Dementia guardianship training bill moves to full Oklahoma senate

By: Naomi Keitt

TULSA, Okla. — People seeking legal guardianship of a loved one with dementia could soon be required to take a training course. It’s an effort by a Tulsa senator and the Alzheimer's Association to better prepare caregivers for the court-appointed role.

“We want to be sure that caregivers are adequately prepared for what they’re stepping into,” said Meggie Gaskins, Director of Communications for the Oklahoma Chapter of the Alzheimer’s Association.

Meggie Gaskins, with the Oklahoma Chapter of the Alzheimer’s Association, said there are several free resources the organization provides online. Those resources are similar to what could soon be required for court-appointed guardians of people with dementia.

“Most people that are applying for guardianship are going to be the primary caregiver for their loved one,” said Gaskins. “We want to make sure that they are prepared that they know what they’re getting into when they go through this legal process and they become responsible for this person’s medical choices, financial decisions.”

Senate Bill 1751 passed the Senate Judiciary Committee last week. It’s now heading to the full Senate. The bill would require training in three areas: understanding the disease, communication techniques, and information about resources for caregivers.

“I think this is something that increasingly all of us can identify with,” said Senator Jo Anna Dossett.

Dossett is the bill’s author. She said the legislation is a way to prepare better family members or friends who are taking on the court-appointed responsibilities.

“I think that’s going to be a benefit not only to the person who’s being cared for but also for the guardian or caregiver,” said Senator Dossett.

The Alzheimer’s Association said 70,000 Oklahomans are currently living with Alzheimer’s, and 135,000 Oklahomans are caring for a loved one with the disease. This bill would apply to those caregivers seeking legal guardianship.

“It’s around the clock especially into those middle and later stages and it can be really really taking on those caregivers, so we want to make sure they have the support that they need on this journey and to know the they’re not alone,” said Gaskins.

The training would be a free one-hour course that’s available online. We’ll keep you updated as the bill works its way through the legislature.

Full Article & Source:
Dementia guardianship training bill moves to full Oklahoma senate

Former New Mexico legislator known for wise, calm demeanor

Jack Burton, an attorney from Santa Fe, Sen. Jim White,
R-Albuquerque, and Sen. Daniel Ivey-Soto, D-Albuquerque

SANTA FE, N.M. (AP) - A New Mexico legislator who was known for his advocacy in protecting people who are incapacitated and placed under legal guardianship has died, Senate Republicans announced Friday.

Republican Jim White served one term in the Senate representing parts of Albuquerque, and Sandoval, Santa Fe and Torrance counties. He lost a reelection bid in the June primary.

“We will miss his wise and calm demeanor and passion for public service,” the Senate Republican Caucus said in a statement Friday. “Our thoughts and prayers go out to Senator White‘s family members and friends.”

Senate Minority Whip Craig Brandt, a Rio Rancho Republican, told the Albuquerque Journal that one of White’s relatives found him at home. The cause of death wasn’t known.

White was a veteran of the U.S. Air Force and served in Vietnam. He retired from work as an airport executive and served in the state House from 2009-14.

“He was a man that served his country, served his state and served his constituents well,” Brandt said.

White was honored by the New Mexico Foundation for Open Government in 2018 for his support in making the adult guardianship program more transparent.

Full Article & Source:

Former New Mexico legislator known for wise, calm demeanor

 

See Also: 

Senate approves guardianship reform

 

Beach Introduces Bills to Improve Legal Guardianship

Beach Introduces Bills to Improve Legal Guardianship

Trenton – In an effort to protect children and adults with disabilities, Senator James Beach has introduced a series of bills to increase protections for those in the care of a legal guardian or conservator.

“Legal guardians and conservators protect the health and wellbeing of vulnerable individuals who are unable to care for themselves,” said Senator Beach (D-Burlington/Camden). “We have a responsibility to our state’s children and the disabled community to ensure those in these positions are caring for them properly and that we do not tolerate abuse or neglect of any kind.”

The bills are:

• 2876 – Revises and updates the law pertaining to conservatorship to encourage ethical conduct by conservators and to provide stronger protections for conservatees and proposed conservatees.

• 2877 – Revises and updates the law pertaining to guardianship to encourage ethical conduct by guardians and to provide stronger protections for wards and proposed wards.

