Quis Custodiet Ipsos Custodes?¹

Appointment of Guardians for Incompetent Soldiers

By Mr. Daniel C. Brown

May 1, 2026 | Army Lawyer, 2026 Edition, Issue 1

Read Time: < 14 mins

Roman soldiers aid one another in building walled fortifications, as depicted on Trajan’s Column in Rome, a monument completed in AD 113. (Source: University of Chicago)

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan . . . .²

Members of the Army are typically understood to be strong, fit, healthy, and able to care for themselves, and the Army’s medical accession and retention standards are designed to ensure that this is the case.³ For a variety of reasons, however, this can cease to be the case for some Soldiers. Whether as a result of combat injuries, stroke, traumatic brain injury, mental disorder, or some other cause, Soldiers may become so severely disabled that they are unable to direct their own health care. Ordinarily, in such circumstances, either the Soldier or their family member has made the necessary arrangements to allow medical decisions to be made (most often by way of a durable power of attorney for health care, other equivalent document, or an order of guardianship from a state court).

In some cases, however, no prior arrangements exist, no guardian is appointed, and no family member is willing or able to undertake this responsibility. In such cases, the Service department bears the responsibility of ensuring that one or more suitable persons are appointed as guardians, if necessary, to properly direct the medical care of its members. This article will demonstrate that this unique responsibility rests on commanders; it will address the means and methods of seeking such arrangements; and, finally, it will discuss direct litigation of guardianship in the event it becomes necessary.

Establishing Guardianship as a Command Responsibility and Its Challenges

The Baseline: Commanders Bear a Moral, Statutory, and Regulatory Obligation for Their Soldiers’ Healthcare

As this article’s introductory quote demonstrates, President Lincoln’s second inaugural address recognizes the obligation of the Nation to care for its Soldiers, Sailors, and Marines.⁴ Whether they have been wounded in battle, in training, or by other means, members of the Armed Forces have offered their lives to defend this Nation, and the Nation, in return, owes them a duty to care for them. For as long as a Soldier falls within our ranks, commanders and leaders at every level in the Army bear a responsibility to their subordinates that was described by one court as “quite unique”⁵ “to protect the health, safety, and welfare of the personnel assigned to” them.⁶ This responsibility is recognized by statute:

All commanding officers and others in authority in the Army are required . . . to take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.⁷

This relatively recent statute⁸ merely reflects and codifies an understanding of the Nation’s responsibility that dates at least to 1865.

This responsibility is further clarified in Army Regulation 600-20, Army Command Policy.⁹ That regulation establishes the responsibility of “commanders at all levels” to care “for the health of their command,” including preventative medicine, medical readiness, provision of necessary medical care, and evaluation of Soldiers’ mental health.¹⁰

Moreover, this obligation is repeatedly and explicitly stated in Army doctrine on leadership.¹¹ Representative statements include that Army professionals “safeguard the health and welfare of their Soldiers;”¹² “[c]ommand also includes responsibility for health, welfare, morale, and discipline of assigned personnel;”¹³ and that “[h]aving genuine concern for subordinate health and welfare . . . is the right thing to do.”¹⁴

The Challenge: Lack of Authority to Direct Care

Notwithstanding commanders’ broad responsibility for their subordinates’ health and welfare described above, explicit authority to make medical decisions on behalf of those subordinates is limited. AR 600-20 authorizes commanders to direct, with or without a Soldier’s consent, emergency medical care, immunizations, isolation and quarantine, detention for medical care, limited care for behavioral disorders, diagnostic and other examinations, and for obtaining evidence.¹⁵ Conspicuously absent is general authority for a commander to direct a Soldier’s medical care.

