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Hello, folks. Welcome back to the Testing Psychologist podcast. I am glad to be here with you. My guest today, Dr. Amber Vernon is a clinical psychologist licensed in Virginia. She completed her doctoral training at Pacific University in Oregon and her internship through the University of Medicine and Dentistry in [00:01:00] New Jersey. Amber has worked in a variety of settings, including corrections, community mental health, education, law enforcement, college counseling, and private practice. She is motivated to make quality psychological services accessible to individuals and organizations with unique needs.
To that end, Dr. Vernon is dedicated to building and maintaining bridges between people, experiences, and disciplines. That is certainly a thread in our conversation today. We’re talking all about guardianship and conservatorship evaluations. So we’ve looked at and discussed capacity evaluations and decision-making on the podcast before, but not through this lens.
We talk about, first of all, Amber’s personal experience with capacity and decision-making, which is a story that you do not want to miss. We talk about the legal aspects and definitions relevant to these evaluations. We talk about levels of decision making and we talk about what these evaluations are [00:02:00] not, which is just as important as what they are. So lots to take away as usual. It’s a great conversation. Amber is delightful. I had a great time chatting with her and I hope that you enjoy this episode.
So without further ado, let’s get to my conversation with Dr. Amber Vernon.
Hey Amber, welcome to the podcast.
Dr. Amber: Well, thank you. I almost said welcome to you. I guess you’re the host at this point.
Dr. Sharp: Yeah. That would not be entirely inappropriate though. I have not done an interview for a while, so I do feel like am…
Dr. Amber: Welcome to this interview then.
Dr. Sharp: Thank you. It’s nice to be back. It’s nice to be back doing this.
No, I’m so glad to be talking with you here [00:03:00] about this topic of guardianship and decision-making and capacity evals. We’ve touched on it in past episodes, but never really done a deep dive, especially for private practice kind of stuff. So, I’m excited to chat with you. Thanks for being here.
Dr. Amber: Yeah, thank you so much. I’m excited as well. As you mentioned, it’s all of the above. We make decisions all the time in our lives and we also have to be in the role of helping determine if we can accept or reject people’s decisions in our professional lives and in helping out in our role as well. And so it’s a topic that has become one of a lot of interest for me. And so, it’s just exciting to go on a deep dive with someone else, not by myself. It’s always fun with a friend.
Dr. Sharp: Yes, exactly. Well, let’s talk about that a little bit. What led you to this point, of all the things you could focus on or direct your [00:04:00] time, why this? Why is this important to you?
Dr. Amber: As many folks do, you end up going on a deep dive because somebody asked you to. In my experience, it was not anything I ever had thought about or had trained on, or really knew much about until I took a role at a community services board, which is where I’ve worked for quite a while. And in that role, one of the things that we are asked to do is make determinations about whether or not somebody can consent to services as a state-run and state-affiliated behavioral authority.
And so I knew nothing about it and was asked to do it. And of course, when you get asked to do something, I’d like to do it ethically and well. Those two things often go hand in hand. And had to jump in and do a lot of research.
As I started doing that, I realized I didn’t know anybody who knew [00:05:00] anything about it or even could point me in the right direction. And so that deep dive was, what are the books? What does the internet say? Are there statutes? Are there guidelines? What even is this? How do people do it? That was how I started looking into it that way. Through that, it started reminding me of a lot of personal experiences that I’ve had that made me say, I actually really care about this, it turns out.
Just by example, I was a childhood cancer patient under the age of medical consent, and I had really clear memories of my parents signing the informed consent after all the risks were read, that they were like, “Sure, this may kill her, but yeah, go ahead and shoot her up with chemo,” and me being like, wait, what?
Dr. Sharp: Take a minute.
Dr. Amber: I don’t [00:06:00] agree to this. And so I thought about that. I’m a parent through adoption, through the foster care system, and so I’ve had experiences about what I do and don’t have the rights or authority, even though I’m caring for my child, but the state has that authority. I had roles where I worked in institutional review board at a university where you’re looking at consent and protected populations and research, and then as a caretaker for my grandfather as he was going through some pretty significant cognitive decline and somebody who was in that role showing up and being an advocate for him.
And so both personally and professionally is something that I’ve definitely started to care a lot about and want to help other people not scramble to learn as much as I had to. To try to say, “Hey, let me tell you what I know, and you take it from there.”[00:07:00] Dr. Sharp: Well, yeah. I think that overlap of personal and professional is what drives a lot of us in our work. That personal experience just gives it a little extra meaning to it, at least in my experience. It’s like for you as well.
Dr. Amber: Well and to some extent for all of us, our decisions, what we decide to do and what we don’t decide to do, and that agency that we have through our decisions is so much about our lives and who we are and how we are in the world.
And so the flip side of that also is to take steps either temporarily, informally, or formally through the courts to remove somebody’s decision making abilities is a big deal. And if I’m going to be involved in that professionally, I want to make sure that I’m doing that in the most responsible way possible because it is a big deal. It’s a big deal to remove somebody’s decision [00:08:00] making rights temporarily or permanently, and it often ends up permanent. Once you go down that path, it’s really hard to dial it back.
Dr. Sharp: Right. I like the emphasis that you put on that. I think that’s something that a lot of us take for granted is being able to make our own decisions relatively freely, at least in the middle 75% of our lives, right? I’m just excited to really dig into this because I think the weight is pretty clear here that these are important services that we’re providing folks.
Dr. Amber: Definitely.
Dr. Sharp: We have to take it seriously.
Dr. Amber: And I think to your point as well, our right to make stupid decisions.
Dr. Sharp: Yeah, sure.
Dr. Amber: There’s a lot of times where psychologists, psychiatrists, medical providers get involved or they’re asked to get involved because somebody else doesn’t like the decisions somebody’s making. [00:09:00] In my experience, when people say yes to the thing you want them to say yes to, we don’t often question their decision-making ability, which is problematic, but we typically question it when we don’t like it.
Dr. Sharp: Of course.
Dr. Amber: And so that piece there, we want to check that yes means yes, not just that no actually means no.
