (c) An advance health care directive shall be witnessed by a disinterested adult. The witness may not be:
    1. the person who signed the directive on behalf of the declarant;
    2. related to the declarant by blood or marriage;
    3. entitled to any portion of the declarant's estate according to the laws of intestate succession of this state or under any will or codicil of the declarant;
    4. the beneficiary of any of the following that are held, owned, made, or established by, or on behalf of, the declarant:
      1. a life insurance policy;
      2. a trust;
      3. a qualified plan;
      4. a pay on death account; or
      5. a transfer on death deed;
    5. entitled to benefit financially upon the death of the declarant;
    6. entitled to a right to, or interest in, real or personal property upon the death of the declarant;
    7. directly financially responsible for the declarant's medical care;
    8. a health care provider who is:
      1. providing care to the declarant; or
      2. an administrator at a health care facility in which the declarant is receiving care; or
    9. the appointed agent.

    (d) The witness to an oral advance health care directive shall state the circumstances under which the directive was made.
  2. An agent appointed under the provisions of this section may not be a health care provider for the declarant, or an owner, operator, or employee of the health care facility at which the declarant is receiving care unless the agent is related to the declarant by blood, marriage, or adoption.

Utah Code Ann. § 75-2a-108 (West)
§ 75-2a-108. Default surrogates

  1. (a) Any member of the class described in Subsection (1)(b) may act as an adult's surrogate if:
    1. (A) the adult has not appointed an agent;
      (B) an appointed agent is not reasonably available; or
      (C) a guardian has not been appointed; and
    2. the member of the class described in Subsection (1)(b) is:
      (A) over 18 years of age;
      (B) has health care decision making capacity;
      (C) is reasonably available; and
      (D) has not been disqualified by the adult or a court.

    (b) Except as provided in Subsection (1)(a), and subject to Subsection (1)(c), the following classes of the adult's family, in descending order of priority, may act as the adult's surrogate:
    1. the adult's spouse, unless the adult is divorced or legally separated; or
    2. the following family members:
      (A) a child;
      (B) a parent;
      (C) a sibling;
      (D) a grandchild; or
      (E) a grandparent.
    (c) A person described in Subsection (1)(b), may not direct an adult's care if a person of a higher priority class is able and willing to act as a surrogate for the adult.
    (d) A court may disqualify a person described in Subsection (1)(b) from acting as a surrogate if the court finds that the person has acted in a manner that is inconsistent with the position of trust in which a surrogate is placed.
  2. If the family members designated in Subsection (1)(b) are not reasonably available to act as a surrogate, a person who is 18 years of age or older, other than those designated in Subsection (1) may act as a surrogate if the person:
    (a) has health care decision making capacity;
    (b) has exhibited special care and concern for the patient;
    (c) knows the patient and the patient's personal values; and
    (d) is reasonably available to act as a surrogate.
  3. The surrogate shall communicate the surrogate's assumption of authority as promptly as practicable to the members of a class who:
    (a) have an equal or higher priority and are not acting as surrogate; and
    (b) can be readily contacted.
  4. A health care provider shall comply with the decision of a majority of the members of the highest priority class who have communicated their views to the provider if:
    (a) more than one member of the highest priority class assumes authority to act as default surrogate;
    (b) the members of the class do not agree on a health care decision; and
    (c) the health care provider is informed of the disagreement among the members of the class.
  5. (a) An adult may at any time disqualify a default surrogate, including a member of the adult's family, from acting as the adult's surrogate by:
    (i) a signed writing;
    (ii) personally informing a witness of the disqualification; or
    (iii) informing the surrogate of the disqualification.
    (b) Disqualification of a surrogate is effective even if the adult has been found to lack health care decision making capacity.
  6. If reasonable doubt exists regarding the status of an adult claiming the right to act as a default surrogate, the health care provider may:
    (a) require the person to provide a sworn statement giving facts and circumstances reasonably sufficient to establish the claimed authority; or
    (b) seek a ruling from the court under Section 75-2a-120.
  7. A health care provider may seek a ruling from a court pursuant to Section 75-2a-120 if the health care provider has evidence that a surrogate is making decisions that are inconsistent with an adult patient's wishes or preferences.