A Soldier’s Incapacitation Does Not Grant This Authority

Taking this challenge a step further, no law, policy, or legal precedent yet exists directly addressing the question of commanders’ authority to direct the medical care of an incompetent member of their command. The closest analogy in existing law is in the context of inmates who have been found mentally incompetent to stand trial, specifically in the context of a state seeking to administer antipsychotic drugs to render such an inmate competent to stand trial or for other reasons. The most recent Supreme Court decision on this question is Sell v. United States.¹⁶

Sell opens its analysis by addressing prior precedent. It notes, “In [Washington v.] Harper, this Court recognized that an individual has a ‘significant’ constitutionally protected ‘liberty interest’ in ‘avoiding the unwanted administration of antipsychotic drugs.’”¹⁷ The Harper Court in turn held that “the Due Process Clause permits the state to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.”¹⁸

Sell next addressed Riggins v. Nevada, in which “the Court repeated that an individual has a constitutionally protected liberty ‘interest in avoiding involuntary administration of antipsychotic drugs’—an interest that only an ‘essential’ or ‘overriding’ state interest might overcome.”¹⁹ The Riggins Court similarly held that such treatment would have been appropriate if it “was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins’ own safety or the safety of others.²⁰

Sell’s analysis recognizes that individuals have a liberty interest in avoiding involuntary administration of medical treatment—an interest so great that only an “essential” or “overriding” government interest may overcome it. While treating an inmate for his own safety or that of others would likely reach that level, it “may be rare” that the interest of rendering a defendant competent to stand trial will rise to that level.²¹

While Soldiers accept limitations on their constitutional rights, it cannot be the case that they possess “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men”²² to a lesser degree than an inmate in a state mental hospital. Therefore, it seems improbable that the Army would have greater latitude in administering or directing medical care without their consent than a state mental hospital would. Moreover, should the Army assert military necessity as a basis for providing medical treatment without a Soldier’s consent (perhaps pursuant to AR 600-20, para. 5-4g(5)²³), and thus that its judgment is entitled to deference, this position is likely to be met with skepticism by the courts. Courts have historically accorded substantial deference to the executive agencies’ positions, and particularly the military departments.²⁴ However, “Although courts accord substantial deference to an agency’s final action and presume it valid, the rational basis standard ‘does not reduce judicial review to a rubber stamp of agency action.’”²⁵

What to Do? The Path to Identifying or Establishing a Guardian

It is anticipated that Soldiers so severely disabled as to be unable to make medical decisions on their own behalf will soon undergo disability separation. As a result, the commander’s responsibility in this regard will be relatively short-lived. However, “relatively” is an essential qualification in the preceding sentence; the Department of War target is to complete the disability evaluation process within 180 days from referral into that process,²⁶ and all of the Services routinely exceed that target.²⁷ Moreover, referral into the disability process is not immediate, and the lack of an individual with the ability or authority to direct the Soldier’s medical care may delay it. As a result, a commander may well be responsible for such a Soldier for a year or more. The Soldier’s condition may warrant transfer to a Soldier Recovery Unit, but such a transfer merely moves the problem from one commander to another.²⁸

Appointment of a legal guardian is not necessary for a Soldier to proceed through disability processing; Army regulations authorize the next of kin to make decisions on the Soldier’s behalf throughout that process, even if not formally appointed or qualified as a guardian under applicable state law.²⁹ But while such a family member may make administrative decisions on the Soldier’s behalf throughout the disability process, their family status does not, in itself, authorize them to direct the Soldier’s medical care, and any Soldier in this situation is almost certain to require extensive ongoing medical care during and after the separation process. While the Soldier’s post-separation medical care is not the commander’s concern, the commander remains responsible for the Soldier’s medical care while in service.

Determine Whether an Authorized Person Already Exists

The commander’s first step would naturally be to ascertain whether the Soldier has already executed a durable power of attorney for health care, an advance directive, or an equivalent document, giving some other person the power to make medical decisions on that Soldier’s behalf in the event of that Soldier’s incapacitation. If the commander is able to identify an authorized person and validate that that person has been named in an appropriate document, the commander’s responsibility is satisfied in this regard. The suggestions below may assist the commander in locating an authorized person.

Ask the Soldier

At the risk of stating the obvious, if possible, the commander should ask the Soldier whether the Soldier has designated another person to make medical decisions; if so, by what means; and the location of any relevant documents. This, of course, depends on the Soldier being willing and able to communicate, and having sufficient presence of mind to answer these questions accurately; either or both of these may well be in question given the Soldier’s condition. However, it is often the case that a Soldier may have periods of lucidity in which these questions may be answered.

