Guardianship: Court of Last Resort for the Elderly and Disabled

The author, Winsor C. Schmidt, Jr., is Professor of Political Science and Director of the Center of Health Services Research at the University of Memphis. A graduate of Harvard University (A.B. 1970), American University (J.D. 1973), and the University of Virginia (LL.M. 1984), he has published over 55 articles, book chapters and final reports on guardianship, protective services, medical malpractice, and other health and mental health law and policy subjects.

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The following is a brief description by the author of his book: "Approximately half a million people are under guardianship in the United States. Guardianship is intended as a last resort, but this court of last resort is an institutional fiefdom that has historically received little scrutiny. As the national population ages and the lifespan increases, more people are potentially subject to being adjudicated incompetent in court and having a guardian appointed as a surrogate decisionmaker.

"This book informs health, social service and legal professionals, as well as judges and legislators, about the findings, analyses, conclusions and implications from over a decade of national and state research on guardianship and protective services for the elderly and disabled...

"The book begins with an overview case study of guardianship and the need for reform from the state that represents America's demographic future, Florida. Exploration of the extent of unmet need for guardian services follows. Findings from a national study of public guardianship and the elderly are detailed.

"The actual functioning of guardianship court is reported by addressing several questions. What happens to people in the court of last resort? What is known and what is not known about guardianship? What happens beyond the court of last resort in the even more hidden area of involuntary adult protective services?

"The conclusion consists of a model public guardianship statute and commentary that is a product of the research on guardianship. The statute is designed to provide a framework for much needed reform of the court of last resort."

face is the fact that elderly victims themselves may not be reliable witnesses. Sometimes, to avoid conflict, they will agree to everything that either the prosecutor or defense attorney suggests. In other cases, memory impairments and/or medication can cause an elder to become confused or tired during testimony. Elders with communication difficulties and physical ailments have to be accommodated in the courtroom, or testimony must be obtained by taking the courtroom to a bedridden victim. Moreover, most elders who have been abused are extremely vulnerable and trusted their abusers implicitly, frequently signing anything this trusted person put in front of them, failing to pay attention to the details of a transaction. They may be able, to recount these painful instances of misplaced trust only in vague generalities, making it easy for defense attorneys to poke large holes in their testimony.

Indeed, the defense often uses fluctuations in the victim's mental status from day to day, or even hour to hour, to establish that the victim had a "moment of lucidity" and it was with knowing, intelligent, and competent intent that they made a significant monetary gift or agreed to have sex with their abuser. The prosecution must counter this theory by offering, through the totality of circumstances, evidence that the abuser knew that the victim was too mentally impaired to give legal consent.

Expert testimony from a psychiatrist, geriatrician, neurologist, or family practitioner is essential to prove that there was no valid grant of permission to take the victim's property, have sex with the victim, or for a caregiver to fail to provide medical treatment.

When mental impairments are obvious, prosecutors may proceed to trial without the elder's testimony. Detailed statements from neighbors, family members, friends, church and business associates as to a victim's mental status can be compelling evidence that an elder was subjected to abuse. But many prosecutors' offices simply lack adequate resources to support the exhaustive investigations that go into obtaining this information.

Recommendations

Incentives for reporting elder abuse must be in place as a form of prevention. Mandatory reporting laws for all forms of elder abuse must be enacted, or the system must recognize, reward, and encourage the voluntary reporting of elder abuse. Immunity from liability must be given to persons who in good faith report elder abuse.

Dedication of significant resources to the investigation and prosecution of elder abuse is paramount in an aging society. Vulnerable elders at risk of abuse must be provided the opportunity for comprehensive geriatric assessments that deal with medical, psychiatric, pharmacological, and social issues.

Because violent crime is rampant, prosecuting elder abuse crimes is often viewed as a lower priority in financially strained governmental budgets. Greater public awareness of the problem can serve the dual goals of prevention and forcing greater allocation of funds for elder abuse prosecutions. The work is time consuming and often tedious. Dedicated professionals are critical in the fight against elder abuse. At the same time, judges must be sensitized to the issues involved.