Utah Code Ann. § 75-2a-110 (West)
§ 75-2a-110. Surrogate decision making--Scope of authority

(1) A surrogate acting under the authority of either Section 75-2a-107 or 75-2a-108 shall make health care decisions in accordance with:
(a) the adult's current preferences, to the extent possible;
(b) the adult's written or oral health care directions, if any; or
(c) the substituted judgment standard.
(2) A surrogate acting under authority of Sections 75-2a-107 and 75-2a-108:
(a) may not admit the adult to a licensed health care facility for long-term custodial placement other than for assessment, rehabilitative, or respite care over the objection of the adult; and
(b) may make health care decisions, including decisions to terminate life sustaining treatment for the adult patient in accordance with Subsection (1).
(3) A surrogate acting under authority of this section is not subject to civil or criminal liability or claims of unprofessional conduct for surrogate health care decisions made:
(a) in accordance with this section; and
(b) in good faith.

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VERMONT

Vt. Stat. Ann. tit. 14, § 3069 (West)
§ 3069. Powers of a guardian

(a) If the court enters judgment pursuant to subsection 3068(f) of this title, it may appoint a guardian if it determines that the respondent is unable to manage, without the supervision of a guardian, any or all aspects of his or her personal care and financial affairs.

(b) When the person under guardianship has an advance directive, the authority of the agent and the instructions contained therein shall remain in effect unless the probate division of the superior court expressly orders otherwise in a petition for review of the advance directive under 18 V.S.A. § 9718.

(c) The court shall grant powers to the guardian in the least restrictive manner appropriate to the circumstances of the respondent and consistent with any advance directive. Guardianship powers shall be ordered only to the extent required by the respondent's actual mental and adaptive limitations. 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:
(1) the power to exercise general supervision over the person under guardianship. This includes care, habilitation, education, and employment of the person under guardianship and choosing or changing the residence, subject to the requirements of sections 2691, 3073, and 3074 of this title;

(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;

(3) the power to exercise general financial supervision over the income and resources of the person under guardianship. This includes the power to seek or apply for, receive, invest, and expend all wages, compensation, insurance benefits, public benefits, and pensions for the benefit of the person under guardianship, to liquidate personal property for the benefit of the person under guardianship, to settle accounts, demands, claims, and actions by or against the person under guardianship, and to take any other action reasonably necessary to secure, preserve, protect, and defend the financial interests of the person under guardianship;

(4) the power to approve or withhold approval of any contract, except for necessaries, which the person under guardianship wishes to make;

(5) the power to approve or withhold approval of the sale or encumbrance of real property of the person under guardianship subject to subchapter 6 of this chapter;

(6) the power to obtain legal advice and to commence or defend against court actions in the name of the person under guardianship.

(d) (1) When a guardian has been granted some but not all guardianship powers, the guardianship shall be identified as a “limited guardianship” and the guardian identified as a “limited guardian.”

(2) A person for whom limited guardianship has been granted retains all the powers identified in subsection (c) of this section except those which have been specifically granted to the limited guardian.

(e) The guardian shall exercise supervisory powers in a manner which is least restrictive of the personal freedom of the person under guardianship consistent with the need for supervision.

(f) The guardian shall encourage the person under guardianship to participate in decisions, to act on his or her own behalf when practicable, and to develop or regain the capacity to manage his or her own personal affairs to the maximum extent possible. The wishes, values, beliefs, and preferences of the person under guardianship shall be respected to the greatest possible extent in the exercise of all guardianship powers.

Vt. Stat. Ann. tit. 14, § 3071 (West)
§ 3071. Duties of guardian

(a) The guardian shall maintain close contact with the person under guardianship and encourage maximum self-reliance on the part of the person under guardianship.