• 2878 – Revises certain requirements concerning reported cases of abuse, neglect, or exploitation of a vulnerable adult.

• 2879 – Revises requirements concerning disqualification from registration as, and duties of, a professional guardian.

• 2880 – Requires residential psychiatric and long-term care facilities to provide certain financial information to facility residents and other individuals.

Full Article & Source:
Beach Introduces Bills to Improve Legal Guardianship

Guardianship and Autism: A Crossroads in Life

Photo by Jude Beck on Unsplash

By Susan Moffitt

Your ASD child is turning 18 and will technically be an adult. If you feel that your child will be incapable of making adult decisions on their own behalf, you can pursue a legal guardianship so that you will retain the rights to make those decisions for them. A guardianship ends or severely limits your child’s rights and freedoms. State laws require that less restrictive alternatives are explored before guardianship is ordered.

Autism Speaks’ website explains:

“Adult guardianship is a court proceeding to appoint an individual to make decisions about a person’s health, safety, support, care, and place of residence. The procedure for obtaining a guardianship varies from state-to-state, but generally the process is initiated by an interested party filing a Petition with the court that states probable cause as to why a guardianship is necessary. The proposed ward and other interested parties – such as the proposed ward’s spouse, children and relatives – will receive a copy of the Petition, and the court will appoint an independent evaluator to assess the ward and make a written recommendation about the ward’s capacity. A hearing is held after the completion of the evaluation where the court will make a determination regarding the necessity of a guardianship. The ward has a right to hire counsel to represent him or her or the court will provide counsel.”

Once a guardian is appointed, the court may limit or terminate the ward’s right to consent to medical treatment, establish a residence, change domicile or vote. A guardian of the person may exercise most of the ward’s personal rights with the exception of the right to vote. The guardian must make decisions that are always in the ward’s best interests, cooperate with the conservator, if any, and encourage the ward’s participation in personal decisions so he or she may become more independent and regain the ability to manage his or her own personal affairs. The guardian must also file an annual report with the court to advise of the ward’s personal status.

Guardianship rules vary a great deal from state to state. The length of the hearing process also varies. Some states take away almost all of a disabled person’s rights while others allow them to retain some of them. Florida, for example, has Guardianship Advocacy which is similar to Guardianship but doesn’t require a capacity hearing.

Most states have passed a law called the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). Florida, Kansas, Texas and Michigan prove the exception. This law makes it easier for the state to transfer guardianship from one state to another if the person moves.

A Power of Attorney is an alternative to Guardianship that allows a disabled person to choose a person to make critical decisions concerning finances or health care for them. Unlike guardianships, Power of Attorney can be canceled at any time.

There is also the Representative or Protective Payee who is appointed to manage benefits such as Social Security.

Financial options also exist to assist your disabled child through life as well:

ABLE Account – If your child became disabled before they turned 26, an Achieving a Better Life Experience (ABLE) account can be setup. An ABLE account allows for up to $15,000 per year to be deposited into a tax-free savings account without affecting eligibility for government awarded benefits. While it can be easy to setup, the account can’t hold more than $100,000 and there are other hidden pitfalls that should be carefully considered before selecting this as an option.

Special Needs Trusts – A Special Needs Trust also called a supplemental needs trust allows for your special needs child (before or after they turn 18) to receive gifts, an inheritance, or other funds to provide supplemental care, life-enhancing services and equipment beyond that what the government provides. The Trust directs the funds so that the funds are not considered to belong to your child when they apply for government programs, such as Medicaid and Social Security Income (SSI). The 3 main types of Special Needs Trusts include first-party special needs trust, third-party special needs trust, and pooled trust. For more information click here.

Life Insurance – If you don’t have funds to put into an ABLE Account or a Special Needs Trust, life insurance is an option to consider. If you do establish a Special Needs Trust for your child, the life insurance policy can be directed to payout to the Trust without being subject to estate taxes or probate. It is important to make sure you choose a life insurance plan that provides your child the same quality of care for the remainder of his or her life.

* * *

Guardianship is an emotionally charged issue that requires soul searching. Parents want what’s best for their adult ASD child. They want them to be protected, yet given space to grow and become more self sufficient.

