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March 28, 2024

Poverty Masquerading as Incapacity

Nicole Shannon, J.D.
The PDF for this issue which includes footnotes and endnotes can be found at here.

Hector is in his late 80s. Recently widowed, his only source of income is Social Security. He’s struggling to keep up with his utility bills. Hector’s hip and knee pain make it difficult for him to do things that he used to do, like shovel the sidewalk or cut the grass. Paying for a landscape company to handle these tasks is not affordable. Without a ramp, it is difficult for Hector to get in and out of the house. Hector sticks to a strict budget on groceries. His refrigerator and cupboards have few items, and they are sometimes out of date. Hector has a toothache that has been bothering him for weeks, but he cannot afford to see a dentist.

Is Hector showing signs of diminished capacity? Or is he simply one of the many older adults living in poverty? This article will examine how poverty and aging masquerade as incapacity for older adults. We will examine why it matters, and most importantly, what we can do as practitioners in the law and aging community.

How Poverty and Aging Masquerade as Incapacity

Older adults living in poverty must contend with the dual prejudices of society. One result of ageism is assuming that older adults are incapable of handling their own affairs and need to be stripped of independence and autonomy for their own protection. Likewise, society places harsh value judgments on people living in poverty and how they spend their money. Combined, these prejudices combine to treat low-income older adults as incapable of handling their own affairs, and morally incorrect in their attempts to do so.

When we consider the “hallmarks” of incapacity that are frequently used to restrict the independence and autonomy of older adults, the “hallmarks” can look a lot like living in poverty. To an outsider, it may look like Hector is dealing with dementia. He’s an older adult with unpaid bills, a home that’s unmaintained, expired food, and unaddressed medical issues. To people who are more familiar with poverty dynamics, Hector’s situation can be seen for what it is: an older adult who is living in poverty and must make difficult—sometimes impossible—decisions about his financial priorities.

Many older adults are living in poverty or close to it, and race and gender play a role. Racial minorities and women are more likely to live in poverty than other demographics. Adults aged 65 or older had an overall poverty rate of approximately 10.3% in 2021, and the subset of adults aged 80 or older have a poverty rate of about 12.9%. The 2021 poverty rate for Hispanic adults aged 65 or older is 18.7%, Black adults aged 65 or older is 17.8%, and white adults not identifying as Hispanic at 8.0%. Women aged 65 or older in 2021 were more likely than their male counterparts to live in poverty.

Why this Matters

For those of us in the aging and law community, we know that judgments about capacity can lead to restricting independence and autonomy. We make life changing decisions based on our perceptions of capacity—and we might be wrong in those perceptions. By addressing the poverty issues, those “hallmarks” of incapacity may vanish.

For Hector, a well-meaning family member or adult protective services worker might conclude that Hector needs restrictions instead of support. The first thought may be that Hector needs to move into a more restrictive setting, perhaps with a guardian or power of attorney making choices for him. After all, Hector would be fed, receiving the medical attention that he needs, and would no longer need to maintain his home.

But all of this comes at a tremendous cost to Hector, particularly when there is no indication that this is a capacity issue—simply a poverty issue. Hector could connect with social service organizations that can provide utility assistance and help with the sidewalks and lawn. Hector may be eligible for Supplemental Nutrition Assistance Program, Commodity Supplemental Food Program, meals on wheels, or other food programs. Because Medicare does not cover dental benefits, Hector may need information on community dental clinics that will provide him with the care he needs. Finally, a ramp may allow Hector to participate in the community more easily. All of this would keep Hector in his home, and in charge of his own affairs.

What Can We Do About It?

As leaders in the aging and law community, there are two primary things we can do address poverty and aging masquerading as incapacity: Reframe and Empower.

To reframe, the ABA Commission on Law and Aging’s Assessment of Older Adults with Diminished Capacities provides some guidance. Attorneys using the resource are encouraged to recognize and address implicit bias. Given the racial and gender disparities for older adults living in poverty, addressing implicit bias may be particularly important. One of the tools identified in the publication is Five Habits of Cross Cultural-Lawyering, which encourages lawyers to consider “alternative explanations for observed phenomena.” In considering alternative explanations, Hector’s situation may be correctly attributed to poverty as opposed to diminished capacity.

Finally, we can empower Hector and others to seek assistance. We can focus on solutions to the issues Hector faces, while keeping Hector in control. The PRACTICAL Tool for Lawyers provides guidance on how to support clients in addressing the specific challenges they face. Most importantly, the tool also requires that a lawyer “identify abilities.” By focusing on Hector’s abilities, we can avoid erroneously attributing his situation to diminished capacity as opposed to poverty.

For too many older adults, getting help can be punitive. We must empower older adults to seek help by demonstrating that help can mean maintaining independence and autonomy instead of destroying it. This requires a culture change. As leaders in the field, we must walk the walk by empowering people to seek help and then providing it while keeping people in control of their lives. This means strengthening home and community based services, stopping unnecessary guardianship and conservatorships, and adopting a truly person centered approach to the aging community.

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