(b) In addition to the powers vested in the guardian by the court pursuant to section 3069 of this title, the court may order the guardian to assure that the person under guardianship receives those benefits and services to which he or she is lawfully entitled and needs to maximize his or her opportunity for social and financial independence. Those benefits and services include, but are not limited to:
(1) education services for a person under guardianship who is of school age;

(2) residential services for a person under guardianship who lacks adequate housing;

(3) nutrition services;

(4) medical and dental services, including home health care;

(5) therapeutic and habilitative services, adult education, vocational rehabilitation or other appropriate services.

(c) The guardian shall always serve the interests of the person under guardianship and shall bring any potential conflicts of interest to the attention of the court.

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VIRGINIA

Va. Code Ann. § 64.2-2019 (West)
§ 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 and may be held personally liable for a breach of any fiduciary duty to the incapacitated person. A guardian shall not be liable for the acts of the incapacitated person unless the guardian is personally negligent. A guardian shall not be required to expend personal funds on behalf of the incapacitated person.

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.

C. A guardian shall maintain sufficient contact with the incapacitated person to know of his capabilities, limitations, needs, and opportunities. The guardian shall visit the incapacitated person as often as necessary.

D. A guardian shall be required to seek prior court authorization to change the incapacitated person's residence to another state, to terminate or consent to a termination of the person's parental rights, or to initiate a change in the person's marital status.

E. A guardian shall, to the extent feasible, encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the incapacitated person to the extent known and shall otherwise act in the incapacitated person's best interest and exercise reasonable care, diligence, and prudence.

F. A guardian shall have authority to make arrangements for the funeral and disposition of remains, including cremation, interment, entombment, memorialization, inurnment, or scattering of the cremains, or some combination thereof, if the guardian is not aware of any person that has been otherwise designated to make such arrangements as set forth in § 54.1-2825. A guardian shall have authority to make arrangements for the funeral and disposition of remains after the death of an incapacitated person if, after the guardian has made a good faith effort to locate the next of kin of the incapacitated person to determine if the next of kin wishes to make such arrangements, the next of kin does not wish to make the arrangements or the next of kin cannot be located. Good faith effort shall include contacting the next of kin identified in the petition for appointment of a guardian. The funeral service licensee, funeral service establishment, registered crematory, cemetery, cemetery operator, or guardian shall be immune from civil liability for any act, decision, or omission resulting from acceptance of any dead body for burial, cremation, or other disposition when the provisions of this section are met, unless such acts, decisions, or omissions resulted from bad faith or malicious intent.

Va. Code Ann. § 54.1-2986 (West)
§ 54.1-2986. Procedure in absence of an advance directive; procedure for advance directive without agent; no presumption; persons who may authorize health care for patients incapable of informed decisions

A. Whenever a patient is determined to be incapable of making an informed decision and (i) has not made an advance directive in accordance with this article or (ii) has made an advance directive in accordance with this article that does not indicate his wishes with respect to the health care at issue and does not appoint an agent, the attending physician may, upon compliance with the provisions of this section, provide, continue, withhold or withdraw health care upon the authorization of any of the following persons, in the specified order of priority, if the physician is not aware of any available, willing and capable person in a higher class:
1. A guardian for the patient. This subdivision shall not be construed to require such appointment in order that a health care decision can be made under this section; or
2. The patient's spouse except where a divorce action has been filed and the divorce is not final; or
3. An adult child of the patient; or
4. A parent of the patient; or
5. An adult brother or sister of the patient; or
6. Any other relative of the patient in the descending order of blood relationship; or
7. Except in cases in which the proposed treatment recommendation involves the withholding or withdrawing of a life-prolonging procedure, any adult, except any director, employee, or agent of a health care provider currently involved in the care of the patient, who (i) has exhibited special care and concern for the patient and (ii) is familiar with the patient's religious beliefs and basic values and any preferences previously expressed by the patient regarding health care, to the extent that they are known. A quorum of a patient care consulting committee as defined in § 54.1-2982 of the facility where the patient is receiving health care or, if such patient care consulting committee does not exist or if a quorum of such patient care consulting committee is not reasonably available, two physicians who (a) are not currently involved in the care of the patient, (b) are not employed by the facility where the patient is receiving health care, and (c) do not practice medicine in the same professional business entity as the attending physician shall determine whether a person meets these criteria and shall document the information relied upon in making such determination.
If two or more of the persons listed in the same class in subdivisions A 3 through A 7 with equal decision-making priority inform the attending physician that they disagree as to a particular health care decision, the attending physician may rely on the authorization of a majority of the reasonably available members of that class.