Dr. Sharp: That’s such a good point. There’s so many layers to feel back here. This is good. I’m guessing the audience is already thinking deeply about this whole process. And you brought up a lot of good points.
I do just want to reflect though that memory that you shared of being a kid and seeing your parents consent to chemo on your behalf when you’re like, wait a minute, that just seems so powerful to, that it stuck with you and that you can remember that moment. I don’t really have anything beyond that. I’m just reflecting. That really [00:10:00] hit me like, wow, that’s a lot as a kid to be working with.
Dr. Amber: Yeah. As I think back on it now, those types of things have definitely shaped how I talk with people, how I work with people, whether it’s kids who are making decision, consent, in mental health, depending on the laws, depending on where people are at, what is the age of consent? We deal with that anyway. And then on top of that, when it does get more complicated, how do you talk to people in a way that’s age appropriate? How do you involve people in decisions even when maybe they don’t have the decision-making authority, either because they’re under 18 or maybe somebody is their power of attorney or their guardian. How do you still involve people appropriately? Because the experience of having your voice not heard or [00:11:00] not shifting the path of where treatment or where something’s going is really painful for people.
Dr. Sharp: Right. This is one of those nuances that I think we’re going to get into; it’s not always black and white. Like you said, even if someone has decision-making capacity for another person, there are degrees that the individual can still be involved.
Dr. Amber: A 100%
Dr. Sharp: That’s important. Well, I wonder if we might start with a little context and maybe just some definitions. We’re talking about decision-making capacity evals. In the past, I’ve talked about it as far as like the criminal justice system and then hospital based capacity, but we’re going to go down this path more of like guardianship [00:12:00] and conservatorship. I’m not sure what the word is, like layperson decision making or something, not like a systemic thing necessarily. And day to day life, these situations that we run into.
Could you do some definitions for us as far as like guardianship versus conservatorship versus supported decision-making versus any others that I might be missing that we would need for this conversation?
Dr. Amber: I think that’s a great point because the conversations I have with people again and again, and I will say from family members, from individuals, from medical providers, from lawyers to judges to public guardians, `, a lot of people have no idea what I’m talking about.
And I think that goes to the fact that for even people who are actively involved in these types of [00:13:00] things, there’s not a lot of training about it. When I’ve talked to medical doctors and I say, how did you learn how to assess whether somebody could consent to the treatment you were offering? I don’t know. Excuse me, law enforcement officer, how did you determine if somebody had the capacity to either voluntarily go to the hospital or be forcibly taken to the hospital against their will? How did you learn how to do that? I don’t know. You just figure it out.
Dr. Sharp: That’s so scary.
Dr. Amber: It is. And so I think that’s the first thing to say for a lot of people as you hear this, it’s like, what are those words? I’ve heard them before. What do they mean? And that has been my experience with a lot of people. And so talking about definitions is fun because it makes me also sound really knowledgeable about something that’s very confusing. So thank you for that opportunity.
Dr. Sharp: Of course.
Dr. Amber: I would say first of all, the big picture thing that differentiates [00:14:00] the general thing that we’re talking about, I would say, is the difference between capacity and competency. And those words often get used interchangeably. I may even do it during our conversation. But for practical purposes, competency really is that black and white, yes/no legal determination typically around somebody’s ability to proceed in the legal justice system with a criminal justice system. Whereas capacity tends to be that more nuanced, gradated version of somebody’s ability to make lots of different types of decisions.
And even if somebody’s determined to need a guardian, there are also full guardianships, full conservatorships, or limited guardianships and conservatorships, which acknowledges the fact that somebody may need a decision maker in certain areas, but not in others. So again, capacity versus competency. So we’re [00:15:00] going to turn our attention more to the capacity decision making piece.
Dr. Sharp: Nice.
Dr. Amber: So from most restrictive to least restrictive is how I would organize things, at least in my brain. So the most restrictive type of formal decision making again, is that guardianship and conservatorship. Guardianship more so has to do with decisions like, can I vote, can I get married? Can I enter into legal contracts? As similar as like signing a lease or signing up for a cell phone, that’s a legal contract. We often don’t think about that. But it really has to do with decisions in that area. Whereas conservatorship is more around money and managing somebody’s financial resources, their estate, their property, things like that. It’s more about the money piece.
So again, people often use those hand in hand. [00:16:00] It’s very common that if somebody goes through the court, they will and get guardianship. A conservator may also be appointed, but they are two separate things.
Dr. Sharp: Okay. I was going to ask, is conservatorship ever subsumed under guardianship or is it always a separate determination and appointment?
Dr. Amber: Well, that’s a good question. I’m speaking primarily from my experience in Virginia. So I can say in Virginia, they are two separate things. The proceedings often happen at the same time. It is often a similar process, but if somebody doesn’t have a lot of financial resources and wealth and property that would need to be managed by a conservator, that may not be added into the mix.
I don’t know how other states do that. I think that’s something that if somebody’s interested and they want to know, how does this work in my state? Looking at statutes, looking at the law there, [00:17:00] would help answer that question.
Dr. Sharp: Cool. Thanks.
Dr. Amber: So guardianship conservatorship, again, most restrictive, very hard to get out of. It means determination by a court that somebody… Usually there’s some statutory language around whether or not someone’s incapacitated. There’s definitions by law of what incapacitated means, and that could be either a permanent thing or a temporary thing, right?
So I could have potentially a cognitive disability, an intellectual disability that I’ve had since birth where there’s no real idea that those abilities may change. Or I may have had a pretty severe brain injury that maybe over time my abilities may change or improve. And so, you can get out of a guardianship, you can get out of a conservatorship, but if anybody’s been paying attention to the news with Amanda Bynes [00:18:00] and Britney Spears, you have seen that it is incredibly difficult.
Dr. Sharp: It’s hard.
Dr. Amber: It is very, very hard to get out of that.
Dr. Sharp: It’s a great point. So there’s more complexity here of course than one might expect. So you’ve got full, you’ve got limited capacity or limited decision making.
