Concern over elder abuse

I think one of the least talked about and one of the most important current problems in this country is elder abuse, in a variety of forms.

If you’re 65 or over, the problems associated with elder abuse should concern you. I didn’t pay much attention to this issue until I read an article about elder abuse in “The New Yorker” magazine recently. The upshot of the article was how easy it is in more populated areas of this country for unscrupulous people to become qualified as a guardian and then to be assigned to an elderly couple with all the powers of a guardian, which includes having people removed from their homes against their will and sent to a nursing home, selling all their possessions, and basically taking away everything they’ve worked hard for all their lives to pay not only the guardian, but for the nursing home care.

What follows, therefore, is some basic information about elderly guardianships from a website called “findlaw.com.”

Here’s a basic definition of what an elderly guardianship is: “Elderly guardianship, also known as elderly conservatorship, is a legal relationship created when a court appoints an individual to care for an elderly person who is no longer able to care for himself or herself.” The problem arises when elderly people are perfectly able to care for themselves but are merely alleged to be unable to do so any longer. “Unfortunately, an elderly person may become unable to care for himself or herself. This could include the inability to remember to take necessary medications, maintain regular hygiene, or properly manage finances. In these instances, it may be in the elderly person’s best interests for a court to appoint a guardian.”

Again, it’s possible that the mere allegation of incompetence may be enough for a court to appoint a guardian without the elderly person even knowing about it. Of course, there are instances when an elderly person really does need a guardian appointed, but the danger arises when then don’t, but a guardian is appointed anyway.

Who can petition the court to have a guardian appointed can include the elderly person himself or herself, the spouse or domestic partner of the elderly person, a relative, a friend, or even a state or government agency. The potential for abuse grows exponentially when the distance, both physical and emotional, increases.

The important thing to remember if you’re over 65 is that a legally appointed guardian gets control of everything, your money, your possessions, and where you live. The guardian gets control, in other words, or your whole life!

Here’s what the previously cited article says about some of the negatives associated with a guardianship: “Guardianship, by nature, requires the elderly person to lose some of his or her rights. For example, the elderly person may lose the right to manage his or her finances, to choose his or her own caretaker, and to decide where he or she lives. There’s also the risk that the guardian will fail to act in the best interests of the elderly person.”

As a practical matter, an elderly person becomes as disempowered over their own life as a minor child would be.

Some alternatives are available to a court appointed guardian. They include creating a living trust, giving one’s power of attorney to another person, or even appointment of what is called a “standby guardianship.” A standby guardianship means that, “the elderly person may designate someone as a standby guardian, in case the person loses the ability to care for himself or herself.” This method at least insures that the elderly person is picking the guardian instead of having someone appointed guardian who the elderly person may not even know. It is important to understand, however, that all these alternatives involve the elderly person willingly assigning his or her rights to another person.

Here’s what the National Association to Stop Guardian Abuse says: “Over the years, guardianship law has been misapplied, misused, and sometimes just plain manipulated, until it has become a threat to the health and wealth to our elderly and disabled citizens. [The elderly] in these circumstances, are victimized under the deception of protection. Strangers are often given total and absolute control of life, liberty, and property of their wards, including being left defenseless and subject to neglect, abuse and or exploitation by the very people chosen to protect them; they become invisible and voiceless.”

Here’s what the court said in a 1995 Iowa case, N.W.2nd 567, 573-74: “[The ward] may be deprived of control over his residence, his associations, his property, his diet, and his ability to go where he wishes. With the misconception that guardianship is always a good thing, proposed wards agree to it not understanding that their rights will be restricted.”

Given the potential loss of liberty and freedom which the elderly have enjoyed all their lives, it just makes good sense to consult an attorney about how best to protect yourself from ending up being the ward of a court appointed guardian. We hear horror stories almost every day about child abuse, but precious little is heard about elderly abuse – particularly in light of the fact that a court appointed guardian is supposed to be acting in the best interests of the elderly person.

The risks of elderly abuse in small town America are small, but it just makes good sense to consult an attorney while you still have all your wits about you to avoid ending up with nothing.
That’s – 30 – for this week.

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Concern over elder abuse