B. Regardless of the absence of an advance directive, if the patient has expressed his intent to be an organ donor in any written document, no person noted in this section shall revoke, or in any way hinder, such organ donation.

Va. Code Ann. § 54.1-2986.1 (West)

§ 54.1-2986.1. Duties and authority of agent or person identified in § 54.1-2986

A. If the declarant appoints an agent in an advance directive, that agent shall have (i) the authority to make health care decisions for the declarant as specified in the advance directive if the declarant is determined to be incapable of making an informed decision and (ii) decision-making priority over any person identified in § 54.1-2986. In no case shall the agent refuse or fail to honor the declarant's wishes in relation to anatomical gifts or organ, tissue or eye donation. Decisions to restrict visitation of the patient may be made by an agent only if the declarant has expressly included provisions for visitation in his advance directive; such visitation decisions shall be subject to physician orders and policies of the institution to which the declarant is admitted. No person authorized to make decisions for a patient under § 54.1-2986 shall have authority to restrict visitation of the patient.

B. Any agent or person authorized to make health care decisions pursuant to this article shall (i) undertake a good faith effort to ascertain the risks and benefits of, and alternatives to any proposed health care, (ii) make a good faith effort to ascertain the religious values, basic values, and previously expressed preferences of the patient, and (iii) to the extent possible, base his decisions on the beliefs, values, and preferences of the patient, or if they are unknown, on the patient's best interests.

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WASHINGTON

Wash. Rev. Code Ann. § 11.92.043 (West)
11.92.043. Additional duties

It shall be the duty of the guardian or limited guardian of the person:

(1) To file within three months after appointment a personal care plan for the incapacitated person which shall include (a) an assessment of the incapacitated person's physical, mental, and emotional needs and of such person's ability to perform or assist in activities of daily living, and (b) the guardian's specific plan for meeting the identified and emerging personal care needs of the incapacitated person.

(2) To file annually or, where a guardian of the estate has been appointed, at the time an account is required to be filed under RCW 11.92.040, a report on the status of the incapacitated person, which shall include:
(a) The address and name of the incapacitated person and all residential changes during the period;
(b) The services or programs which the incapacitated person receives;
(c) The medical status of the incapacitated person;
(d) The mental status of the incapacitated person;
(e) Changes in the functional abilities of the incapacitated person;
(f) Activities of the guardian for the period;
(g) Any recommended changes in the scope of the authority of the guardian;
(h) The identity of any professionals who have assisted the incapacitated person during the period;
(i) (i) Evidence of the guardian or limited guardian's successful completion of any standardized training video or web cast for guardians or limited guardians made available by the administrative office of the courts and the superior court when the guardian or limited guardian: (A) Was appointed prior to July 22, 2011; (B) is not a certified professional guardian or financial institution authorized under RCW 11.88.020; and (C) has not previously completed the requirements of RCW 11.88.020(3). The training video or web cast must be provided at no cost to the guardian or limited guardian.
(ii) The superior court may, upon (A) petition by the guardian or limited guardian; or (B) any other method as provided by local court rule:

(I) For good cause, waive this requirement for guardians appointed prior to July 22, 2011. Good cause shall require evidence that the guardian already possesses the requisite knowledge to serve as a guardian without completing the training. When determining whether there is good cause to waive the training requirement, the court shall consider, among other facts, the length of time the guardian has been serving the incapacitated person; whether the guardian has timely filed all required reports with the court; whether the guardian is monitored by other state or local agencies; and whether there have been any allegations of abuse, neglect, or a breach of fiduciary duty against the guardian; or

(II) Extend the time period for completion of the training requirement for ninety days; and

(j) Evidence of the guardian or limited guardian's successful completion of any additional or updated training video or web cast offered by the administrative office of the courts and the superior court as is required at the discretion of the superior court unless the guardian or limited guardian is a certified professional guardian or financial institution authorized under RCW 11.88.020. The training video or web cast must be provided at no cost to the guardian or limited guardian.

