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The Legal Side of Aging and Dementia: Advance Planning Tools, Commitment Proceedings, Guardianships & Conservatorships - March 2013

March 06, 2013

By Kathryn N. Byler.

During the 2013 session, the VA General Assembly unanimously passed a law against the financial exploitation of incapacitated persons making it a felony punishable with incarceration of between one and twenty years. This law touches on the growing concern of protecting the elderly without taking away their rights unnecessarily.

Elderly persons who once were savvy community leaders may experience effects of dementia that leave them vulnerable to financial, emotional or physical abuse. Suspicions of elder abuse, neglect and/or exploitation should be reported to Adult Protective Services (888-832-3858). Mandated by the Code of VA § 63.2, these services are provided regardless of income to persons 60 years or older and incapacitated adults of any age. An investigation will be conducted to determine the need for protective services.

Advanced planning when an individual is healthy provides tools and a framework that make it easier to assist and protect as situations change. A Durable Power of Attorney, an Advance Medical Directive, and a Trust are easily prepared when a person is competent. In the case of lost capacity, these documents are both directly and indirectly valuable in that they show the desires of the individual including whom he trusts to make decisions for him, how he feels about end-of-life issues and how he wants his finances spent during his lifetime.

Despite advanced planning, emergency situations sometimes arise. These situations generally require a call to 911. Responding police or EMT are trained in such situations and can initiate a process that may include emergency custody for up to 4 hours, a temporary detention order for up to 2 days, and a commitment hearing for involuntary admission to a hospital or treatment facility for up to six months. This process involves medical professionals, social workers, and the courts.

In America, upon turning 18 all people are deemed competent. Individuals automatically have the right to pursue their happiness and the freedom to make all decisions regarding their lives. These rights remain until the end of life unless a court of competent jurisdiction revokes them through a determination of incapacity. This determination is not made lightly. The process takes time, requires a medical evaluation and other evidence, and is not a routine, rubber-stamp matter. The procedures must be followed precisely with clear and convincing evidence. Merely foolish actions or unwise handling of money does not prove incapacity.

If it becomes clear that an individual is unable to care for himself or his finances and he will not improve, it may be necessary to petition the court for appointment of aguardian and/orconservator. A guardian makes personal decisions such as healthcare and residential accommodations.  A conservator handles finances. Before ruling on the petition, the court appoints a guardian ad litem who investigates the veracity of the request, meets with the individual who needs assistance, and makes an independent recommendation. Even after the appointment of a guardian and/or conservator there are safeguards to protect the incapacitated adult. A bond is required and a commissioner oversees actions of the guardian and conservator.

Dealing with aging and dementia is never easy but advanced planning and a relationship with an attorney experienced in elder law helps.

“First we are children to our parents, then parents to our children, then parents to our parents, then children to our children.”  Milton Greenblatt