In the
United States, all adults are considered legally capable of making
decisions regarding their personal and financial affairs unless a court
of law determines otherwise.”
— National Association for Court Management, "Adult Guardianship Guide"
 |
| Bill Lee |
This story is about the otherwise.
Bill Lee, a World War
II veteran, “worked like a donkey” his entire life. By the time he
collapsed alone in his Roanoke County house in 2014, Lee owned $5
million worth of rental homes; vacant lots crammed with cars, trucks and
construction equipment; and warehouses stuffed with a lifetime of deal
making.
Now at 86, Lee is forbidden by law to step onto
any of his properties, including the home he lived in for nearly 50
years, unless his family permits him to do so. Lee signed a legal
document several years ago expressing his desire for his family to
manage his affairs. Now he thinks they are mismanaging his holdings.
A judge disagrees. And as doctors testified
during two days of hearings and through a stack of depositions in two
court files, Lee’s brain can no longer process indisputable evidence
that runs counter to his beliefs.
Lee dismisses that medical verdict and is
appealing the judicial one. He clings to one fact he’s certain is true:
This is no way to treat an old man.
Last year, guardians, whether family members or
public agencies, directed the lives of 10,356 Virginians. The number of
people requiring guardians has increased with each passing year and has
risen nearly 50 percent since 2011.
Lee has wealth, though he’s spent more than
$100,000 of it on lawyers this year alone, and he has family willing to
care for him, though he doesn’t want them to.
Just the opposite can be found a half-hour drive
from Lee’s room at the Virginia Veterans Care Center. A handful of
elderly patients make their home at Catawba Hospital because they have
no place to go, and no money or family to look after their welfare. They
need what Lee has but doesn’t want: someone authorized to make
decisions for them.
Like Lee, they are no longer capable of managing
their own lives. But unlike Lee, they’re paupers, and no one they know
is willing to help. So they wait at a psychiatric hospital, long after
they are ready for discharge. They’ll stay there until someone dies and
frees up a slot in the state’s public guardianship program.
State policymakers say this is no way to treat old people.
Virginia lawmakers agreed in February to spend up
to $500,000 to figure out what types of services are needed in the
Roanoke and New River valleys so elderly people with dementia and other
mental illnesses can live in homes or other community settings rather
than at a state psychiatric hospital.
Though the study is due in
November, the state Department of Behavioral Health and Developmental
Services has yet to hire a consultant.
“One of the big issues is for folks who can’t
make decisions on their own,” said Catawba CEO Walton Mitchell in an
interview earlier this year. “There are not enough guardians to go
around.”
What is a guardian?
Whether your net worth is counted in a series of
skimpy zeroes or seven fat digits, when a brain illness robs you of your
capacity to care for yourself and your affairs — even if you think you
still can — a judge may decide who’s the guardian of your health and
who’s the conservator of your money.
The same person can fill both roles, especially if an estate is simple.
Guardians and conservators aren’t reserved solely
for the elderly. Parents file petitions when their children with
intellectual or developmental disabilities become adults so that they
can continue to communicate with doctors and teachers and to protect
their children’s income from swindlers and debtors. Other families seek
limited control of loved ones with relapsing serious mental illnesses so
they can more easily compel prompt medical intervention.
Before someone is stripped of his right to be the
boss of himself, a guardian ad litem looks at how well he or she
functions and recommends to a judge how much authority should be placed
in another person’s control.
“When someone is demonstrating any level of
cognitive impairment, memory loss, whether it’s actually dementia or a
brain injury or mental illness, especially within the context of
guardianship actions, we are having to balance the needs and rights of
the individuals, but we’re really trying to assess what are their
abilities and what abilities are compromised,” said Roanoke attorney
Rhona Levine, who is president-elect of the Virginia Academy of Elder
Law Attorneys.
“The important issue here is that it’s not all or
nothing,” she said. “Very often, especially in the frail elderly, it’s
going to be complete.”
At times, the Adult Protective Services Division
of the Department for Aging and Rehabilitative Services will recommend
that people need guardians, mostly because they no longer can safely
care for themselves. Last year, the agency substantiated 10,109 reports
of negligence, abuse or exploitation; more than half were due to
self-neglect.
Professionals who work with the elderly say that,
ideally, people would have the foresight when they’re well to execute
legal documents expressing how they wish to be treated if stricken with a
brain illness, and their families would harmoniously respect those
wishes.
Public guardians
Sometimes no family or friends are willing to serve as guardians, and the person who needs help lacks financial resources.
Nearly 20 years ago, Virginia created a public
guardian program to serve this need, which continues to grow. Last year,
lawmakers added $500,000 to the budget to care for 100 more people, and
for the first time the program reached into every corner of Virginia.
The program can serve 706 clients; another 884 people were on a waiting
list.
When the program began, Family Service of Roanoke Valley was named to run one of three pilot projects.
“It was a brand new concept back in 1997 that an
agency would be a guardian rather than a person,” said Cathy Thompson,
who oversees Family Service’s guardianship program. She and her staff
serve as guardians for 70 people, placing them in group homes, assisted
living facilities or nursing homes, and then coordinating health care
and services.
“Most of our clients back then were elderly and
in nursing homes. That’s not the case today. We have a lot of younger
individuals, and they are not necessarily in nursing homes,” she said.
The public guardians play a vital role in moving people of all ages out
of the state’s training centers in order to comply with a Justice
Department order.
“With all guardian clients, we include them as
much as possible in making decisions, whether we show them pictures or
have a conversation they will forget in 30 minutes, or misconstrue,” she
said. They also try to establish a “values history” to figure out what
the client was like before he needed a guardian. This is important when
it comes to making decisions for someone else.
Thompson said they seek to substitute their
judgment so that it mirrors choices the person would have made, rather
than to opt for what they might think is in the person’s best interest.
“We strive for the substitute judgment because
that’s including the person in as much as possible,” Thompson said.
“They’ve not been awarded a guardian for a happy reason. It’s because
they’ve been abandoned or mistreated or had a mental illness or kind of
walked off the job. So we always have to be mindful of not assuming what
the circumstances were because we truly don’t know.”
For tough decisions, especially those involving end of life, Thompson turns to a team of physicians, attorneys and ethicists.
“I’ve never had anybody we had become guardian
over who has an advanced directive,” she said. “To do all that, you have
to be mentally stable and competent.”
And, she is always on the lookout for a family member or friend to step into the role.
“Family members in the beginning might be fearful
of accepting a guardian role because they think they’ll be financially
responsible,” she said. They won’t be. Sometimes someone will step
forward, she said. “We also have had families say we don’t want anything
to do with this person.” (
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Families tread carefully through maze of guardianship