(3) To report to the court within thirty days any substantial change in the incapacitated person's condition, or any changes in residence of the incapacitated person.

(4) Consistent with the powers granted by the court, to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person's freedom and appropriate to the incapacitated person's personal care needs, assert the incapacitated person's rights and best interests, and if the incapacitated person is a minor or where otherwise appropriate, to see that the incapacitated person receives appropriate training and education and that the incapacitated person has the opportunity to learn a trade, occupation, or profession.

(5) Consistent with RCW 7.70.065, to provide timely, informed consent for health care of the incapacitated person, except in the case of a limited guardian where such power is not expressly provided for in the order of appointment or subsequent modifying order as provided in RCW 11.88.125 as now or hereafter amended, the standby guardian or standby limited guardian may provide timely, informed consent to necessary medical procedures if the guardian or limited guardian cannot be located within four hours after the need for such consent arises. No guardian, limited guardian, or standby guardian may involuntarily 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 set forth in chapter 71.05 or 72.23 RCW 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 71.05.217.

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.

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WEST VIRGINIA

W. Va. Code Ann. § 44A-3-1 (West)
§ 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.

(b) A guardian shall maintain sufficient contact of not less than once very six months with the protected person to know of the protected person's capabilities, limitations, needs, and opportunities.

(c) A guardian shall be required to seek prior court authorization to change the protected person's residence to another state, to terminate or consent to a termination of the protected person's parental rights, to initiate a change in the protected person's marital status, 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.

(d) A guardian shall exercise authority only to the extent necessitated by the protected person's limitations, and, where feasible, shall encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage personal affairs.

(e) A guardian shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence.

(f) Upon the petition of an interested party or upon its own motion, the court or Mental Hygiene Commissioner may order the guardian to take appropriate action to address the needs and best interests of the protected person as required by this section

W. Va. Code Ann. § 16-30-6 (West)
§ 16-30-6. Private decision-making process; authority of living will, medical power of attorney representative and surrogate

(a) Any capable adult may make his or her own health care decisions without regard to guidelines contained in this article.

(b) Health care providers and health care facilities may rely upon health care decisions made on behalf of an incapacitated person without resort to the courts or legal process, if the decisions are made in accordance with the provisions of this article.

(c) The medical power of attorney representative or surrogate shall have the authority to release or authorize the release of an incapacitated person's medical records to third parties and make any and all health care decisions on behalf of an incapacitated person, except to the extent that a medical power of attorney representative's authority is clearly limited in the medical power of attorney.

(d) The medical power of attorney representative or surrogate's authority shall commence upon a determination, made pursuant to section seven of this article, of the incapacity of the adult. In the event the person no longer is incapacitated or the medical power of attorney representative or surrogate is unwilling or unable to serve, the medical power of attorney representative or surrogate's authority shall cease. However, the authority of the medical power of attorney representative or surrogate may recommence if the person subsequently becomes incapacitated as determined pursuant to section seven of this article unless during the intervening period of capacity the person executes an advance directive which makes a surrogate unnecessary or expressly rejects the previously appointed surrogate as his or her surrogate. A medical power of attorney representative or surrogate's authority terminates upon the death of the incapacitated person except with respect to decisions regarding autopsy, funeral arrangements or cremation and organ and tissue donation: Provided, That the medical power of attorney representative or surrogate has no authority after the death of the incapacitated person to invalidate or revoke a preneed funeral contract executed by the incapacitated person in accordance with the provisions of article fourteen, chapter forty-seven of this code prior to the onset of the incapacity and either paid in full before the death of the incapacitated person or collectible from the proceeds of a life insurance policy specifically designated for that purpose.