Dr. Amber: Exactly. And so then the next part of that is that sometimes, and again I’m speaking from my understanding of the system in Virginia, our Department of Behavioral Health, probably has its counterparts in many other areas, says for folks who are served in our state hospitals or in our community services boards, if we have concerns about somebody’s ability to provide informed consent for treatment, we are going to do some assessment and make a determination if somebody needs an [00:19:00] authorized representative.
At least in Virginia Code, that’s what it’s referred to, it is not guardianship, but it says in our sphere of treatment influence, do we believe that you have the ability to make informed consent for treatment related to our facility? And if not, we go through a process to identify who that would be, to assess that and then determine who it would be. So sometimes people may have an authorized representative and may never go to get a guardian? It would depend.
Dr. Sharp: Is an authorized representative still a legally appointed person?
Dr. Amber: I would say it’s not an illegally appointed person, but it’s not through the courts.
Dr. Sharp: Okay.
Dr. Amber: So in theory, well, not in theory, in reality, it is very similar to, let’s say I want to get a surgical procedure done, and the surgeon I’m working with says,[00:20:00] “I don’t know that you really understand what you’re getting into, and I want to assess your ability to consent to me giving you this treatment.”
At the hospital, they may have a process that they do when they’re worried about somebody’s ability to consent to a particular form of treatment, and that assessment would really just hold for that hospital and that type of decision. I couldn’t then take that from that doctor and say, well, now I don’t have decision-making abilities anywhere else I go.
So that’s how an authorized representative would work. They have the authority to make or the authorization, it’s in the name, to make those decisions for a person in the context of their treatment and services within a state facility or within a state supervised community services board or something like that.[00:21:00] Dr. Sharp: I see. That’s a great example. I appreciate you giving an example to bring it to life a little bit. Yeah.
Dr. Amber: So go ahead.
Dr. Sharp: I was just going to ask if there were other terms or definitions that we might need to know here as we proceed.
Dr. Amber: Yes. So the other one that often comes up is representative payees. So when people get social security benefits, if social security has determines that you may not be able to manage your money appropriately, they will assign a payee.
And so someone could have a payee, and so a disability check may come to that person, maybe a family member, maybe a community member who’s in that role professionally, who the check comes to them, and then they help manage that person’s money. So somebody could have a payee and not a guardian. They could have a payee and not an authorized representative, but that [00:22:00] guardianship or conservatorship, if that was put in place, that would take over any of those other roles. It would be kind of the highest authority.
Dr. Sharp: I see.
Dr. Amber: Yeah. And then the other things that come up, like you said, supported decision making. Sometimes people will also talk about power of attorneys, medical power of attorneys, advanced directives, all that kind of stuff. So those things are documents that somebody could put into place on their own that would say, if I am found to lack capacity or I can’t communicate my preferences, my decisions, I’m going to preemptively identify who I want to be in that role.
Dr. Sharp: Yes.
Dr. Amber: Now the tricky thing is that assumes that you have the capacity to understand what that document is and to sign it.
Dr. Sharp: Sure. So people get in trouble if they haven’t set this up [00:23:00] ahead of time.
Dr. Amber: Sometimes. Now, again, in Virginia, I’m guessing is the case in many states, there are laws that say, in the absence of an advanced directive or a power of attorney, or a medical power of attorney, if we have concerns about somebody’s decision making and it’s an emergency situation, there’s language around who we go to first. Who would have that default authority if one of those documents wasn’t put in place.
Dr. Sharp: Got you.
Dr. Amber: And then supported decision making is, again, it’s a document that somebody could put in place that is really informal. It is not through the courts, it’s not stamped and approved by anybody. But that says, sometimes decisions are hard for me, and I’m going to tell you these are the people I want involved in my care, which we all do. Right? If you’ve had to sign a legal contract, buy a house, buy a car, [00:24:00] engage a contractor or a CPA or anything like that, you’re probably going to call somebody and say, I have no idea what this is about, and I really need your help.
Maybe I need you to look over these documents with me. Maybe I want you to come sit in on the meeting. We all have the ability to bring people in and get supports in our decision making, but for some people, especially if they have longstanding cognitive issues, developmental mental issues, mental health issues, sometimes even medical conditions, sometimes as those folks are going out in the world, they are treated as though they don’t have the ability to make those decisions or to bring people along just by nature of their diagnosis. Which we know just really isn’t the case.
Dr. Sharp: Right. Okay.
Dr. Amber: So that’s big picture of my list of definitions, if we need to go more deeply into any of those, but to just help [00:25:00] orient folks a little bit about where that is.
Dr. Sharp: No, that’s super helpful. I learned some things through that discussion and I’m sure a bunch of other people did too. These terms get thrown around and I feel like we hear them here and there, but to actually nail them down is super helpful.
Dr. Amber: Yeah. So the other thing I would put in, in terms of like nailing something down, just to be really clear about all of this, is that legally the minute someone turns 18, they are their own decision maker.
Dr. Sharp: Okay.
Dr. Amber: Period. They have those legal abilities inless guardianship has been put in place. My big recommendation is that we assume that everyone has that decision making ability. We proceed with that. We do discussions around risks and benefits and consent with the understanding that the moment somebody turns 18, they are [00:26:00] legally considered their own decision maker and we make adjustments or we figure things out as we go.
But just because somebody may have had an intellectual disability diagnosis or an autism diagnosis, or they had a TBI or cerebral palsy or whatever it may be, that the assumption isn’t that we’re sitting across from somebody, we see a diagnosis and we say, oh, automatically, I guess I need to talk to their caregiver, their parent, the person who brought them to the appointment, as opposed to the individual.
Dr. Sharp: Yeah. That’s such an important reminder. I think we’ve all probably defaulted to that at some point and just made assumptions, right? Our brains like to do that. We like to have things be clear and have shortcuts, and that can be a mistake a lot of the time.
So I wonder if we might talk about just the general setting situations where these [00:27:00] evaluations become helpful. Like where does a psychologist come in? Who’s calling you into this picture? At what point do you get involved? Anything around the practice setting and how you do this.
Dr. Amber: Yeah. So I think there’s two different ways that psychologists or mental health providers in general get involved in this. Number one, I would say in any situation where there’s a mental health emergency, depending on where you live, sometimes there are people who in addition to first responders, are pulled in on an emergency basis to determine does this individual need to be hospitalized involuntarily?
