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.
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," Henry says.
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 decisionmaking rights. Once the paperwork is in order, "hearings" average seconds, not minutes.
It's very rare for the state to seek guardianship of a senior, without family, except in cases where his life may be in danger. State Adult Protective Services investigators have seen the eccentric lifestyles, sloppy housekeeping, hoarding and constant falling that can make a relative or neighbor worry about an old person but these aren't proof enough for the state to become involved, says APS spokeswoman Debbie Booth.
The tension between protecting a senior from harm and protecting her right to live where she chooses constantly challenges Peter Hebertson and his caseworkers at Salt Lake County Aging Services. For example: A woman lives alone and eats Raisin Bran for every meal; she would definitely get better nutrition in an assisted-living facility, but she doesn't want to move. Old people have the right to take that kind of risk, Hebertson says. "They don't want to be disrupted from the place they spent all their Christmases. We need to let people make that decision and try to support it" with housekeeping services and Meals on Wheels.
What if an old woman smokes in bed and has burned a couple of pots on the stove? Still not proof that anyone else can make her move out of her house and into a facility, argues Hebertson. The cigarette smoking is a perfect example of the separate standard old people are sometimes held to, he says. "Most home fires from cigarette smoking have nothing to do with someone being old." When a young person gets drunk and passes out with a lit cigarette, no one suggests a nursing home, he says.