(e) The medical power of attorney representative or surrogate shall seek medical information necessary to make health care decisions for an incapacitated person. For the sole purpose of making health care decisions for the incapacitated person, the medical power of attorney representative or surrogate shall have the same right of access to the incapacitated person's medical information and the same right to discuss that information with the incapacitated person's health care providers that the incapacitated person would have if he or she was not incapacitated.

(f) If an incapacitated person previously expressed his or her wishes regarding autopsy, funeral arrangements or cremation, organ or tissue donation or the desire to make an anatomical gift by a written directive such as a living will, medical power of attorney, donor card, driver's license or other means, the medical power of attorney representative or surrogate shall follow the person's expressed wishes regarding autopsy, funeral arrangements or cremation, organ and tissue donation or anatomical gift. In the absence of any written directives, any decision regarding anatomical gifts shall be made pursuant to the provisions of article nineteen of this chapter.

(g) If a person is incapacitated at the time of the decision to withhold or withdraw life-prolonging intervention, the person's living will or medical power of attorney executed in accordance with section four of this article is presumed to be valid. For the purposes of this article, a physician or health facility may presume in the absence of actual notice to the contrary that a person who executed a living will or medical power of attorney was a competent adult when it was executed. The fact that a person executed a living will or medical power of attorney is not an indication of the person's mental incapacity.

