|Posted on February 11, 2017 at 2:20 PM||comments (0)|
It is estimated that by 2035 there will be over 7- million elderly persons in the United States. The percent of the elderly requiring surrogate decision-making is rapidly increasing and the rate of increase is being made worse by government actions, extended military intervention “wars”, and current economic events.
The population of individuals with Developmental Disabilities, residing in mental hospitals can be counted. However, the number of individuals with chronic mental illness living outside mental institutions is unknown. Estimates are 25-40% of persons living on the street or in boarding homes and shelters are persons with chronic mental illness. Both groups require surrogate decision making for personal and financial affairs. We are facing a crisis.
Court appointed surrogates.
The legal process called “guardianship” is a court monitored system of surrogate assistance and it is broken. It cannot handle the current onslaught of the elderly, developmentally and mentally disabled individuals needing “surrogate assistance”.
In 1987 the Associated Press commenced a nation-wide study of guardianship. This study culminated in its Report “Guardians of the Elderly: An Ailing System”, which identified serious shortcomings including that Due Process Rights are lacking and, Standards for determining incapacity are unclear.
Petitions to courts which are presented to the court to support the appointment of a guardian, the surrogate. The petition will present basic information which is combined into data sets. The interrelation between these basic data sets are seldom understood by the party requesting appointment to be guardian or by the court.
The role of legal counsel for the ward in guardianship.
With regard to Due Process, the right to counsel for the ward/respondent in a guardianship is mandatory. The attorney must interview all the witnesses, understand clear and convincing evidence, be prepared to request expedited hearings to restore rights and finally, be prepared to initiate appellate proceedings.
At a hearing to appoint a surrogate the ward’s attorney will be involved in a proceeding where most courts are unprepared to make a finding of mental incapacity. Most attorneys for the ward do not understand that the court’s ruling will affect fundamental personal and property rights, It will require a full adversarial proceeding which guarantees due process, and establishes a base line for the respondent’s incapacity through expert witnesses. All provided at public expense.