Do they lack the capacity in that moment to really truly consent to that level of care? And so depending on the way that the laws are and the way that people may be working, they may be familiar with being involved in making those types of decisions. That’s one area. I think the other [00:28:00] area is that we do informed consent all the time. Right? So that’s literally a decision that has risks and benefits and all of that, that people could say, do I consent even to this evaluation? If I’m doing this for a legal perspective, if you decide not to do this report or not to do this evaluation, what does that mean for you? What does it not mean for you?
So I would say we actually do decision making assessments all the time, and we write about them in our reports often. We say, I explain the benefits, the informed consent they gave it. If we say we had concerns about their ability to really understand what we were going over. This is why we proceeded anyway, this person didn’t understand but we accepted the ascent of their caregiver who came with them.
So another area is like if you’re doing evaluations and assessments and treatment, it’s literally part of what you’re doing. You’re [00:29:00] doing informed consent and going over the risks and benefits and getting agreement all the time.
Dr. Sharp: Mm-hmm, another one of those things that we just take for granted, or I do anyway. I don’t want to speak for everybody, but I certainly don’t necessarily view, every time I get, I talk about informed consent. Like, hey, this is a legal process going on here. This is a real heavy thing, even if someone appears to be totally capable of giving their consent.
Dr. Amber: Right. And again, for a lot of us, if somebody agrees to proceed with what we’re doing, we’re usually like, cool, awesome. Do you have any questions? No. All right. Let’s move it along. And what I found is that for a lot of people in certain settings due to power dynamics, due to cultural factors, due to any of the other kind of things that we’re dealing with. And maybe the reason we’re doing those evaluations. People are often very agreeable.
They will say yes, they will say they understand. And when you [00:30:00] go back and say, okay, great, let’s see how I did. Why are we meeting today? And you get a blank look back. Or you say, here, I just went over this paper. Can you tell me what it says we’re going to be doing? What are we talking about? What happens if you sign this? Nothing.
And so that piece, even around checking to make sure that consent really is consent, I would say we do that kind of stuff all the time. And our tendency is to only push into the question if somebody says, “I’m not doing this evaluation, I’m not signing that paper, I refuse,” then we start assessing that conversation.
And so that would be…. my one push is to say, I think we need to check in on it for both yeses and nos.
Dr. Sharp: That’s a great point. Again, there’s good research out there around how people will not tell you if they don’t understand something [00:31:00] or if they have questions. Like the vast majority of folks would just sit and nod even. Seemingly, people that we think understand or should understand.
Dr. Amber: I will say I’ve worked for a lot of years at this point, specifically with folks primarily with developmental and intellectual disabilities. And so my experience in doing evaluations is primarily around populations that may have some barriers. I don’t say they all do, but may have some barriers just by nature of the diagnosis that we already know are in place and how that affect people’s cognitive abilities and their communication abilities. And so it is something I’m probably more prone to go into by nature of the population I work with.
Dr. Sharp: Mm-hmm. Sure. That makes sense. Now what about bigger, maybe not bigger, that’s not the right [00:32:00] word, but maybe more comprehensive or formal evaluations?
Dr. Amber: Yes. So that was the next point. I’m glad that you brought that up. So the next thing I really think is if there are decisions that have been made that are now being questioned. So let’s say somebody signs a will and somebody got left out. And the family now says, “Well, I don’t really think that they were in their right mind when they took me out of the will.” Then you might have people who are saying, “We really need to retroactively assess whether that person had the capacity to make that decision when they made it.”.
Very tricky to do past capacity assessments, especially if the person has died, but they happen. Then I would say if there are concerns about somebody’s decision making ability, so let’s say you are the caregiver, the parent, the family member, the friend [00:33:00] who is in a care taking role or supported role with somebody, and it’s gotten to the point where you say, I really need to have this authority in order to really provide services for them.
And then that question is, who signs off on that? So from a legal standpoint, usually when people are going through guardianship proceedings, what happens is there’s a petition for guardianship, which basically says, I think somebody needs a guardian. I’m the person who said it. These are my reasons why I think it’s the case. Can we please have a court hearing?
So it’s obviously said in much more formal language than that, but there’s a petition that goes to the court and then typically, again, I’ll speak from Virginia. Then there is a guardian ad litem who is assigned to advocate for and represent the person who we think may need a guardian. And then there’s some statutory language on having some evaluation or assessment of somebody’s [00:34:00] decision making abilities, which will then be used by the court to determine, do they need a guardian?
Dr. Sharp: Sure. I like that.
Dr. Amber: For some people, they are able to get some of that documentation because the person has a longstanding treatment relationship with a medical provider, somebody with a medical doctorate, psychiatric doctorate, which I guess is also medical psychology doctorate, you’re a doctor of some kind.
The statute usually identifies those folks as the one who can make that assessment. And so a lawyer may ask somebody to write an affidavit based on the treatment relationship that they have with that person. Not everybody has a treatment relationship with somebody who meets that criteria, who is also willing to go on record legally and say that.
And so then the question may be, well now we need to get some evaluation for this person. And so they could be [00:35:00] either referred by the court or that that family member or friend is asking for it on their behalf. Or sometimes you even have somebody who says, I don’t need a dang guardian, and I’m going to prove to you by getting this evaluation that I can make my own decisions.
Dr. Sharp: Oh, that’s interesting. Okay. Yes. I’ve never run into those cases. It’s always thought the other side.
Dr. Amber: Usually it is, but every so often, I had a case the other day where people kept questioning somebody’s decision making abilities, and they said, “No, I don’t think I need this. And so I’m going to ask to be evaluated for my decision making to get them to shut up.”.
Dr. Sharp: That’s great. All right. Self-advocacy. That sounds… That’s awesome. Okay. That’s good. I think that’s helpful just to have that simple description of the process. Yeah, that’s helpful. Thank you. So then you get pulled in. So I’ve gotten asked to do some of these evals, very few [00:36:00] over the years, just being in private practice, from folks who know I have an expertise in a certain area that’s hopefully relevant to that case. Right.