But issues arise. The special needs individual may not want a guardian. An individual facing a guardianship petition has the right to an attorney and under some state laws, that attorney must advocate for their “best interests” as determined by a court-appointed guardian ad litem or GAL (A GAL is an individual appointed by the court to represent the best interests of a child or incapacitated person involved in a case in superior court). If the client of the GAL disagrees, their legal representative is essentially fighting for them to lose their case.

ASAN or the Autistic Self Advocacy Network strongly believes it is wrong to “subject guardianship” upon a special needs individual. They believe everyone should have the ability to make their own decisions. They point out that neurotypical people rely upon the input and feedback of others when making decisions in their lives, and they should be able to as well. A movement called Supportive Decision-Making is gathering force across the nation.

It began in 2013 with a young woman with Down’s Syndrome named Jenny Hatch. Jenny was a high school graduate, worked at a thrift store she loved and volunteered in political campaigns. At her parents’ request, a court put her in temporary guardianship, placing her in a group home where they took away her cell phone and laptop and wouldn’t let her return to work or socialize with friends. Her parents filed for permanent guardianship, wanting her to remain in the group home that they felt was the safest environment for her.

After a year of litigation she won the right to make her own decisions through Supported Decision-Making, a process in which a team of allies help the disabled person to make key decisions about their life. She became a national and international hero for the rights of the disabled and speaks publicly of her experiences. A growing number of states now have Supported Decision-Making laws to give the disabled maximum freedom while retaining a network of support for them throughout their lives.

You can find the states that have Supported Decision-making laws at:
www.supporteddecisionmaking.org/50_state_review

There’s a wealth of information to consider and assimilate as a parent facing the prospect of your ASD child becoming an adult. You’ll want to review the laws of your state, weigh your options and seek legal advice. Each ASD person has their own constellation of strengths and challenges and it is understood that every parent wants the best for their child. None of us has a crystal ball into the future, but if we did, we would want to see our adult child living their best life possible. In this spirit, we take the hard steps to blaze a trail forward for them.

Full Article & Source: 
Guardianship and Autism: A Crossroads in Life

Is legal guardianship necessary for adults with developmental disabilities?

Adele Barlow clearly recalls her brother Craig’s 18th birthday. It was over four decades ago, but the shock of learning that he’d become a legal adult — with all the rights and responsibilities it comes with — stays with her to this day. Craig has Down syndrome, but in New Jersey and across the United States, 18 is the age all individuals, regardless of developmental disability, earn independent decision-making rights.

“My mother, in her will, designated our older sister to be his legal guardian. She also specified that she wanted him to spend equal amounts of time with all of his other brothers and sisters,” Barlow said.

Barlow’s parents filed for the guardianship, but when Barlow’s mother died the process got messy. Craig wanted to live with Barlow and her husband. Her sister, the designated guardian, contested it.

“We had a three-day trial and the judge ruled that she was going to abide by my mother’s will,” she said. “And I knew that was wrong. There was just so many reasons why she shouldn’t do that.”

Barlow learned a little known fact: wills don’t allow for the transfer of legal custody, they only account for the preference. She eventually won the guardianship battle. Though she admits her situation was highly complicated, it’s a scenario not unlike many others playing out for families of the developmentally disabled across the state. She says many don’t learn of the need to file for legal guardianship until there’s a crisis.

“If you want to make decisions for this person, any decision, I’ve had to show my guardianship papers,” Barlow said.

Paul Aronsohn says the issue to designate legal guardianship is one of the top concerns keeping parents and caregivers of the developmentally disabled up at night.

“That should be part of the transition conversation because parents and families need to be prepared by the time a child turns 18 — they are an independent adult,” said Aronsohn, who serves as state ombudsman for Individuals with Intellectual or Developmental Disabilities and Their Families.

Many spend years and thousands of dollars on lawyers to cut through the state’s red tape. Aronsohn says it’s all unnecessary.

“We need to do a better job explaining to families that there are other alternatives, too. It doesn’t have to be general guardianship. There can be supportive decision making, that there can be limited guardianships,” he said.

In New Jersey guardianship is a court-approved legal relationship between a competent adult and a minor child, or an adult declared legally incompetent. Once the guardian is appointed by superior court, only the court can modify or change the order. As the philosophy of inclusion for developmentally disabled adults has evolved, so too have the options surrounding this relationship.

