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A Guardian's Guide to Custody of the Person

By Victor Garlock

Under Chapter 35A of the North Carolina General Statutes, the Clerk of Court may find a person to be an incompetent adult upon being presented with clear, cogent and convincing evidence that she can no longer make decisions regarding her affairs and her person.  Upon such a finding, the Clerk will appoint a Guardian of the Person, Guardian of the Estate and/or a General Guardian, who handles the responsibilities of both.  N.C.G.S. § 35A‑1241 provides, among other things, that the Guardian of the Person/General Guardian has custody of the person of the ward.  But when persuasion and reason fails, how is a guardian to take custody of an unwilling adult?

Louise suffered from schizophrenia for most of her adult life. She was also diabetic. However, she controlled both conditions with medication.  She enjoyed a career as a nurse until she retired.  In her seventies, she began to have symptoms of dementia.  The dementia reduced the effectiveness of the medication she took to control her schizophrenia.  She became paranoid and began suffering from delusions.  She stopped taking her insulin.  Eventually, the Court found her to be an incompetent adult and appointed me as her General Guardian.

I arranged for Louise to move to a group home.  Because of her increasing dementia, finding the right medication and dosage to control her mental illness was extremely difficult.  As a result, Louise became increasingly paranoid, to the point that she was convinced that the insulin injections she needed to control her diabetes were poison and she refused to take them.  She also increasingly suffered from delusions which included hearing and talking to people that were not there.

One Saturday morning, I received a call from the administrator of Louise’s group home.  Louise had refused insulin shots for over a day.  Also, she had been up all night yelling and screaming at people only she could see.  No one in the group home had been able to sleep.  The administrator and I agreed that Louise needed to go to the hospital.  The administrator called an ambulance.  I drove to the home with my original Letters of Appointment as General Guardian for Louise, the court issued document, bearing the raised seal of the court, evidencing my authority to have custody of Louise’s person.

When I arrived at the group home, the paramedics and a police officer were standing outside.  The police officer told me that Louise did not want to go to the hospital.  I produced my Letters and attempted to explain that Louise was an incompetent adult, which meant that the court had decided that Louise could no longer make decisions about going to the hospital and had granted me the authority to make that decision for her.  I further explained that the Court’s order had granted me custody of her person, which allowed me to move her to the hospital over her objection. 

Despite my explanation, the police officer and paramedics refused to take Louise to the hospital as long as she was conscious and refused to go.  The only way they would forcibly take her to the hospital was with a commitment order.  It being a Saturday, I had to go to the magistrate’s office, where I swore that Louise was a threat to herself because she would not take her insulin.  The police and ambulance returned to the group home and took Louise to the hospital.

The incident with Louise points out the practical difficulty of taking custody of an adult person.  How exactly is a guardian supposed to do that when the adult person does not wish to be taken into custody?  In the case of Louise, it required the brute strength and handcuffs of law enforcement.  Theoretically, my Letters of Appointment, backed by North Carolina law granting me custody of her person, gave me the authority to force Louise to go to the hospital.  But without the cooperation of the police and paramedics, I had no means to enforce my authority.  Since the police were willing to help me if I obtained a commitment order, and obtaining one under these circumstances was possible, quick and relatively easy, that is the option I chose.

Robert and Barbara were university professors.  They retired to North Carolina and lived here for many years.  When the Court appointed me General Guardian for each of them, they were both suffering from dementia.  They still lived in their home, but it was a terrible mess.  Rotting food and garbage were everywhere, with the accompanying vermin of various sorts.  They were hoarders, so every room was filled with clothing, newspapers, magazines, old mail and household goods, among other things.  They were un-bathed and their clothes were filthy.  Worst of all, they had one bathroom in which the toilet had ceased to function.  In their confused state, they did not call a plumber to fix it.  Instead they went in garbage bags, which they piled in a spare bedroom.

Robert and Barbara would not allow anyone into their house to clean it.  Nor would they allow caregivers to assist them.  Under these circumstances, it was clear that they could not continue to live in their home.  I needed to move them to an assisted living facility; however, they refused to consider leaving their home.

While I was weighing my options, Robert became ill and collapsed.  He was admitted to the hospital.  From there, I had him admitted to an assisted living facility.  I made sure to select a facility with a locked ward and a space for Barbara.

After Robert had a few days to settle in at the assisted living facility, my geriatric care manager invited Barbara to come with her to visit Robert.  The care manager led Barbara into the locked ward, where she visited with Robert.  After a while, the care manager told Barbara that she was going to be staying and that the facility was her new home.  Barbara did not take kindly to that idea and expressed her displeasure loudly and with colorful language.  We had, of course, prepared the staff of the facility for our ruse.  We had also obtained a prescription for a tranquilizer.

The care manager visited with Barbara the next day.   Barbara greeted her like a long lost friend.  She told the care manager about the wonderful breakfast she had enjoyed at the facility.  She had very much enjoyed a hot shower with the assistance of staff.  Barbara had completely forgotten the ruse and her anger.

Barbara and Robert’s story demonstrates two other means by which a guardian may gain custody of an incompetent adult.  A hospital admission effectively places the ward under the guardian’s control.  In most cases, the ward does not have the wherewithal to leave a hospital without assistance.  The guardian simply documents his authority with the hospital staff, who then will only discharge the ward to a facility of the guardian’s choice.  Robert’s collapse, while unfortunate, was fortuitous in that, when the ambulance arrived, he was unconscious and unable to object, making his hospital admission timely and easy to accomplish. 

I have also had wards with chronic conditions whose doctors have agreed required hospitalization.  My geriatric care manager took the ward to the doctor, who then convinced the ward to go to the hospital.  Once in the hospital, it was an easy matter to admit them to a facility.

My ruse to move Barbara had the advantage of the prior admission of her husband.  In other cases, my geriatric care manager has invited the ward to lunch at the facility.  At the end of the meal, the care manager tells the ward that she is staying.  Again, we always prepare the facility staff and obtain prescriptions for tranquilizers.  Every time I have resorted to these means, the ward ultimately is not only better off physically, but is happier than she was in the home she was refusing to leave.

Such trickery makes many people uncomfortable.  It makes me uncomfortable too, and I do not engage in it lightly.  I submit that, under circumstances such as Barbara’s, trickery is the best possible option.  A commitment order might not be honestly attainable under such circumstances, since there may not be an immediate danger to self or others.  Further, such an order can and does end in handcuffs and admission to a geriatric psychiatric ward, a traumatic experience for anyone, but especially for a person suffering from dementia.  Further, such an order can make it difficult to find placement for the ward in a long term care facility, since it brands them as a difficult person.  Assisted living and skilled care facilities can be reluctant to admit such people.  On balance, trickery is the kinder and more effective means of taking custody of a ward.

Of course, reason and persuasion are the first choices of a guardian when trying to take custody of a ward.  But when that fails, a guardian must be willing to take the necessary steps to ensure the safety and wellbeing of the ward.