Is that kind of your situation or was that happening through like employment through an agency? I’m curious as to the business side of this, so to speak. And how one gets involved in doing these evals.
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Dr. Amber: Yeah, so depending on if you want to call it right place, right time, right place, wrong time. It depends on how you feel about it. For me, in my experience at least, like I said, I came into a role at a community services board and part of that responsibility was to do those authorized representative evaluations.
So that was one thing that I was being asked to do. Sometimes Adult Protective Services is also asking for those evaluations. I saw that more of those questions would come around for folks who, there’s concerns maybe about age related cognitive decline, that some questions about their ability to still stay in their own home, their ability to live independently and safely and to not be taken advantage of by other people.
So sometimes Adult Protective Services or the [00:38:00] Community Services Board Agencies, they may be seeing some of the same folks and those questions would come up. So that was the primary way that I started getting involved in that. And like I said earlier, it was very difficult to find
helpful resources. I know some of them now and I’m happy to share those and share those links. But just what does this look like, if somebody said, I want to do a guardianship evaluation. What does it look like? What am I assessing? What tools are we using? What does that even mean?
And so that was how I got involved in it. At this point, I am preparing to transition a little bit more into private practice. I’m still maintaining a role in some other areas with other organizations, but I am more looking into some private practice piece. And because there has been such a lack of [00:39:00] external resources for folks for us to refer to, historically that has told me there’s this area of need.
And that is something that I will be moving into. I’m not quite there yet. I’m laying the groundwork. But it’s something that, because it has been so clear that there is a need in speaking to through with families, with community partners, with folks, National or State Guardianship Associations, Public Guardianship programs, family law firms, things like that.
Excuse me, that when I say if you need this type of evaluation, who do you call? And the answer often is, “We just hope that their medical provider or their psychiatrist can do it.”.
Dr. Sharp: Mmmh. Yeah. That seems like a tough thing to rely on at least in my…
Dr. Amber: Yes. And this is [00:40:00] no shade at psychiatrists and medical providers. But again, my conversations with them have also been who trained you to do those, and they often have said, no one. I just try to do the best I can. And so for a lot of those folks who are being asked to do them, they may not even feel comfortable doing them, but because they care about their patients, they want to do things that are in their best interest.
Sometimes people are signing off on forms or moving forward on things to be helpful, but it may not mean that there has been a really full and comprehensive assessment of somebody’s medical decision making. I’m sorry, somebody’s more comprehensive decision making outside of the treatment role that that individual may be in by nature of their relationship.
Dr. Sharp: Sure. Well, and like you said, maybe I’m just saying the same thing, a slightly different way. Those [00:41:00] providers typically I would imagine, see the individuals like in the context of having someone else there with them or with assisted decision making already. And that’s not the nature of their relationship, right? Like they aren’t going into it looking to say like, “Hey, I’m evaluating capacity here.” They’re just providing treatment.
Dr. Amber: Right. And it’s different to say, can you consent to taking this medication? Do I know if you can understand what voting is? Do I understand what it would mean for you to get married?
Dr. Sharp: Sure. Right.
Dr. Amber: My doctor doesn’t talk to me about those things.
Dr. Sharp: No, definitely not. I’ll add a little business piece to it and then I would love to transition to, what are these evals look like? What are you actually doing when you work with folks? But this little business piece is just in my very limited experience for those folks who are in private practice.[00:42:00] It has been super helpful to just get hooked into one or two attorneys who serve either as, well, usually it’s the guardian ad litem and they will reach out and say like, “Hey, we’ve got this case and we need this eval, can you? So just another one of those places where relationships with attorneys can be super helpful.
Dr. Amber: Yeah. And I would second that and also add, if there is a State Guardianship Association, that would be another place to get plugged into. Because those public guardians are the ones who might be taking on roles for folks who don’t have family members that are involved or alive or willing to help out.
And so there is this other group of people who are potentially at a high level of need because they don’t have some of those natural supports. And they might be assigned a public guardian who is getting compensated for their role. Not a lot, but those [00:43:00] guardianship, either from a statewide or nationwide agencies can be a good place to get plugged in as well.
Dr. Sharp: Sure. Well, let’s talk about what these evaluations look like. My audience, we love the details. What are you giving? What’s the process? How do you draw conclusions? So start at the beginning.
Dr. Amber: And I will say a very clear caveat, which is that the majority of the work that I’ve done has not yet been in this role of doing these more comprehensive ones. But because I’ve been starting to lay that foundation in that groundwork and learning from the work that I’ve done previously, I have some ideas, but I do not hold myself up as Amber said this is the way you do this by any… .
Dr. Sharp: Fair enough.
Dr. Amber: Yes. So for me at least in going into that, number one, in any sort of evaluation, getting a really clear sense of what the referral question is, and in this sense it [00:44:00] would be, what are the types of decisions that you’re concerned about this person making?
The reason I say that is because for a lot of people, it is typically one particular current issue that people are running into trouble with that has precipitated going down this path. And so just getting a sense of that context, what is the thing that has really pushed us in this direction? Is there a primary type of decision that you are really worried about? Is it about financial risk? Is it about you believe that this person is being taken advantage of in an intimate relationship issue? What is the concern and your worry for the person that you are trying to get this evaluation done for? So that’s going to give me some general information right there.
Dr. Sharp: I think that’s super important. And I’ll just add to, just based on my limited experience that I will [00:45:00] get, I think every one of these referral has come to, the question has always, does the individual meet the definition for an incapacitated person? And that’s a super general question. Yes, it’s a legal question and there are legal definitions of what that means. But they’re still like pretty vague, at least in Colorado. And so I do a lot of work or had to do a lot of work to like really nail down what do you want from this evaluation?
Like what are we trying to figure out? Like you said, what decisions are we concerned about? Are there situations that are risky? Whatever it might be. So like trying to get as much detail as possible. Otherwise you’re left with a very vague question.
Dr. Amber: Not only that, it may not be appropriate to do the evaluation, and that’s why it’s an important question. So I’ll give this example. Often, maybe not often, not infrequently, part of the reason somebody wants pursue guardianship is because, Person [00:46:00] A is making stupid decisions and we want them to stop doing this stupid thing. And it’s often about sex. I was going to say sex, drugs, and rock and roll.