W. Va. Code Ann. § 16-30-8 (West)
§ 16-30-8. Selection of a surrogate

(a) When a person is or becomes incapacitated, the attending physician or the advanced nurse practitioner with the assistance of other health care providers as necessary, shall select, in writing, a surrogate. The attending physician or advanced nurse practitioner shall reasonably attempt to determine whether the incapacitated person has appointed a representative under a medical power of attorney, in accordance with the provisions of section four of this article, or if the incapacitated person has a court-appointed guardian in accordance with the provisions of article one, chapter forty-four-a of this code. If no representative or court-appointed guardian is authorized or capable and willing to serve, the attending physician or advanced nurse practitioner is authorized to select a health care surrogate. In selecting a surrogate, the attending physician or advanced nurse practitioner must make a reasonable inquiry as to the existence and availability of a surrogate from the following persons:
(1) The person's spouse;
(2) The person's adult children;
(3) The person's parents;
(4) The person's adult siblings;
(5) The person's adult grandchildren;
(6) The person's close friends;
(7) Any other person or entity, including, but not limited to, public agencies, public guardians, public officials, public and private corporations and other persons or entities which the department of health and human resources may from time to time designate in rules promulgated pursuant to chapter twenty-nine-a of this code.
(b) After inquiring about the existence and availability of a medical power of attorney representative or a guardian as required by subsection (a) of this section and determining that such persons either do not exist or are unavailable, incapable or unwilling to serve as a surrogate, the attending physician or an advanced nurse practitioner shall select and rely upon a surrogate in the order of priority set forth in subsection (a) of this section, subject to the following conditions:
(1) Where there are multiple possible surrogate decisionmakers at the same priority level, the attending physician or the advanced nurse practitioner shall, after reasonable inquiry, select as the surrogate the person who reasonably appears to be best qualified. The following criteria shall be considered in the determination of the person or entity best qualified to serve as the surrogate:
(A) Whether the proposed surrogate reasonably appears to be better able to make decisions either in accordance with the known wishes of the person or in accordance with the person's best interests;
(B) The proposed surrogate's regular contact with the person prior to and during the incapacitating illness;
(C) The proposed surrogate's demonstrated care and concern;
(D) The proposed surrogate's availability to visit the incapacitated person during his or her illness; and
(E) The proposed surrogate's availability to engage in face-to-face contact with health care providers for the purpose of fully participating in the decision-making process;
(2) The attending physician or the advanced nurse practitioner may select a proposed surrogate who is ranked lower in priority if, in his or her judgment, that individual is best qualified, as described in this section, to serve as the incapacitated person's surrogate. The attending physician or the advanced nurse practitioner shall document in the incapacitated person's medical records his or her reasons for selecting a surrogate in exception to the priority order provided in subsection (a) of this section.
(c) The surrogate is authorized to make health care decisions on behalf of the incapacitated person without a court order or judicial involvement.
(d) A health care provider or health care facility may rely upon the decisions of the selected surrogate if the provider believes, after reasonable inquiry, that:
(1) A guardian or representative under a valid, applicable medical power of attorney is unavailable, incapable or unwilling to serve;
(2) There is no other applicable advance directive;
(3) There is no reason to believe that such health care decisions are contrary to the incapacitated person's religious beliefs; and
(4) The attending physician or advanced nurse practitioner has not received actual notice of opposition to any health care decisions made pursuant to the provisions of this section.
(e) If a person who is ranked as a possible surrogate pursuant to subsection (a) of this section wishes to challenge the selection of a surrogate or the health care decision of the selected surrogate, he or she may seek injunctive relief or may file a petition for review of the selection of, or decision of, the selected surrogate with the circuit court of the county in which the incapacitated person resides or the supreme court of appeals. There shall be a rebuttable presumption that the selection of the surrogate was valid and the person who is challenging the selection shall have the burden of proving the invalidity of that selection. The challenging party shall be responsible for all court costs and other costs related to the proceeding, except attorneys' fees, unless the court finds that the attending physician or advanced nurse practitioner acted in bad faith, in which case the person so acting shall be responsible for all costs. Each party shall be responsible for his or her own attorneys' fees.
(f) If the attending physician or advanced nurse practitioner is advised that a person who is ranked as a possible surrogate pursuant to the provisions of subsection (a) of this section has an objection to a health care decision to withhold or withdraw a life-prolonging intervention which has been made by the selected surrogate, the attending physician or advanced nurse practitioner shall document the objection in the medical records of the patient. Once notice of an objection or challenge is documented, the attending physician or advanced nurse practitioner shall notify the challenging party that the decision shall be implemented in seventy-two hours unless the attending physician receives a court order prohibiting or enjoining the implementation of the decision as provided in subsection (e) of this section. In the event that the incapacitated person has been determined to have undergone brain death and the selected surrogate has authorized organ or tissue donation, the decision shall be implemented in twenty-four hours unless the attending physician receives a court order prohibiting or enjoining the implementation of the decision as provided in said subsection.
(g) If the surrogate becomes unavailable for any reason, the surrogate may be replaced by applying the provisions of this section.
(h) If a person who ranks higher in priority relative to a selected surrogate becomes available and willing to be the surrogate, the person with higher priority may be substituted for the identified surrogate unless the attending physician determines that the lower-ranked person is best qualified to serve as the surrogate.
(i) The following persons may not serve as a surrogate: (1) A treating health care provider of the person who is incapacitated; (2) an employee of a treating health care provider not related to the person who is incapacitated; (3) an owner, operator or administrator of a health care facility serving the person who is incapacitated; or (4) any person who is an employee of an owner, operator or administrator of a health care facility serving the person who is incapacitated and who is not related to that person.

W. Va. Code Ann. § 16-30-9 (West)
§ 16-30-9. Medical power of attorney representative and health care surrogate decision-making standards
(a) General standards.
The medical power of attorney representative or the health care surrogate shall make health care decisions:
(1) In accordance with the person's wishes, including religious and moral beliefs; or
(2) In accordance with the person's best interests if these wishes are not reasonably known and cannot with reasonable diligence be ascertained; and
(3) Which reflect the values of the person, including the person's religious and moral beliefs, to the extent they are reasonably known or can with reasonable diligence be ascertained.
(b) Assessment of best interests.
An assessment of the person's best interests shall include consideration of the person's medical condition, prognosis, the dignity and uniqueness of every person, the possibility and extent of preserving the person's life, the possibility of preserving, improving or restoring the person's functioning, the possibility of relieving the person's suffering, the balance of the burdens to the benefits of the proposed treatment or intervention and such other concerns and values as a reasonable individual in the person's circumstances would wish to consider.