Consult with Next of Kin, If Any

If the Soldier cannot answer these questions, the commander’s next step would be to consult with the Soldier’s next of kin, determined by means of the Department of Defense Form 9330 if otherwise unknown. The commander may also ask any known friends or associates of the Soldier if they know whether the Soldier named an individual to manage such affairs.

Consult with the Installation Legal Assistance Office

Installation legal assistance offices routinely prepare healthcare powers of attorney, advance directives, and other such documents on behalf of Soldiers and dependents.³¹ If the commander has been unable to determine from the Soldier or the Soldier’s family or friends whether such a document exists, contacting the installation legal assistance office (and, perhaps, the legal assistance offices of prior installations at which that Soldier served) could be the next step. Legal assistance offices are required to record these services in Client Information System. As a result, the office should be able to easily determine whether it has prepared such a document for the Soldier. If so, the office may have an electronic copy from which the commander could learn whom to contact.

Determine Whether the Soldier Can Validly Name Someone

The requisite mental capacity to execute a durable power of attorney may not be the same as that to be deemed mentally competent to make medical decisions. This distinction is explicit in the Uniform Health-Care Decisions Act of 1993,³² as enacted by New Mexico: “A determination of lack of capacity under the Uniform Health-Care Decisions Act shall not be evidence of incapacity under the provisions of Article 5 of the Uniform Probate Code.”³³ Under this uniform act, capacity “means an individual’s ability to understand and appreciate the nature and consequences of proposed healthcare, including its significant benefits, risks and alternatives to proposed healthcare and to make and communicate an informed healthcare decision.”³⁴ Under its 2023 revision, mental capacity to appoint an agent under a healthcare power of attorney requires only that the Soldier “recognize[] the identity of the individual being appointed or identified and understand[] the general nature of the relationship.”³⁵ These standards are markedly different, and it may be the case that a Soldier lacks the former capacity while still possessing the latter.

The above are illustrative examples; as the relevant subjects are questions of state law, the standards for mental capacity in each context will vary from state to state. If the Soldier meets the latter standard but not the former, a healthcare power of attorney, advance directive, or other suitable document can be prepared on that Soldier’s behalf. Determining whether this possibility is viable will require careful consideration of the Soldier’s condition and a thorough analysis of the relevant state statutes. It should be undertaken by experienced legal assistance personnel. The attorney representing the Soldier in question should carefully document the circumstances leading the attorney to believe the Soldier possesses the necessary mental capacity, and should consider requesting the presence of a witness, such as a paralegal, during client meetings. Should the validity of the instrument, or the Soldier’s capacity to execute it, be questioned in the future, that witness may provide evidence supporting the Soldier’s capacity.

Seek to Assist a Willing Family Member

Suppose no appointing document is found, and the Soldier is unable or unwilling to appoint an agent. In that case, the commander should consult with the Soldier’s next of kin, if possible, to determine whether that individual or some other family member or friend is willing to seek an appointment as a guardian. In this case, while the commander cannot directly act to appoint the individual in question, that individual can be directed to various resources to assist in that process.

Team members prepare life-saving equipment at Belvoir Hospital, which contains a Warrior Pavilion for wounded and ill Service members. (Credit: Reese Brown)

A family member or other person willing to act in this capacity may consult with the installation legal assistance office, the Department of Social Work (DSW) at the relevant Military Treatment Facility (MTF), and/or the appropriate state agency for assistance if needed. The individual will often be eligible for legal assistance under Army Regulation 27-3, para. 2-4(a)(6)³⁶ as a dependent, and should first be directed to the installation legal assistance office. That office can then engage other resources (including DSW and/or the appropriate state agency) as required. Legal assistance may also be able to refer the individual to local counsel on a pro-bono or reduced-fee basis, as it is likely that services beyond the appointment of a guardian will be needed.

Subject to resource constraints and local policy, installation legal assistance offices may be authorized to represent eligible family members under the Expanded Legal Assistance Program, potentially including representation in court.³⁷ This would, if available, eliminate or mitigate the need for outside local counsel.

