The California Fiduciaries Code of Ethics and the National Guardianship Association Standards of Practice provide requirements for professional fiduciaries, which are also helpful to guide non-professional fiduciaries. The following is a summary of the broad process for conservatee and fiduciary/conservator decision making in the Code of Ethics and the Standards of Practice – of course the Code of Ethics and the Standards of Practice contain much greater coverage of these topics and each situation much stand and be evaluated separately and by itself – the below discussion about informed consent, substituted judgment and best interest covers the broad process approach. I also find it interesting that I have never heard a discussion by a Court about this or a different process for conservatee and fiduciary or conservator decision making. Comparing this to board of director deliberations, perhaps this might, at least in small part, be analogized to the business judgment rule?
1. Informed Consent – The decision should first be made by informed consent if possible.
A person’s (the conservatee’s) agreement or decision to allow or to have something happen that is based on a full disclosure of facts needed to make the decision intelligently, i.e., knowledge of the risks involved, alternatives, etc.
In other words, the individual choice or decision by the conservatee, that the conservatee is capable of making, unless doing or allowing so would violate the fiduciary’s duties to the conservatee or impose unreasonable expense to the estate.
2. Substituted Judgment – Second, if informed consent cannot be obtained, the decision is made by substituted judgment if possible.
The principle of decision making that requires implementation of the course of action that comports with the individual person’s (the conservatee’s) known wishes expressed before incapacity, provided the conservatee was once capable of developing views relevant to the matter at issue and reliable evidence of those views remains.
In other words, the decision is made or action taken or not taken, by the fiduciary, based on the ascertained desires and wishes, if any, of the conservatee, as expressed or demonstrated by the conservatee while the conservatee had capacity to so express or demonstrate, relevant to the current subject matter at issue, unless doing or allowing so would violate the fiduciary’s duties to the conservatee or impose unreasonable expense to the estate.
3. Best Interest – If informed consent, first, and substituted judgment, second, are not available or possible, the decision is made based on best interest.
The course of action that maximizes what is best for a person (the conservatee) and that includes consideration of the least intrusive, most normalizing, and least restrictive course of action possible given the needs of the conservatee.