More and more experts are pushing for less restrictive alternatives to drastic legal action such as guardianships by Marilyn Perkins
America’s population is aging. The U.S. Census Bureau predicts that, by 2034, there will be more adults over 65 than children, and The Administration for Community Living projects the number of seniors over 85 will double between 2020 and 2040.
With that shift will come more people than ever being diagnosed with
dementia and cognitive impairment-causing conditions such as Alzheimer’s
disease. Nearly one out of every three seniors over the age of 85 has Alzheimer’s dementia, and the annual incidence of Alzheimer’s is projected to double by 2050.
These conditions cause a person’s decision-making abilities to
deteriorate, making it increasingly difficult to manage personal,
financial and health care affairs independently. In these cases, legal
interventions — often in the form of full or partial guardianships — can
come into play.
But a growing number of physicians, lawyers and policymakers are
bringing attention to how drastic legal action such as guardianships can
put seniors’ livelihood and well-being at stake, and they’re pushing
for less restrictive alternatives. One of those alternatives is a
framework called supported decision-making.
“When I think about something like Alzheimer's disease, I think of it
as a disease of autonomy,” says Emily Largent, a professor of medical
ethics and health policy at the University of Pennsylvania and proponent
of supported decision-making.
“It affects people's ability to make decisions about what's important
to them,” she continues. “One of my big concerns is that when we look
at tools like guardianship, we're stripping people of decision-making
authority prematurely.”
She explains that, in supported decision-making, an adult with
cognitive impairment relies on a trusted person or group to assist them
through choices around finances, health care, housing or any other
complex issues in their lives. It can include assistance in
understanding information, communicating preferences, exploring
alternatives and considering potential consequences. Supporters may
include family members, friends, advocates or professionals who work
collaboratively with the person to enable them to exercise their
decision-making autonomy. The process emphasizes that, at the end of the
day, it’s the individuals’ decision, rather than a guardian’s.
“Even though somebody's helping them, they retain the power over their own life,” says Largent.
The framework also lies in contrast to surrogate decision-making, an
alternative to guardianship in which someone is authorized to make
decisions on behalf of another person deemed incapable of making those
decisions themselves.
The problem with guardianship
Guardianship came to the national forefront in 2021, when the
#FreeBritney movement highlighted the alleged abuse in pop star Britney
Spears’ conservatorship imposed over her mental health issues. Spears
detailed the far-reaching control over her personal and professional
life she endured during a widely watched trial that resulted in her release from the conservatorship.
But while Spears’ high-profile case revealed the reality of
guardianship exploitation to a larger audience, it wasn’t representative
of what most guardianships look like. The majority of people in
guardianships are elderly, residing in health care facilities with some
degree of cognitive impairment.
While full or partial guardianships can be necessary and even helpful
for seniors with dementia, they can also open a door to abuse and
exploitation, and can make people feel that they’re losing what little
sense of self they have left.
“This is an issue of the most important fundamental rights: What it
means to be a person, to make decisions about your life, about your
health care, about where you live, what happens with your possessions,
your money, who you see,” says Karen Buck, executive director of the
SeniorLAW Center. “Every aspect of your life is potentially at risk with
guardianship.”
Valerie Snow, an attorney with SeniorLAW Center who represents adults
in guardianships or facing guardianship petitions, says that ageism is a
big factor in why the mistreatment of seniors in guardianships has gone
overlooked for so long.
“Older people are often ignored and devalued,” agrees Buck. “Their voices are unheard.”
Supported decision-making
Supported decision-making was first introduced as a way for young
adults with developmental disorders such as Down Syndrome to avoid
lifelong guardianships. Researchers like Largent are still working to
adapt the approach for seniors living with cognitive impairment and
dementia, as most studies conducted so far have focused only on younger
adults.
“The studies that have been done with these younger adults, generally
speaking, have found that they feel happier, more independent, they
have greater self confidence, and they have a greater sense of control
over what happens to them,” says Largent.
The pilot projects also show a much lower potential for abuse and exploitation compared to guardianship.
However, supported decision-making for seniors still faces a number
of challenges. Compared to younger adults with developmental
disabilities, cognitive abilities in older adults are less stable. A
person who has Alzheimer’s disease may experience poor memory one day,
clarity the next; and ultimately, their memory will likely deteriorate
over time.
That means supported decision-making strategies for older adults need
to be flexible day-by-day, and perhaps transition into guardianships
over time.
Proponents of supported decision-making also admit that it isn’t a
solution for everyone. For those with severe cognitive impairment or
dementia, guardianship or surrogate decision-making might be the only
option.
Still, a physician and director of the Penn Memory Center Jason
Karlawish emphasizes the importance of pursuing arrangements that let
seniors with cognitive impairment keep their autonomy.
“Guardianship is a method of last resort,” says Karlawish. “It's a
tool that should be in the toolbox, but it should be used with great
care and caution.”
And like successful guardianship, supported decision-making requires a
person to have someone in their life who, in the words of Karlawish, is
“trustworthy, reliable and accessible.”
Karlawish cautions that finding that balance can be difficult, even with spouses and adult children.
Legal status
As of 2023, over a dozen states, including California, Texas and the
District of Columbia, legally recognize supported decision-making. In
Pennsylvania, it remains an informal mechanism.
Largent says it’s still possible to informally develop a supported
decision-making arrangement for seniors, but that privacy-oriented
institutions like banks and health care providers may not recognize it.
For anyone considering a supported decision-making arrangement — or
any other alternative to guardianship — for themselves or a loved one,
Snow recommends planning ahead as much as possible.
“Putting the person in the driver's seat is the most important thing
you can do,” she says. “If you don't plan ahead, you might end up under a
guardianship where you are not in the driver's seat, and you have very
little agency over these big things that affect you.”
While the state doesn’t have any supported decision-making laws on
the books, Pennsylvania representatives are on the forefront of the
national stage for guardianship reform. Senators Bob Casey and John
Fetterman recently introduced a bill
to standardize the nation’s patchwork of guardianship laws and push for
less-restrictive alternatives like supported decision-making.
Karlawish says he thinks it’s time for the legal and medical
framework that helps seniors with cognitive impairment maintain their
autonomy to expand. He points back to a similar moment in the late 1980s
and early ’90s, when new technologies such as life support systems
allowed doctors to prolong the lives of patients who once would have
died.
From this explosion in medical technology came legal frameworks like
surrogate decision-making and living wills. “That took away a lot of
ethical dilemmas and anxieties that dominated medicine in the late 20th
century,” explains Karlawish.
Now Karlawish says it’s once again time for policy to catch up to
medicine. As lifespans stretch and treatments for dementia cause seniors
to live with mild cognitive impairment for longer, he believes
supported decision-making will be more relevant than ever.
Largent agrees. “I think we should really keep people empowered as long as possible — and this is a way of doing that.”
Full Article & Source:
How can seniors with cognitive impairment keep their independence?