National Aging and Law Conference
Please join us for the 2022 Virtual National Aging and Law Conference on November 9,10 and 11th. The program includes 9 hours of CLE, including 90 minutes of ethics.Registration cost are $125 for ABA Members, and anyone in the non-profit or government field. Details and registration are available now at https://www.americanbar.org/events-cle/mtg/web/425362078/.
Focus on Human Rights
In the July/August issue of Bifocal my colleague Elizabeth Moran talked about progress around the world on recognizing freedom of choice as an essential human right. A right that either cannot be curtailed or should only be limited under the most extreme of circumstances. The United States lags behind in recognizing choice as an essential human right for persons with neurodiversity. Taking away or limiting the rights of an adult with neurocognitive differences often happens with little due process, and with no consideration of alternatives that empower the person and limit the ability of others to harm them. Her attendance at the World Congress on Adult Capacity inspired new levels of advocacy. (Thank you again to the donors who made that trip possible.)
Due process and human rights abuses in guardianship is not a new issue, but it is receiving renewed attention. Back in 1987, Congressman Claude Pepper said in a hearing that the average person subject to guardianship, “has fewer rights than the typical convicted felon”, the abuses that he described in 1987 are still far too common today.
Let me offer a few examples from what I have read and heard recently.
A blog posting recently caught my attention. It described a neighbor in his 90’s who is usually out on his front porch at sunrise. One morning he wasn’t there at 8:00 or 9:00 or 10:00 AM. Knocking on his door brought no response. Neighbors could hear his phone ringing and there was no answer. His daughter was called, the fire department arrived and broke in and found the neighbor, sound asleep on his good ear. As a precaution he was taken the local hospital, the doctors checked him over and wanted to hold him overnight for observation. He said, no, he wanted to return home. He called his daughter who took him home against medical advice. Bravo for her honoring her father’s clear choice.
One of the comments on the post rang of paternalism, “The daughter has reached that stage in life where she's having to recognize that she, rather than her father, will have to make the decisions.” NOT as long he is able to understand the risks of the choice he is making. His essential human rights, include the right to make choices, and few choices are more fundamental than where a person wants to live and what care they wish to receive.
It is too easy and too common to disregard the human right of freedom of choice of adults who are older, or unwell, or disabled, or who ask for support. An advocate recently told me about a call from a resident in a health care facility who was pleading to go home. After verifying that there was not a Court order preventing the person from making that choice, the advocate helped the person pack and book a taxi to go home. Health care facilities are not prisons.
But isn’t it necessary?
I was talking with an advocate recently, and I said, my views on guardianship reform are becoming more radical. He replied, “but, there are times when we use guardianship to stop abuse.” Sadly, we do that because it is easier to take away the rights of the person who is experiencing abuse, neglect, or exploitation, than it is to limit the rights of person who is hurting the person.
Let me offer a couple of examples to illustrate.
Fred owns and operates a corner store. A thug walks into the store in the middle of the afternoon and demands money. Fred says no, but the thug empties the cash drawer. The police are called, Fred reopens the store a couple of hours later being advised to lock the cash drawer, limit cash on hand, and to try to have a second person with him when possible. The police track down the thug, arrest and prosecute him. The thug loses his rights and freedoms.
Barney is living with dementia and owns the house behind Fred’s store. The same thug is helping Barney write checks and writes himself a large check on Barney’s bank account. When Barney’s electric bill goes unpaid because of the money that was stolen, adult protective services and the police are called. When confronted the thug claims it was a gift. Barney has difficulty describing his side of the facts and the police decline to prosecute. The police classify the money as a civil or family matter. APS argues that Barney should move to a dementia care facility or skilled nursing home, and he refuses. It is decided that Barney is not acting in his best interest and a guardianship action is filed against him. Based on the dementia diagnosis, the judge barely looks at the folder before signing the order taking away Barney’s constitutional rights.
This system is stacked against Barney. Both Fred and Barney were robbed. One fact pattern results in punishing the perpetrator, one takes away the rights of the victim (I hate the word victim, but it fits here.) It is easier to take away Barney’ rights, than it is to take away the rights of the thug who harmed him. Why not get a restraining order against the thug? Bring in someone trustworthy to help Barney manage his finances. Arrange in home companionship and help. Have Barney spend afternoons with his old friend Fred next door. It is time we focus the burden of abuse on the person who commits the act of abuse.
Reforming the system to protect the basic rights of choice, will involve a lot of changes. We need to think outside the box. All too often the response to proposals for change is “that won’t work, or that is not practical.” We need to think about what else needs to be changed to protect a person, without taking away that person’s rights and freedoms. This will require more than amending guardianship statutes, it involves rethinking what it takes to empower adults who need support.
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U.S. Congress, 1987, Abuses in Guardianship of the Elderly and Infirm: A National Disgrace: Hearings Before the Subcommittee on Health and Long-Term Care of the Select Committee on Aging, 100th cong., 1st sess., 5-10, 8 (statement of Claude Pepper), http://files.eric.ed.gov/fulltext/ED297241.pdf .
Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination, National Council on Disability, 2018, https://ncd.gov/sites/default/files/NCD_Guardianship_Report_Accessible.pdf