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Guardianship : 'If You're Old, You Can't Be Foolish'

September 27, 1987|FRED BAYLES and SCOTT McCARTNEY | Associated Press

FORT LAUDERDALE, Fla. — Billie sat at the table, trying to joke with the social workers and lawyers sitting around her. "Are you talking about me?" she asked the strangers who said they were there to help.

The man beside her, her lawyer she was told, softly explained that she needed a guardian, someone who would handle the everyday worries.

"Does this mean I won't be able to go back to where I live?" the 74-year-old woman asked. "I still want to get out and take care of my house and do shopping. I feel well enough to be on my own."

Despite her doubts, Billie was declared incompetent and assigned a guardian: another stranger who would control her life, from where she would live to how her money would be spent. It took only a few minutes.

Not Unusual

The informal judicial hearing witnessed by AP reporters in the Fort Lauderdale boarding home was not unusual. An average of 10 people a week are placed under guardianship in this community of retirees. Nationally, 300,000 to 400,000 senior citizens are under guardianship.

What was unusual was that Billie had her "day in court" at all.

An investigation by the Associated Press found that senior citizens facing guardianship are often denied courtroom rights considered essential to criminal defendants and those being committed to mental hospitals.

A review of more than 2,200 cases around the country showed that 44% of the elderly were not represented by attorneys; almost half did not attend their own hearings.

In fact, more than one in four cases had no hearings. And in places such as Cleveland or Charlotte, N.C., a proposed ward may not even get a judge--a court clerk conducts hearings and issues the ruling.

Lax Standards

The AP also found laws vague in defining who needs guardianship, lax standards in determining the proposed ward's medical and psychological status and insensitivity toward the elderly throughout the legal process.

Combined, these factors make it very easy to get a guardianship and hard for the elderly to defend themselves against the process.

"When somebody goes to jail, the court system has bent over backward with due process. But there is no such thing with a guardian," said Ina Katich, a Denver expert on law and the elderly.

But the process of placing someone under guardianship is not just a question of legal rights. It involves issues of medicine, psychiatry, geriatrics and society's attitudes toward the elderly.

D'Jean Testa, a Legal Services attorney in Phoenix, recounts story after story of people who faced guardianship because their actions did not fit what society expects of older people.

In one case, a daughter sought guardianship for her mother because the elderly woman wanted to buy a camper and tour the country with a male friend. In another, a son sought guardianship to stop his father's plans to remarry.

'Can't Be Foolish'

"If you're old, you can't be foolish," Testa said.

This bias is reflected in the wording of guardianship law and the way courts handle their wards.

Guardianship is granted when a court believes a person is incompetent: unable to handle one's affairs or care for oneself. But a survey by the American Bar Assn. found that in 25 states "advanced age" is enough cause to find someone incompetent. Other reasons are equally vague, from "improvidence" in Ohio to "spendthrift" in Massachusetts and "habitual drunkard" in several states.

"Advanced age just isn't a good enough reason to appoint a guardian," said Gwen Bedford, a national director of the American Assn. of Retired Persons. "You've got to tell the difference between someone who is just eccentric and someone who really is incapacitated."

Advanced age was given as the reason for incompetence in 8% of the cases the AP studied.

Although the competency of the elderly comes under close scrutiny, little is done to tailor the legal process to their special needs and problems.

Hard-to-Read Notices

Notices of guardianship petitions are often printed in hard-to-read legalese. For example, old people facing guardianship in Texas receive this notice calling them to court:

"... at or before 10 a.m. of the Monday next after the expiration of 10 days after the date of service of this citation by filing a written answer to the application of (petitioner) filed in said court on the (date) alleging said ward has no guardian and praying for the appointment of the person and estate of said ward. At said above mentioned time and place, said ward and all other persons may contest said application if they so desire."

Such warnings, sent by mail or delivered by sheriff's deputies with no other explanation, do little to inform senior citizens of their rights or the implications of guardianship.

Only 14 states specifically require that the elderly be informed of their rights and what freedoms they would lose under guardianship.

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