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.