Dear Hayek,
I read that once a senior is declared incapacitated and has a guardian placed on him or her, it is really hard to terminate the situation. Is that really the case? I heard about some positive change happening as far as guardianship and senior rights in DC. Can you tell me more about this?
Thanks!
Gar Dienne-Shipp
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Dear Gar,
Senior guardianship and conservatorship occurs when a court appoints an individual to take care of an elderly person. It may be a family member or a close friend, and it usually takes place when the senior is no longer able to take care of himself or herself. Guardians help take care of personal and medical decisions, well conservators take care of legal and financial decisions. The guardianship and conservatorship continues until the ward dies or until the court determines that the guardianship and/or conservatorship is no longer necessary (which doesn’t happen easily).
Let’s look at an example of how a new law in DC is making terminating a guardianship much easier for a ward, when he or she doesn’t need one. “Dolores,” 87, is a Northwest, DC resident who would rather remain anonymous. She takes care of most of her needs by herself, such as getting dressed on her own, taking the right amount of medications as needed, and making appointments that she gets to herself by using public transportation. She recently enrolled in a college class after deciding she wants to learn Italian. Yet, Dolores was deemed an “incapacitated individual” — unable to make choices for herself. Luckily, that changed this month.
Dolores is the first senior citizen in DC to convince a court to terminate a guardianship placed on her in favor of “supported decision-making.” She and her attorneys successfully argued that with help from people in her life, she could make her own decisions and did not need a court-appointed guardian to do that for her.
Her case marks the first time that the District’s supported decision-making law, which was passed in May, has been cited in court to help a resident regain independence. According to the Washington Post, “(m)ost of us have friends or relatives we turn to for advice. This is the same as that — but more. The D.C. law formalizes those relationships and requires institutions and organizations to recognize the role of people who serve in those supportive positions.” The District is only the fourth jurisdiction in the country to pass the law, after Texas, Delaware and Wisconsin. (Note that Virginia and Maryland are not among the states with “supported decision-making.”)
It wasn’t easy for Dolores to be a pioneer for this new law. “I had to fight against everybody,” Dolores said. It was worth it for Dolores. The court’s decision means that she can now do what she has always done: take care of herself.
Dolores recognizes that she is not able to do everything by herself now. But she said that for every problem she encounters, she knows whom to call. She has a person who helps her when she has health insurance issues and one who helps when she has medical questions. Recently, after someone stole her wallet, she knew exactly who could help her get a new Metro card. Still, she worries about the future, about whether one day she will be told that she can no longer live alone in her apartment.
She knows all too well how quickly life can change. She knows that given this “second chance,” she needs to start her incapacity planning and long-term care planning right away, so she is ready for whatever the future may bring.
As mentioned, DC is the only part of the metro area that has “supported decision-making.” If you have not done a Power of Attorney, now is the time to get it done by an experienced Elder Law Attorney as part of a comprehensive Incapacity Plan which includes an Advance Medical Directive and Long-term Care Directive®, or as part of a comprehensive Estate Plan which includes an Incapacity Plan and a living trust to avoid after-death probate. Be sure to contact the Farr Law Firm to set up an initial consultation to learn more and get started.
All my best,
Hayek
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