I didn't want to write this post until I had some good news to go along with the bad, but haven't been able to find much. Surely elders placed into state guardianship are at least entitled to legal representation, right? Well, not that I could figure out.
Every year an unknown number of elders are declared incompetent and placed in state guardianship at the request of nursing homes, hospitals and others. They then become virtual prisoners of the nursing home, with no legal representation, no access to money or even the ability to find out where their money and belongings are, and no one to watch out for them.
Some of these elders, of course, do meet the legal definition of incompetent, defined in the Law.com Dictionary as " referring to a person who is not able to manage his/her affairs due to mental deficiency (low I.Q., deterioration, illness or psychosis) or sometimes physical disability. Being incompetent can be the basis for appointment of a guardian or conservator (after a hearing in which the party who may be found to be incompetent has been interviewed by a court investigator and is present and/or represented by an attorney) to handle his/her person and/or affairs (often called "estate"). They need help and they should get help, but they do not deserve to be treated like children. Actually, I take that back, even children don't deserve to be treated the way they are.
A few of the unjustly confined do manage to get out. "In December 2006, it took just 2 minutes and 10 seconds for Mass. General to convince Judge Merrill that 74-year-old Rose Doyle should be put in the care of a guardian. Doyle was confined to a nursing home for three months. She complained to Greater Boston Legal Services. In May 2007, after an outside psychiatrist concluded that Doyle was competent, Merrill reversed her decision. In November, Doyle died."
Massachusetts guardians get $1,200 a year from Medicaid per elder, so some have built businesses around guardianship. Guardians are supposed to file quarterly reports with the court but of 308 reviewed Suffolk County cases, only 46 reports had actually been filed.
I'm a fairly savvy web researcher so I set out looking for a list of rights for elders in this situation. I could find no such list. The Massachusetts Legal Corporation has a web page that addresses a myriad of elder issues, but not this one. Still, I'd start with Legal Services-- here in Western Mass the numbers are
- 781-7814 for Hampden County
- 584-4034 for Hampshire County
- 774-4737 for Franklin County
- 664-4531 for Berkshire County.
Last year the Dept. of Elder Affairs and the Dept. of Mental Health had a series of regional forums about the mental health needs of elders. I don't know how many elders were there, because strangely, elders' opinions themselves were not mentioned in the memo about the conclusions reached. Instead, the "stakeholders" were defined as local caregivers, DMH staff, the provider community, the Councils on Aging and some others.
Once again, as I've seen over and over in my organizing life, those most directly affected have the least opportunity to shape the policies that are designed for them.
I could really use some help on this one. If anyone knows of other resources of strategies elders should be using to protect themselves, let me know. I turned sixty last month, and I know there are many issues ahead of me as i age, but nothing terrifies me more than threats to my autonomy.