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Decision-Making

Guardianship

Court Protection of the Elderly

Court Protection of the Elderly

Guardianship

Because of my length of time as a judge, people routinely ask me what my toughest assignment was. Divorce court? Criminal court? End of life decisions? In truth, each division has its own set of challenges. For me, however, the most challenging, frustrating but ultimately the most rewarding division was guardianship.

When I mention this, I typically get quizzical looks, even from attorneys. Guardianship is often confused with “guardian ad litem”, which is a court program for the protection of children.

Guardianship, however, is altogether different.

I routinely use this example to explain guardianship: an elderly woman is found wandering in a neighborhood. If she does not know where she lives and no one recognizes her, law enforcement is called. They, in turn, call social services.

The first responsibility of the social agency is to determine the living situation and to see if relatives are available to assist. The agency checks for any advance directives such as health care surrogate, trust documents, power of attorney etc. If nothing is unearthed, and the agency believes that the person has ‘capacity” issues, the agency will petition the court to have a guardian appointed. Thus begins the legal saga.

In our state, the initial step is to have the individual examined by a panel of three mental health experts ( psychiatrists or psychologists). If the individual is found lacking in certain areas, the court typically finds the person to be incapacitated (partially or otherwise) and appoints a guardian.

Incapacity is, of course, a legal finding, but one with long term effects. Potentially, a person may lose all decision making ability over both property rights and personal issues. Typically, the court signs an order which details the rights removed and those retained, if any. A finding of total incapacity renders an individual not only incapable of managing his/her own assets, but also incapable of choosing where to live, of voting, of selecting social partners, among other things. Although there is a mechanism for having rights restored, in actuality it rarely happens, once someone has been found to be incapacitated.

Although the statutes favor the appointment of a family member as guardian, in Florida, supportive relatives are in short supply, since so many seniors are originally from other states.

Thus, in many cases a professional guardian is appointed.

When I realized both the full import of a finding of incapacity, and my role as protector of the wards, it stunned me. I didn’t know if I was up to the task. As often happens in the judicial system, I was assigned to the division without ever having practiced this type of law.

One of the initial areas of concern, for me, was the examining committee. What criteria were in place to determine if a psychiatrist or psychologist was qualified to render an opinion?

The answer was frightening. Any psychiatrist or psychologist in “good standing” could apply to be on the court appointed list. Apparently, no one was turned down. There was no training in place for a committee member, even if he/she had not had any experience with elderly patients. I decided to interview each member on the list. What I found was of concern.

First of all, many members on the list took umbrage at the fact that I was meeting with them at all.

Secondly, many of the individuals on the list were themselves older, either retired from practice or scaled down. Some of them saw these appointments solely as an income supplement.

Based upon my findings, I became concerned about the thoroughness of the reports. After all, I was using these reports to declare someone incapacitated.

Despite misgivings about some members on the court appointed list, I was not able to remove anyone. For one thing, the list was the purview of the chief judge, so it was not my call to make. For another, some people on the committee were political appointments.

However, I was able to establish guidelines for the committee. I enlisted the help of our local university which was only too glad to participate in developing a training program . A first step, but a crucial one. Having a study done by a university enabled me to enact mandatory standards for members of the committee. Some of the committee members did not want to comply and thus resigned from the committee. Fortunately, there were many competent mental health professionals available to fill the slots.

In upcoming posts I will continue with the areas of guardianship and incapacity. With a projected 20% increase in the senior population by 2030, this topic will continue to be an issue for many years to come.

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