But that’s often what it’s about. They’re leaving living facilities. They’re having sex that is predominantly, potentially risky. They are spending money on things and then they don’t have money to pay their bills. And the family’s really stressed about that. And the first part of the conversation that I want to have is pursuing guardianship going to address that concern?
For some people, they already have a payee through social security. They already may have an authorized representative for any treatment that they’re involved in maybe, but they just really want this person to stop absconding from their assisted living facility. And the question is guardianship.
How do you think guardianship is [00:47:00] going to fix that?
Dr. Sharp: Great question.
Dr. Amber: Because as a parent of a now 18 and 25 year old, I can tell you just because you have legal guardianship of someone doesn’t mean you control what their body does, right? It’s that easy, no one would run away from home. No one would get pregnant before they got married. No one would use drugs and alcohol while their adolescent brain was still developing. Right?
Like, if the magic answer was guardianship, we would have no trouble with teenagers. And I love teenagers. I’m not saying they’re problematic, but that this question of will pursuing guardianship actually address the thing that you need it to address or will we go through this whole process and you or whoever’s paying for it, pay however much money and you’re still going to be having the same problem.[00:48:00] So that’s a conversation I like to have on the front end.
Dr. Sharp: Mm-hmm. That’s a great question.
Dr. Amber: And then if it does seem to be a good referral, what is that primary reason that’s got us there? And then in the evaluation I may be looking at how are they doing and making decisions in other areas? Because again, depending on how the statutes are where people are working, there may be, are we making a recommendation for a full guardianship, a limited guardianship? Are we saying maybe this person can still vote, but they really shouldn’t be entering into legal contracts.
And so I want to be able to be making clear conversations about the scope of things, because it isn’t a one and done conversation, right? I don’t say I gave them this test, they scored in the [00:49:00] 8th, whatever percentile, therefore they need a guardian.
Dr. Sharp: Yeah. So how does that look like? Is this a series of interviews with the person and important collaterals? Is it record review, like how much cognitive or other testing are you doing? All these questions.
Dr. Amber: Exactly. Yeah. So I think getting that information about that first part of things is going to help at least start narrowing the process. So I’d say all of the above of what you just mentioned. So number one, if you’re looking at records, which you’re probably going to need to do, you’re going to need to get those records from whoever the sources are. Those previous sources may have done previous evaluations, or you may say, oh wow, we had a cognitive test done 30 years ago. Well maybe then we might want to update it. Has it changed? Is it similar?
So what comes to you in those records can help say, what may I need to look at? Are there [00:50:00] longstanding difficulties in these particular areas, or are these more new? Are they likely to change? Because that’s part of what you’re often referring to as well, as what’s the prognosis for change if we think it could change, we don’t want to put a guardian in place if it’s something that could resolve relatively quickly. So it could be records review saying where are the holes in what we have and maybe what has changed and what testing do we need to fill in the gaps? That can be cognitive neuropsychological testing potentially. That also could be looking at somebody’s adaptive functioning.
And so there’s a number of both self report or collateral report adaptive measures. There’s a bunch out there, but some sort of adaptive measure. And there’s also ones that are more geared towards somebody’s actual ability. So the difference between, I’m going to have a rating form versus I’m [00:51:00] going to hand you an envelope and ask you to address it and pretend you’re paying a bill to the electric company. Right?
So kind of an observational task based piece. Here’s three bills, here’s the amount of money in your bank account. Not real, but for pretense, how do you navigate this? You’re actually doing some kind of targeted assessment and there are some tools out there that will do that. And some you’re just maybe creating some of that assessment based on the nature of the question that’s coming up to you.
Dr. Sharp: Do you know any of those measures right off the top of your head? If not, that’s okay. There’s a way bigger conversation that we won’t get into, but this idea of like ecologically valid assessment and like what are we actually measuring with our tests? I love this idea of doing “real world tasks” as a reflection of real world ability. [00:52:00] I don’t know any measures right offhand that are fantastic at that. So I was curious.
Dr. Amber: Yeah, so offhand I will need to look and I can definitely send, we can put it in notes or things like that. The general, the ones that people are using most frequently tend to be things like the adaptive behavior assessment system, sometimes the developmental profile, which the newest version goes up to the age of 20, 21 and 11 months. So depending on the age of the person. So there’s kind of some general collateral report forms like that. But in terms of the other one, I will need to look and remind myself, I don’t want to misspeak on that.
Dr. Sharp: Sure. That sounds good.
Dr. Amber: Yeah. And then I think the other piece really is, I would say more broadly, the things that we’re going to be looking at. You might have these different areas, so financial decision making, maybe it’s voting, maybe it’s legal contracts. Maybe it’s signing a lease as an example of that. [00:53:00] And I think part of the piece that we would want to keep in mind are, we’re not really looking to assess things that would be simple consent type of topics. So I talk about this, that like are just daily living tasks that don’t carry a lot of risk.
So Jeremy, do you want to wear this blue shirt or this red shirt? Do you want Corn Flakes or Wheaties for your breakfast. These are day to day living skills that have to do with preferences that don’t carry a lot of risk. That is not the type of decisions that we’re really going to be looking at when we’re doing assessments of somebody’s decision making abilities.
Really what we’re looking at are decisions that really do require what we loosely would call informed consent. And so those would be things that carry a higher level of risk either to enter into those decisions or to reject those decisions, right? So there [00:54:00] could be a risk if I pursue this particular type of treatment or a risk to not pursue it, and do I understand what both of those are?
And so again, that is a hopefully a place to say, what are we talking about? Is it really the simple non-risky preference type decisions or are we really looking at truly something that carries some risk. The things we’re going to be assessing are more along the lines of that.
And big picture, at least in my understanding from what I’ve gathered from all these different sources are that we need to understand, number one, does the the person understand the question at hand, right? What does it mean to get married? What does it mean to sign this lease for this apartment?
What does a lease mean? What does this decision that I’m asking you to make, can you even tell me that in your own words? Do you [00:55:00] understand the task that we’re asking you? And then the person would need to know what are some of the factual information about that piece of things? Are there alternative options? What’s going to happen if I say yes? What’s going to happen if I say no? Can they explain not just what this is, but how it affects them specifically.