“Increasingly, there are alternatives to guardianship which completely deprive somebody of their right to make decisions on their own behalf,” said Deborah Spitalnik, founding executive director of the Boggs Center on Developmental Disabilities.

The Boggs Center is New Jersey’s federally designated University Center for Excellence in Developmental Disabilities and part of Rutgers Robert Wood Johnson Medical School. The organization’s sole mission is to educate students and the community about topics like this.

“What we’re trying to infuse through the teaching we do, through programs, is the idea of supported decision making — that people can be supported in various ways to make the decisions that affect their lives,” she said.

According to Spitalnik, if put in the wrong hands, full legal guardianship of an intellectually or developmentally disabled individual has potential for abuse. And is only necessary, as in Craig’s case, when the person is unable to care for their basic needs, finances or medical issues.

“There’s a need for tremendous amounts of education about what peoples’ legal rights are and to make sure that people who need support and decision making have that support, that families have standing, but that we do it in a way that’s more balanced, more nuanced, in not making automatic assumptions about what peoples’ capacities are for decision making,” said Spitalnik.

Limited guardianship, for example, covers decision-making around where to live, go to school, handle money, legal and medical choices. It’s good for those who are capable of making some, but not all decisions. Power of Attorney holds similar status, but the individual has to understand, on a basic level, they’re appointing someone else to make choices on their behalf. A lesser-known option is the POLST, physician orders for life-sustaining treatment, used when the person is nearing the end of life.

While advocates agree, people placed in guardianship can be considered vulnerable, there are still many instances where it’s necessary and families need to be ready.

“If you went to the doctor office and they start asking you questions and you can’t speak for yourself, and they want you to go get a medical procedure that’s emergent and you say nothing, yu gum up the entire process because in this world liability is critical. And being clear on who to go to for the decisions can make the difference, just like getting lab work in diagnostics, and the care delivery can be delayed, bad decisions can be made,” said Steven Cook, executive director of The Arc Mercer.

The ARC Mercer is one of the only community-based services for people with special needs and developmental disabilities in Central Jersey. All of the doctors and medical specialists are highly trained in care giving and spotting legal gaps.

“I’ll go to the hospital, I’ll meet with the nurses as soon as they go to the emergency room. No matter where they go, I’ll be there, the staff will be there. So if we can explain to them who they are, what they can understand, what sets them off, how to redirect them, and everything else that they need to know to make it easier on both staff and the consumer,” said Carol Bastian, a registered nurse at The Arc Mercer.

“We know who the guardians are when we take them in. And I think from a behavioral perspective, we work really well with individuals with developmental disabilities to try and make sure they’re making the right decisions. But our model verses other models where maybe a doctor who doesn’t have as much experience with special needs and is seeing someone because they’re local and available, that process ther’re not comfortable with or they’re not even aware of,” said Cook.

Advocates say families should regularly revisit the conversation, especially as circumstance change, individuals age, and mental and health capacities decline.

“God forbid something really awful happens medically and decisions need to be made about feeding tubes or not feeding tubes, you definitely have to have legal authority otherwise the state can step in and say no you can’t terminate this person’s life, or you have to put that feeding tube in, which might not be the family’s choice,” Barlow said.

Adding, that authority shouldn’t be taken lightly, because advocates say more often than not it’s the guardians who get so much more out of giving.

“Aging and the Unknown: Adults with Developmental Disabilities” is a four-part series that dives into the complexities and challenges for those aging with intellectual and developmental disabilities.

Full Article & Source:
Is legal guardianship necessary for adults with developmental disabilities?

How the state steals seniors' rights and calls it 'compassion'

We like to think that America is a nation of rights, of equal treatment under the law, a nation that respects the dignity of every individual citizen, regardless of race, color, or creed. Our Constitution and Bill of Rights enshrined these attitudes into law, and we venerate them and tell ourselves that ours is a noble and compassionate country.

Yet there are certain classes of people who effectively have no rights. They are deemed, by virtue of who they are, not to warrant the same autonomy the rest of us enjoy. Some of these are children, whose age disqualifies them from exercising the same rights as adults. I’ve written extensively about the plight of those diagnosed mentally ill and how they are subject to the most horrific abuses with little or no recourse. A third class of persons, forced to live at the mercy of the state, consists of the nation’s elderly.

