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The U.S. Constitution guarantees a person can’t be deprived of “life, liberty or property” without due process. State law allows a court to appoint a guardian for people who are incapable of making responsible decisions.

Utah Commission on Aging director Maureen Henry says: the statute is vague enough to be problematic, What, for example, does “responsible decisions” mean?

During the past 50 years, the courts have emphasized the due process rights of adults who are mentally ill — requiring that a person admitted to a psychiatric facility be brought before a judge to assure that his confinement is justified; the burden is on the state to prove that the commitment is necessary. But there’s no similar system protecting the elderly, charges Henry, who as an attorney specialized in elder law.

If an old person is put in a nursing home or locked Alzheimer’s unit and she doesn’t want to be there, the burden is hers to work her way out, not on the state to prove to a court that she needs to be confined. And in legal matters, Henry notes, the person who bears the burden of proof is more likely to lose.

Henry says: That’s not to say that families or facilities are ignoring the law. But there is no system in place to deal with the complexities of self-determination for old people — “and that forces everyone, nursing facilities, patients, families, caseworkers, into that gray area where no one is really clear about what is right and wrong.”

There’s no one whose job it is, at any level of government, to look at the folks in nursing facilities or locked units of assisted living facilities to make sure that they either agree to be there or that they were admitted following legal procedures.

Old people are often talked into — occasionally even tricked into — moving into nursing homes and assisted living facilities by well-meaning relatives. In the vast majority of cases, family members don’t even try to get guardianships before admitting an elderly relative to a facility, because it’s not clear under what circumstances they should, and they’re expensive.

It’s pretty easy for a family member to get uncontested guardianship, the experts agree (although it can cost thousands of dollars in legal fees). When the Deseret News went to court to watch guardianship proceedings, it was startling how quickly someone could be stripped of all decision-making rights. Once the paperwork is in order, “hearings” average seconds, not minutes.

Full Article and Source:
Who should make choices for the elderly?

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