So it’s like when we do competency related evaluations, there’s that kind of rational and factual understanding. The same I think, applies here. What is the factual nature of the decision at hand or the types of decision at hand? And then how does that apply to my specific circumstances? Because we’re looking at their understanding. We’re looking at their ability to use that information to make the decision and then their ability to communicate that decision. Right?
So if somebody has no formal or informal ways of communicating, they’re nonverbal, they [00:56:00] don’t use written forms of communication, they don’t use talk to text, sorry, text to talk device. They don’t use eye gaze in a meaningful and consistent way, right? There’s lots of ways people can communicate with us, but if somebody doesn’t have the ability to communicate their decisions period, we can’t assess any of those other things. And so somebody’s ability to communicate how they do that, how they are able to be understood and give their preferences and consent is also part of that determination and part of that assessment along the way as well.
Dr. Sharp: So the thing that’s jumping out about these evals is that they tread outside the box a little bit, right? And that’s maybe a fault of just the way we assess [00:57:00] in general, but these questions, they make sense. They just make sense. Like, tell me how much you understand this. And it’s a very real, practical example, tell me what a lease is versus these cognitive measures that we try to extrapolate to real life. And we don’t know if that’s applicable or not, right? Like, is abstract thinking or whatever the verbal skills or fluid reasoning, how do those translate to real life? That’s a hard question.
Dr. Amber: Exactly. And I think it goes back to that point, which is, it’s not based on oh, you got a 79 on the IQ test. You just missed your decision making cutoff.
Dr. Sharp: Oh, gosh. Yeah. Right.
Dr. Amber: It’s not like that. You were so close. Try again next year. I can’t test you till then. Right? It [00:58:00] isn’t, and I think that’s where those nuances are really important. And I think when we look at that, it really is the totality of the situation, right?
And I’m not going to say it comes down to your your gut, but it’s an informed gut, right? You have the information from their history, you have the information about their current circumstances. You have some testing data. You have some information about how they’re engaging with you, how they handle the informed consent for your evaluation. You have some real world examples.
And then your statutes, they are going to tell you what that evaluation needs to include. Now, again, it’s very vague. It’ll say something like, the nature of their abilities, the prognosis of them changing, things like that. But again, it’s going to be vague. And so as an evaluator, at the very least, I think you can work backwards. You [00:59:00] can say, well, what is the requirement if somebody is going to pursue guardianship? What does the statute say that a guardianship evaluation or this report that the court is going to review?
Do I have the credentials set out legally by the statutes in my area? And what does the statute say about what that report needs to include? It’ll give you some very vague statements, and so then you need to make sure that whatever you’re doing in your evaluation processes lead you to be able to answer those questions because if they aren’t answering those questions clearly and confidently, that assessment will be useful, not useless, but not as useful in doing the very thing that it’s set out to do, which is to provide an answer on those specific questions especially if it’s a legal determination of if somebody needs a guardian or a conservator.
Dr. Sharp: Right? So moving through this process. And I just [01:00:00] want to say too, maybe as a reflection, in my experience, these are relatively labor intensive evals. I’m sure if you’re just doing them like all the time, there’s a rhythm just like anything else. But for me, there’s a lot more record review, there’s a lot more collateral interviews. You’re gathering data outside the test data to a much greater degree than other types of evals, at least for me.
Dr. Amber: Yes. And I think it goes back to what we were talking about at the, when we opened up, which is that, and of course they are, because the consequences of these evaluations, at least in my experience, are heavier than any other type of evaluation that I’ve tended to do. What happens as a result of them is a big deal.
And so it is a lot of work. You’re right. These are not, I wouldn’t imagine, unless you get your flow down really well and it’s very streamlined and you’ve got all that in [01:01:00] place and you have some format, this isn’t something people I would imagine are going to make a bunch of money and churn out super quickly on. Maybe there’s people doing it, you can invite them to have a different conversation about how they…
Dr. Sharp: Right. If that’s you, let me know, we’ll talk about that.
Dr. Amber: Yes. Please reach out.
Dr. Sharp: Right. So then where do we go from there as far as the report and what is the report saying? Are you making that determination? Are you saying, yes, this person meets the criteria for an incapacitated person. Yes, this person needs a guardian. Like what are the conclusions and even recommendations if that’s a part of it as well.
Dr. Amber: Yeah. So I think it’s going to come down to why are you doing the evaluation? Is the evaluation just going to be used to support the petition? Then you may be speaking globally about somebody’s decision making abilities, their status, all that kind of stuff.
I have done global [01:02:00] evaluations that have been reviewed by the guardian ad litem or by the folks who are assisting that family or that individual in guardianship, who then have submitted to me an affidavit and said, will you sign this? That really is based on those bullet points that are outlined in statute.
And sometimes I’ve had to come back and say like, you’re saying something that I don’t feel comfortable saying, this is what I feel comfortable saying. And so sometimes you will be asked to make something that looks a whole lot more formal and legal based on your report. And you’re saying, based on reviewing my own report, this is what I’m willing to go on record and say formally that will then be used in court as basically as evidence over and above your actual evaluation.
Dr. Sharp: I see. That’s an interesting twist. That’s never come up in the evals that I’ve done, so [01:03:00] I could see that getting a little bit dicey sometimes if they try to.
Dr. Amber: Yes. And I think, again, for folks who are familiar with making recommendations to the court or providing an opinion to the court, it’s that that fine line we’re walking where it’s ultimately not our decision. And so we’re going to make a kind of our clinical opinion. We’re going to say, to the best of my abilities, based on the information that I have, this person appears to need formal support, a formal decision maker, potentially a guardian, depending on what the requirements and statute are by how that wording is.
But then keeping in mind that ultimately if it’s going to that top level type of decision maker, about guardianship, it is ultimately a judge’s determination, not ours to be making.
Dr. Sharp: Right. That’s good to keep in mind. Gosh, I don’t know, I felt pressure [01:04:00] sometimes to say the right thing, make the right decision, but it’s a nice reminder like, we’re just a piece of this puzzle and we do the best we can. We provide the data and we provide recommendations, and then they do with it whatever they want.
