Who should make choices for the elderly?

Read the entire "Gray Area: Utah as it ages" series of reports here.

A few weeks ago, Salt Lake County Aging Services got a call from a woman who was worried about her aunt. The aunt suffers from some dementia, she's a hoarder and her apartment was messy. But that's not what was bothering the niece.

It turns out the old woman had been placed in a locked Alzheimer's facility by another niece. "I want to go home," the old woman said when a county caseworker actually put the question to her. Now the agency is arranging for Meals on Wheels and other services so she can move back to her house.

Sometimes home is the best solution, and sometimes, for an elderly person who is frail, sick or confused, a nursing home or other facility is a safer choice. But who gets to decide that?

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. But the statute is vague enough to be problematic, says Utah Commission on Aging director Maureen Henry. 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.

That's not to say that families or facilities are ignoring the law, Henry says. 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, she adds.