Dolores M. Coulter

Attorney at Law

8341 Office Park Dr. Ste C

Grand Blanc, MI 48439

Phone:  (810) 603-0801




Elder Abuse and Neglect

Dolores M. Coulter © April 2008

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Q:  I work at a senior center.  A local pharmacy contacted the center regarding one of their elderly customers who was having difficulty understanding directions and would become agitated for no apparent reason.  A staff person contacted a family member of the customer who explained that the family was trying to cope with a difficult situation.  The husband  has been diagnosed with dementia, but still continues to drive.  His wife has talked about moving into assisted living, but the husband refuses to consider it and has told his wife not to discuss it with the rest of the family.  The family is also concerned that the husband may become violent.  They have spoken to a lawyer about guardianship and conservatorship.  The family doctor has written a letter expressing his concerns and indicating that guardianship or conservatorship is warranted.  We want to help but are not sure what to do. 

Your question illustrates some of the very difficult issues that families face when an elderly family member begins to experience a decline in his/her physical or mental abilities.  Family members may notice increasing problems with memory, decision-making, paying bills, appreciating safety risks, handling routine tasks such as preparing meals or taking medications, or increasing problems with physical tasks such as walking or climbing stairs.  In many cases the older person refuses to recognize that they need help or they are afraid that if they admit they need help they will be forced to move from their home into a nursing home or assisted living facility.  There are legal issues involved, but the family also needs help to cope with the medical, financial, and emotional aspects of caring for aging family members.  I would suggest that, as a first step,  the family seek a comprehensive geriatric assessment that will assess the elderly couple’s needs,  advise the family of services that are available,  discuss various options, and develop a plan to address the needs.  The assessment should include evaluations by a nurse, social worker, and a physician with expertise in geriatrics.  Fortunately, thanks to the passage of the senior millage in August, 2006, geriatric assessment services are available in Genesee County at no cost from the Alzheimer's Association Genesee County Case Management and Referral Services for persons over age 60.  The senior millage has also resulted in increased funding for a wide variety of other services to assist seniors with needs that are identified in the assessment process. 

In this answer I will discuss some of the legal issues involved in your question, but it is always important to keep in mind that these cases should involve an interdisciplinary response, with social workers, health care professionals, other service providers, as well as legal professionals working together. 

The law presumes that adults are competent and capable of making their own decisions.  If a competent adult refuses to accept help, neither the courts nor any state agency can force that person to accept help.  The difficulty, of course, arises in determining whether a person is competent to make decisions.  There is no simple test or precise definition that can be used.  Furthermore, the law applies different standards to different types of decisions.  For example, if a Probate Court is faced with a petition to appoint a conservator to handle someone’s finances, the court must determine whether the person is “unable to manage property and business affairs effectively”.  In order to appoint a guardian the court must determine whether the person “lacks understanding or capacity to make or communicate informed decisions concerning their person.”  In order to execute a will a person must be able to understand the nature and extent of their property, recognize the “natural objects” of their bounty, and know how they wants to distribute their property.  Although the law defines the standards and the courts apply them, the legal system depends on medical professionals to make judgments about a person’s competency to make decisions.  The judgment should not be based simply on a diagnosis or on the results of a single test, but on how the person’s overall mental and physical condition affects their ability to make decisions and care for themselves.  At a seminar I attended recently, the presenter, a physician who specialized in geriatric medicine, emphasized that in the final analysis, whether someone is or is not competent is a clinical judgment which should be based on a comprehensive assessment. 

Safety is a priority concern.  If the husband continues to drive despite evidence that he is a safety risk behind the wheel, and if the husband refuses to voluntarily give up the keys, the family should consider contacting the Secretary of State’s office and filling out a Request for Driver Examination form.  This form is used to request that the Secretary of State conduct a reexamination of a person whose ability to operate a motor vehicle safely is questionable.  The person filing the request must state facts that would give the Secretary of State reason to believe that the individual has a mental or physical condition that impairs his/her ability to drive safely.  A medical statement is helpful but is not required.  The Secretary of State will not disclose the name of the person who made the request.  Of course, when the husband receives the notice from the Secretary of State to appear for a reexamination, he may assume that the family member who tried to talk him into turning over the keys is the one who filed the request.  However, since an impaired driver presents a danger not only to himself and his passengers but also to other drivers and pedestrians, it is important for family members to do what they can to keep a dangerous driver off the road. 

If the husband is exhibiting violent behaviors towards his wife, the wife’s safety will also need to be addressed.  As difficult as it may be for her to move out, she should consider moving, at least on a temporary basis, perhaps to a senior citizen apartment or an assisted living facility.  If she does, the family may then be faced with concerns about the husband’s welfare, if his ability to live independently is questionable.  He might need to have someone check on him once a day.  If he is no longer permitted to drive he will need transportation services.  If he is unlikely to prepare nutritious meals for himself, there are congregate meal sites at senior centers around the county (with transportation provided) or if necessary he can have Meals on Wheels delivered to his home.  The geriatric assessment that I discussed earlier could help the family in identifying and arranging these services.  If the husband refuses to accept services, and the refusal poses a risk to his health and safety, the family may have to consider petitioning for appointment of a guardian. 

I discuss guardianships and conservatorships in another Question & Answer.  A guardian is someone who is appointed by the Probate Court to make medical and personal decisions for an individual who lacks the ability to make informed decisions concerning their person.  A conservator is someone who is appointed by the Probate Court to handle financial matters and manage property for an individual who lacks to ability to manage their financial affairs effectively.  It is a drastic step but in many cases it is a necessary one.




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