The Fine Line Between Protecting Elder’s Civil Rights and Protecting Elders from Harm or Abuse
By: Jennifer L. Simons, Esq.
McAndrews Law Offices, P.C., Estate Planning Department
Those of us who have an elderly parent, grandparent, or who are caring for an elderly loved one may often at times think that we know what is best for them and we sometimes reverse the roles of parent/child and decide that we should be making the decisions on behalf of our loved one. However, just because someone is elderly or may become slightly confused at times does not always mean that they are completely incapable of making their own decisions. A person is presumed competent unless proven otherwise and determined by a court that they are an incapacitated person. The elderly are still adults, and as adults we all have made bad decisions at times or decisions that someone else may not have made or would not agree with, but it does not necessarily mean that we are no longer able to make any decisions on our own about where to live, how to handle our finances etc. Ideally, the goal should be to allow a loved one to retain their independence and have them live in as least restrictive setting as possible. Most seniors wish to remain living in their home in familiar surroundings and there are ways to assist seniors that will allow them to remain at home as long as they are able to care for themselves safely.
A problem begins to emerge when an elderly person becomes susceptible to deception and abuse, whether, physical, financial or emotional, because their ability to make decisions or communicate has become so impaired that they are putting their physical health and safety at risk. Unfortunately, we live in a day and age when abuse of the elderly is becoming more and more prevalent, especially financial exploitation. And sadly, many times this occurs by someone that the elderly person trusts, has befriended them, or is even a relative. So while we strive to allow seniors to maintain their civil rights and make their own decisions this must be balanced by making sure that we also protect them from becoming victims of abuse or putting themselves at risk of safety. This may sometimes necessitate appointing a guardian for the person who will manage, or help manage, the personal and financial affairs for the person when they are no longer able to do this for themselves.
Appointing a guardian for an individual is not something to be taken lightly, as it requires that the court declare the person to be totally or partially incapacitated and involves taking away the individual’s rights. When a person is determined to be an incapacitated person and the court appoints a guardian for the person it means that the court has determined that their ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he/she is partially or totally unable to manage his/her financial resources or to meet essential requirements for his physical health and safety. 20 Pa. Code §5501. If the court finds that a person is totally incapacitated it will appoint a Plenary Guardian of the Estate or a Plenary Guardian of the Person. If the court finds that a person is partially incapacitated it will then appoint a Limited Guardian of the Person or a Limited Guardian of the Estate. In both cases the guardian is to look out for the best interests of the incapacitated person and try as much as possible to honor their wishes and preferences, and to allow the incapacitated person to participate to the extent possible in making decisions that will affect him/her.
Although we strive to allow our elderly loved ones to remain as independent as possible and to retain their civil rights, we must also recognize when a loved one is so significantly impaired that they are putting themselves or others at risk of harm or susceptible to exploitation or abuse. Guardianship is sometimes needed to ensure that a person is protected from harm and obtains assistance in making personal or financial decisions. Allowing the person to participate in these decisions to the extent they are able to can sometimes strike that balance between protecting their rights and protecting them from abuse or harm.