The U.S. Constitution guarantees a person can't be deprived of "life, liberty or property" without due process. State law allows a court to appoint a guardian for people who are incapable of making responsible decisions.
Utah Commission on Aging director Maureen Henry says: the statute is vague enough to be problematic, What, for example, does "responsible decisions" mean?
During the past 50 years, the courts have emphasized the due process rights of adults who are mentally ill — requiring that a person admitted to a psychiatric facility be brought before a judge to assure that his confinement is justified; the burden is on the state to prove that the commitment is necessary. But there's no similar system protecting the elderly, charges Henry, who as an attorney specialized in elder law.
If an old person is put in a nursing home or locked Alzheimer's unit and she doesn't want to be there, the burden is hers to work her way out, not on the state to prove to a court that she needs to be confined. And in legal matters, Henry notes, the person who bears the burden of proof is more likely to lose.
Henry says: That's not to say that families or facilities are ignoring the law. But there is no system in place to deal with the complexities of self-determination for old people — "and that forces everyone, nursing facilities, patients, families, caseworkers, into that gray area where no one is really clear about what is right and wrong."
There's no one whose job it is, at any level of government, to look at the folks in nursing facilities or locked units of assisted living facilities to make sure that they either agree to be there or that they were admitted following legal procedures.
Old people are often talked into — occasionally even tricked into — moving into nursing homes and assisted living facilities by well-meaning relatives. In the vast majority of cases, family members don't even try to get guardianships before admitting an elderly relative to a facility, because it's not clear under what circumstances they should, and they're expensive.
It's pretty easy for a family member to get uncontested guardianship, the experts agree (although it can cost thousands of dollars in legal fees). When the Deseret News went to court to watch guardianship proceedings, it was startling how quickly someone could be stripped of all decision-making rights. Once the paperwork is in order, "hearings" average seconds, not minutes.
Full Article and Source:
Who should make choices for the elderly?
Utah Commission on Aging director Maureen Henry says: the statute is vague enough to be problematic, What, for example, does "responsible decisions" mean?
During the past 50 years, the courts have emphasized the due process rights of adults who are mentally ill — requiring that a person admitted to a psychiatric facility be brought before a judge to assure that his confinement is justified; the burden is on the state to prove that the commitment is necessary. But there's no similar system protecting the elderly, charges Henry, who as an attorney specialized in elder law.
If an old person is put in a nursing home or locked Alzheimer's unit and she doesn't want to be there, the burden is hers to work her way out, not on the state to prove to a court that she needs to be confined. And in legal matters, Henry notes, the person who bears the burden of proof is more likely to lose.
Henry says: That's not to say that families or facilities are ignoring the law. But there is no system in place to deal with the complexities of self-determination for old people — "and that forces everyone, nursing facilities, patients, families, caseworkers, into that gray area where no one is really clear about what is right and wrong."
There's no one whose job it is, at any level of government, to look at the folks in nursing facilities or locked units of assisted living facilities to make sure that they either agree to be there or that they were admitted following legal procedures.
Old people are often talked into — occasionally even tricked into — moving into nursing homes and assisted living facilities by well-meaning relatives. In the vast majority of cases, family members don't even try to get guardianships before admitting an elderly relative to a facility, because it's not clear under what circumstances they should, and they're expensive.
It's pretty easy for a family member to get uncontested guardianship, the experts agree (although it can cost thousands of dollars in legal fees). When the Deseret News went to court to watch guardianship proceedings, it was startling how quickly someone could be stripped of all decision-making rights. Once the paperwork is in order, "hearings" average seconds, not minutes.
Full Article and Source:
Who should make choices for the elderly?
5 comments:
The elderly should make choices for themselves. It's sad when they can't/don't execute advance directives.
It's even sadder when corrupt judges ignore advance directives.
Having advance directives is not a guarantee that your wishes will be acknowledged or granted. Many guardians with court approval, disregard/dismiss previously executed documents, including wills.
But it is better to have the legal papers if needed, at least you would have some ammunition in your belt.
Interesting - "the person who bears the burden of proof is more likely to lose".
That sums up a big problem - the wrong person bears the burden of proof. The system has twisted it so that the innocent bear the burden of proof and it's almost impossible for them because of the enormous and overwhelming expense of litigation.
As much as we hate it that money rules, it does.
"When the Deseret News went to court to watch guardianship proceedings, it was startling how quickly someone could be stripped of all decision-making rights. Once the paperwork is in order, "hearings" average seconds, not minutes"
This guardianship racket is comparable to the assemblyline system of branding livestock, isn't it?
"The U.S. Constitution guarantees a person can't be deprived of "life, liberty or property" without due process.
State law allows a court to appoint a guardian for people who are incapable of making responsible decisions."
In the GREAT STATE OF ILLINOIS, we do it better!
People who are incompetent and/or people with PHYSICAL DISABILITIES (no, there isn't a list of specific disabilities) is a prime candidate, eligible to be dragged through the court system, stripped of all civil rights, and just like that, within seconds, get labeled a WARD, assigned a guardian of person and estate, til death do they part.
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