Tuesday, January 15, 2008

Mass. elders without families have no protection against being declared incompetent!

Yesterday the Boston Globe reported on the risks of being a Massachusetts elder without family and friends-- you might find yourself placed into state custody against your will!

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.
The Massachusetts Dept. of Elder Affairs has a hotline, 1-800-AGE-INFO, and a website, although again, I could find no reference to this issue. The U.S. Administration on Aging also has an "Eldercare Locator"-- an elder referral service-- at 1-800-677-1116.

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.


Anonymous said...

First: I have never tried this before. You may not get it.
Second: I would be delighted to help you in these efforts. In as much as we all eventually become elderly, it should be of interest to all of us.
Third: How do we connect to decide on a game plan.
Fourth: Thank you so much for bringing this to the forefront.

Michaelann Bewsee said...

Hi-- if you're new to this, I hope you think to look at comments...if not, I'll post again in a day or so.

Seems to me we need legislation; the concept shouldn't be controversial, BUT getting the funding for it will be tougher.

You can email me at michaelannb@gmail.com and we'll go from there.

I was just shocked about this.

marinesenior said...

I Have read the article in the Boston Globe and know that the best way to approach the guardian question is to work for Reform of the Probate Courts and an effort by interested groups to push the legislators for action on the issue.
I worked in VAVS program at the Veterans hospitals for many years.
When I was Commander of the VFW of the Brockton VFW post 1960's we found an abuse of veterans in the local VA hospital in the quardian program. When of the Veterans in the hospital without family contact (for Many reasons) were assigned quardians who ransacked their disability income in many ways. We were able to make inroads into correcting part of the system but their is still the "loophole"
in Mass probate courts.
I was hoping as a member of Mass Senior Action that they would get involved because this is a Senior Issue as well as disabled citizens issue

maldensenior said...

This quardian problem is not anything new
What is needed is Probate Court Reform
The legislators(loaded with attorneys) need a push for timely legislation. They have been moving this around for over a decade NO ACTION
Abuse in the 1960's at the Brockton VA when I was doing VAVS service and was Post Commander VFW.
We tryed to reform the way the guardian program was being handled for the veterans. Abandoned by family and "looted" by appointed guardians with out qualifications.

maldensenior said...

LETS PUSH THIS WITH THE BOARD OF DIRECTORS TO SET THIS AS A MAIN ISSUE Our organizers seem to be well informed and ready for action.
I hope we can get the new MSAC board members involved in key issues affecting our Seniors