Dr. Amber: Right. And I think the other piece that at least is really important to me in all of this conversation too, is that I really do, and this is full transparency. I really believe that guardianship and conservatorship should be used as a last resort. It is for a lot of reasons, but because a lot of people do not know the range of decision making options to help support somebody they care about, they just know that thing. And so I think that place of being able to educate and advocate and to provide people information to say, do you really need that? [01:05:00] Because there could be all of these other ranges of things that people could put in place that do not require you to take away somebody’s rights.
Dr. Sharp: Right. It reminds me of the conversation, this is a very imperfect analogy, but how a lot of parents will come in and think that an IEP is the magic bullet for their kids’ success at school. And we have a lot of conversations around like, well, you don’t actually probably need an IEP to get the support that you’re looking for. We could do a really robust like 504 or some intervention at school. We don’t necessarily need the IEP. It’s just a good reminder. Like people get these ideas in their minds and they’re like, I need guardianship to control this family member, but there’s a lot of other options.
Dr. Amber: And I think what happens, and this has been, is that guardianship, although its purpose in theory is very well meaning, [01:06:00] what I see happening in practice for folks when a guardian has been put in place, they become very invisible. So when they’re in a room, people aren’t talking to them. They’re no longer involving them because they are not the decision maker.
And I’ve sat in rooms where somebody is very cognitively limited, maybe does not have any verbal speech at all, maybe really is in more the severe and profound range. And I meet them for the first time and I speak to them and I introduce myself to them and I say, hey, we’re going to do this evaluation. I know that you may not be able to tell me that you understand, you may understand more than I’m able to get. But I’m really glad you’re here. I’m going to make mom or dad do most of the work for you, but I want you to listen while we’re talking and if you have any way of letting me know they’re getting it wrong, let me know.
And I [01:07:00] may know that that’s very unlikely, but I’ve had parents sit across from me and maybe their child now is 45 years old. And they have become tearful and said, “You are the first person who has addressed my child in a professional relationship in years. The fact that you said hello to them and that you treated them as this was part of their process. No one does that anymore.”.
Dr. Sharp: That’s so sad.
Dr. Amber: It is. And you’re like, that’s not good. We don’t want to do that. And so if we’re going to do guardianship, how do we still do that and keep people visible in the room, right? So if you have somebody, and that’s the other piece. Let’s say you have somebody and you’re doing an evaluation and somebody is their decision maker, somebody does have guardianship, somebody is their authorized representative, [01:08:00] how do you still approach that person and involve them in the process in a way that maintains their humanity and dignity, even though they don’t legally get to sign your paper?
Dr. Sharp: Right. That’s a great question. You gave us a great example of how to do that. No wonder are there any other tricks or tips, not tricks. I don’t want to trivialize this process. I get it. It is actually like a genuine process that you’re thinking through. But yeah. Other ways that you honor folks and talk with them in ways that are respectful.
Dr. Amber: Yeah, I think the big part is number one, just remembering that our decisions either to say yes or to say no are really important to who we are as people and that’s true for everybody regardless of a diagnosis, regardless of a communication ability, a [01:09:00] cognitive ability, our decisions and our ability to communicate those to others and have those decisions respected to the best of our abilities is really important.
So that would be one. The second piece would be diagnosis do not equate to decision making abilities. And so just because somebody has a particular diagnosis that you see on an intake or a referral form or in records, it may not tell you everything that you need to know. And so that would be the other piece.
And then I think the third piece that I just think is really important is to take seriously both yeses and nos. So if somebody’s very agreeable and they’re saying, yes, yes, yes, then I’m still going to say, so when you say yes, what does that mean? What’s going to happen? You just said you would do this, or you just signed this paper. What does this give me permission to do? And that I’m documenting [01:10:00] that and I’m being clear about that because it is important that I am treating both the yeses and nos as equally serious.
Dr. Sharp: Right. I think of everything, you’ve given us a lot of gems here today. I think that’s probably the one that I am going to take away the most is this idea that we got to pay attention to yeses just as much as nos. There’s just as much information there for us to consider. There’s been so much, I know we could keep talking about this for hours. We’re just scratching the surface. But I hope that people have taken away a better understanding of this process and how to do these evals, how to be respectful of folks, how to navigate the system a little bit better.
Dr. Amber: Yeah, and I’ll definitely share some resources kind of broad based. It is so nuanced and depending on the role people are in, I can’t say specifically what resources will be helpful to everybody, [01:11:00] but I would say next steps for folks, get familiar with what the statutes in your jurisdiction say so that you’re just really familiar with that language. And if you’re already unclear about that, get some confirmation about that part of things. And then maybe read, I’ll send over some recommendations in terms of some books that do talk about evaluating decision capacity in the way that we’ve been talking about it. That can give some just general big picture ideas.
They’re the ones that were really formative for me as I’ve been understanding this. Make connections like we both were talking about earlier. Make connections with other people who know maybe just a little bit more than you do, and then keep working on that. If it’s an area of interest, keep building those relationships, because I think that’s another place that you can really better your understanding and your ability to serve the folks that you want to serve in your community.
Dr. Sharp: That’s great. I [01:12:00] know people will have questions about how to get better at this or learn to do this. We’ll be on the lookout for those resources and put anything in the show notes that we can.
Dr. Amber: Lovely.
Dr. Sharp: This was great. Thank you for coming and chatting about all this. I really appreciate it.
Dr. Amber: Well thank you for having me. It’s fun to be able to do a brain dump of all this stuff that you gather over the years, and make use of it for some other people. So I’m glad to have that opportunity. Thank you.
Dr. Sharp: Of course. All right. Take care.
Dr. Amber: All right.
All right, y’all. Thank you so much for tuning into this episode. Always grateful to have you here. I hope that you take away some information that you can implement in your practice and in your life. Any resources that we mentioned during the episode will be listed in the show notes, so make sure to check those out. If you like what you hear on the podcast, I would be so grateful if you left a review on iTunes or Spotify or wherever you listen to your podcast.
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