Engage an Appropriate State Agency

“Every State provides avenues through which, for example, a doctor or institution can seek appointment of a guardian with the power to make a decision authorizing medication—when in the best interests of a patient who lacks the mental competence to make such a decision.”³⁸ Many of those states have established agencies to assist with such matters (e.g., the Georgia Department of Human Services³⁹); the commander, in consultation with the servicing judge advocate (JA) (and, in most cases, the DSW at the relevant MTF), should attempt to engage their services when possible or relevant.

Most states serve as “public guardians,” or guardians of last resort.⁴⁰ “Public guardians are last resort guardians to incapacitated persons subject to what is already a last resort legal mechanism (guardianship) when no suitable alternative options are available to address the person’s needs.”⁴¹ “The latest comprehensive study [conducted in 2005] shows that every state except Nebraska and Wyoming, and the District of Columbia, has some form of public guardianship.”⁴² That study defined public guardianship as “the appointment and responsibility of a public official or publicly funded organization to serve as legal guardian in the absence of willing and responsible family members or friends to serve as, or in the absence of resources to employ, a private guardian.”⁴³ “[T]he overwhelming majority of state statutes provide services to incapacitated individuals who are determined to be in need of a guardian under the adult guardianship law but have no person or private entity qualified and willing to serve.”⁴⁴

Patient pods at an emergency alternate care facility near Joint Base Elmendorf-Richardson, Alaska. (Credit: Rachel Napolitan)

A combination of the above mechanisms should resolve any case. Ordinarily, the appointment of an individual known to (and, if possible, chosen by) the Soldier would be preferred; if this is not possible, the state can and should operate as the guardian of last resort. Should all of these fail, however, the guidance below will be relevant.

Commence Guardianship Proceedings

If all of the above fail, the commander, through the servicing JA, may need to commence guardianship proceedings. This is believed to be a novel suggestion; no cases or secondary materials have been found addressing this possibility. However, should the state fail to act in accordance with its obligation as a public guardian, or should the Soldier’s case not fall within the parameters of that program, this provides the commander with an avenue of last resort to see to the Soldier’s care.

Jurisdiction and Applicable Law

While guardianship is ordinarily the province of state law and thus state courts, the U.S. Government is constitutionally unable to subject itself to the jurisdiction of a state court: “It seems plain, therefore, that the government could not, in the absence of congressional authorization, intervene as a party to the action in the state court; no officer of the government being clothed with authority to subject it to the jurisdiction of a state tribunal.”⁴⁵ Therefore, rather than commencing the action in state court, the Army would be required to institute proceedings in a U.S. District Court. Such courts “have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof,” unless otherwise provided by statute, and thus would have jurisdiction over the proposed action.⁴⁶

Under the Erie doctrine,⁴⁷ as no Federal common law or statute governs guardianship,⁴⁸ the substantive law of the relevant state will apply to this guardianship action. This will ordinarily be the law of the state where the Soldier is located.

Standing

As with any question of state law, significant variation exists among jurisdictions. However, typical state statutes provide that “any interested party,”⁴⁹ “any interested person,”⁵⁰ or “a person interested in the individual’s welfare”⁵¹ may petition a court for the appointment of a guardian. While no litigation on the question has been found, the commander’s responsibility for the Soldier’s healthcare would appear to constitute such an interest.

Procedure

When any Army activity is considering commencing a civil action, including an action for guardianship, the servicing JA should immediately contact and coordinate with Litigation Division. The chief of Litigation Division is responsible for supervising litigation in which the Army is interested, acting for The Judge Advocate General on litigation issues, and serving as the primary contact with the Department of Justice on litigation.⁵² The servicing JA in such cases should prepare a litigation report and forward it to Litigation Division.⁵³ Litigation Division will then engage with the local U.S. Attorney’s office to commence the action in the appropriate district court.

Conclusion

Commanders bear a statutory, regulatory, and moral obligation to ensure their Soldiers’ medical care, all the more so when those Soldiers are so severely disabled as to be unable to make decisions on their own behalf. Awareness of this potential issue will ensure that JAs can advise their commanders appropriately to fulfill this responsibility as long as their Soldiers remain in the service. TAL

Notes