The New Yorker recently ran an exposé on the practice of legal guardianship, and the findings are shocking. Most people are probably aware that it is possible to commit elderly dementia patients with doctors’ recommendations and court orders, but few understand how broad these powers actually are.

A holdover from British law that regards the state as the “parent” of its citizens provides a legal route to rob individuals of their rights, with little trace of anything resembling due process. Court-appointed guardians can force the elderly to leave their homes, relocate to assisted-living facilities, and relinquish control of their assets without ever notifying them or their next of kin. The imposition of guardianship is sudden and confusing, leaving the victims little chance to obtain adequate legal representation to defend their rights.

Once the guardians get their hands on their wards’ finances, they can exploit those resources for their own gain and charge family members hefty fees just for visiting or calling their elderly relatives. The process is not unlike that of a kidnapper extracting ransom money from desperate families.

There is no medical legitimacy to guardianship, as the wards need not have been diagnosed with dementia or any other brain disease that would render them incapable of acting autonomously.

Instead, the decision to rob people of their rights rests solely on a judgment call made by the courts, where the situation is decidedly one-sided. When a professional used to manipulating the legal system goes up against a scared retiree who has never set foot in court before, it’s no surprise which one usually comes out on top.

The ostensible purpose of the state is to protect the vulnerable from those who would abuse them. In this case, however, as in so many others, the exact opposite is true. Men and women are being stripped of their autonomy for no reason other than their age and their inability to defend themselves, and their assets being handed over to opportunistic predators — all aided and abetted by the courts under the ironic guise of compassion.

People don’t stop being people when they get older. The Constitution doesn’t suddenly stop applying to them. We need to stop pretending that efforts to control and manipulate the population are motivated by anything other than malice, cruelty, and greed. You simply can’t help people by turning them into wards of the state.

Full Article & Source:
How the state steals seniors' rights and calls it 'compassion'

Legal Guardianship's Meant to Help the Elderly – But Some Texans Are Abusing the System

Originally published on June 27, 2016 2:18 pm

From Texas Standard:

As the population of Texas grows, so changes the demographics. According to the most recent data from the Texas Department of Aging and Disability Services, the state's population of those age 60 and older is expected to triple by 2050.

Many of those people will require assistance to help manage their estates, with their legal and financial rights being handed to guardians. But while Texas' rate of guardianship control increases – there are allegations that the state's lack of oversight can make the system open to abuse, fraud, and misconduct.

Reporter Patrick Michels, who writes about guardianship in the July issue of the Texas Observer, says about 53,000 people are under a guardianship in Texas – as a sort of "last resort" if no family member steps forward to help someone take charge of their finances or make decisions, the court can appoint someone to do so for them.

"Sometimes that's going against the person's own wishes, but if the person is making bad decisions in the eyes of a judge," he says, "then they can appoint someone else to do that. In rare cases, it can be a private, professional guardian – whose somebody appointed by the court who does these professionally."

In the story, Michels says he chose to focus on Lubbock County because it has the highest rate of guardianship in the state and there were some high-profile, "notorious" abuse cases. He says he wanted to see what had happened after those abuse cases were resolved.

"After a period of brief activity to get a handle on their problem, they're kind of back to where they were before," he says. "In a lot of ways, it sheds a light on a problem the whole state has."

That is, Michels says, that if a judge doesn't want to award a guardianship to a family member, they have few options for professional guardians. Back in 2009, Lubbock County had, he says, basically one.

"He would charge an hourly rate, which would end up being pretty high," he says, "He could get a cut of the money when he sold off someone's house, sold off their stocks. Under the law, all that stuff is possible. But he was doing it without getting explicit permission from a judge."

Once the state got rid of him as a professional guardian, Michels says, they didn't have many alternatives.

"Almost all of those guardianships went to somebody who had just started up operating in that area," Michels says, "which was his wife."

Michels says the state has taken an interest in the past few years to provide oversight, with the state Office of Court Administration spearheading a "small-scale audit" of about 10 counties. "They're just looking through the guardianship files... to get a handle on what's going on because in so many counties the judges don't have time to go over these files. They're just sort of being created and forgotten about."

The state plans to look through files in those counties by the end of the year, Michels says, to get a sense of how to handle any problems with guardianships before problems escalate.

Full Article & Source:

Legal Guardianship's Meant to Help the Elderly – But Some Texans Are Abusing the System