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WISCONSIN
Wis. Stat. Ann. § 54.18 (West)
54.18. General duties and powers of guardian; limitations; immunity

(1) A ward retains all his or her rights that are not assigned to the guardian or otherwise limited by statute. A guardian acting on behalf of a ward may exercise only those powers that the guardian is authorized to exercise by statute or court order. A guardian may be granted only those powers necessary to provide for the personal needs or property management of the ward in a manner that is appropriate to the ward and that constitutes the least restrictive form of intervention.

(2) A guardian shall do all of the following:
(a) Exercise the degree of care, diligence, and good faith when acting on behalf of a ward that an ordinarily prudent person exercises in his or her own affairs.
(b) Advocate for the ward's best interests, including, if the ward is protectively placed under ch. 55 and if applicable, advocating for the ward's applicable rights under ss. 50.09 and 51.61.
(c) Exhibit the utmost degree of trustworthiness, loyalty, and fidelity in relation to the ward.
(d) Notify the court of any change of address of the guardian or ward.
(3) No guardian may do any of the following:
(a) Lend funds of the ward to himself or herself.
(b) Lend funds of the ward to another individual or to an entity, unless the court first approves the terms, rate of interest, and any requirement for security.
(c) Purchase property of the ward, except at fair market value, subject to ch. 786, and with the approval of the court.
(4) A guardian of the person or of the estate is immune from civil liability for his or her acts or omissions in performing the duties of the guardianship if he or she performs the duties in good faith, in the best interests of the ward, and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.

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WYOMING

Wyo. Stat. Ann. § 3-2-201 (West)
§ 3-2-201. Powers and duties of guardian

(a) The guardian shall:

  1. Determine and facilitate the least restrictive and most appropriate and available residence for the ward;
  2. Facilitate the ward's education, social and other activities;
  3. Subject to the restrictions of W.S. 3-2-202, authorize or expressly withhold authorization of medical or other professional care, treatment or advice;
  4. Take reasonable care of the ward's personal property;
  5. Commence protective proceedings if necessary to protect the property of the ward;
  6. Apply to the ward's current needs for support, care and education as much of the money or property paid or delivered to the guardian pursuant to W.S. 3-3-108 as may be appropriate;
  7. Exercise due care to conserve excess funds for the ward's future needs;
  8. Pay to the conservator excess funds at least annually;
  9. Request the court to modify the guardian's range of duties if the changed circumstances of the ward require such modification; and
  10. Following the death of a ward, arrange for the final disposition of the ward's remains according to the ward's expressed wishes if known, if the immediate family is unavailable or unwilling to assume responsibility. For purposes of this paragraph, “immediate family” is defined as parents, spouse, grandparents, siblings and adult children.

(b) The guardian may:

  1. Receive money payable from any conservatorship for the support of the ward;
  2. Receive money or property of the ward paid or delivered to the guardian pursuant to W.S. 3-3-108;
  3. Institute proceedings to compel the performance by any person of the duty to support or contribute to the support of the ward;
  4. (iv) and (v) Repealed by Laws 1998, ch. 114, § 3.
  5. Consent to the marriage or adoption of the ward.

(c) The guardian is not liable for injury to the ward resulting from the negligence or acts of third persons performed by authority given by the guardian for medical or other professional care, treatment or advice, unless it would have been negligent for a parent to have given that authority.

(d) Funds received by the guardian pursuant to W.S. 3-3-108 shall not be used for compensation for the services of the guardian unless approved as required under W.S. 3-2-111.

(e) The guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of his unemancipated minor child. A guardian who is not a parent of the minor is not obligated to expend his own funds for the support of the ward. A guardian who is not the parent of a minor is not liable to third persons for acts of the ward by reason of the relationship of guardian and ward.

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