By Dawn Adams
A popular topic in the media lately is the “silver tsunami” — the huge wave of baby boomers who will leave the workforce in the coming years and become eligible for the senior discount. As advancements in health care continue, the number of potential elder law clients increases. STATS Indiana reports the Hoosier population age 60 and older will grow from 1.3 million in 2015 to nearly 2 million by 2040. The legal system needs to prepare today for the influx of issues that will wash ashore.
One system already showing an impact from the wave is guardianship. Disabilities related to aging may impact an individual’s capacity to make certain decisions. This is when guardianship discussions arise. Usually, family members serve as guardians, but there are also “professional guardians” often used by facilities.
Indiana does not currently have statewide standards for guardians to follow. Consequently, confusion about the role often leads to individuals being restricted from exercising basic rights such as voting or the ability to make their own choices when it comes to social preferences. Guardianship can be an appropriate legal tool, but more often than not, a limited guardianship or an alternative, such as supported decision-making, is a less restrictive and more appropriate option.
When a guardian goes beyond the boundaries of the guardianship and begins making everyday choices for their ward, it can diminish a person’s quality of life. By controlling who a person can talk to, what they can eat or even how they get their entertainment, isolation, mental or physical abuse, and sexual abuse are often the end result of a person’s erosion of rights.
Elder abuse will likely increase as the tsunami gains momentum. Caregivers in nursing facilities, home health care and even family members treat their elders disrespectfully. Elders are more likely to see people they should be able to trust do unthinkable things — steal their money, isolate them from the outside world, mentally abuse and physically harm them.
In Indiana, Adult Protective Services reported in its 2015 annual report that it received 34,721 calls for service and opened 9,550 cases; 6,000 of those cases were to investigate exploitation, neglect and abuse of individuals aged 60 and older. The problem is worse in rural Indiana, where a lack of community resources, services and supports increases the challenge to properly serve the aging population.
So, how do we prepare today for the impending wave? Evacuation is not an option for this particular tsunami. But we can still prepare by collectively taking action to change the guardianship and adult protection systems in Indiana.
As an attorney representing clients that will undoubtedly grow older through the years, it is your duty to have a working knowledge of the tools available to support clients. Start by educating yourself on alternatives to guardianship. Clients should be advised of all options and guardianship should be considered a last-resort measure. Limited guardianships, durable revocable powers of attorney and supported decision-making are alternatives that will allow your client to continue to have as much control of their decisions as possible.
Education for guardians ad litem is an important preparation measure for the judicial system. As a matter of law, a GAL shall be appointed to represent a potential ward in guardianship hearings. This may be a person’s first and best chance to seek an alternative to guardianship. In order to serve that client’s needs, GALs need to be educated on less-restrictive alternatives than guardianship.
For those individuals who either legitimately require a guardian or have an inappropriate guardianship, accountability and oversight measures must be in place to prevent, identify and stop abuse. Recently, a law signed in Florida established an oversight office that will create standards and rules for guardians to follow. Of course, without accountability and enforcement measures, standards may not be implemented. In order to address this issue, Florida passed a bill in 2015 that imposes criminal penalties for abuse of seniors in guardianship and the oversight office has full enforcement power and the ability to revoke guardianships.
Legal safeguards put into place to protect elders from potential abuse due to guardianships will help, but it is clear from APS reports that elder abuse is a systemic problem. Underfunded, understaffed and under scrutiny, the 18 APS units that comprise Indiana’s system are overworked and barely able to meet demand. A lack of resources forces smaller units to limit the types of cases they open, while larger units may be able to provide more or different services. It is wholly dependent on where you live as to the type of APS protection a person can access.
The federal government has been working to create support systems for states to better serve their aging population. The U.S. Department of Health and Human Services Administration for Community Living has issued draft voluntary consensus guidelines for state APS systems, and in a 2012-2014 report to Congress, the federal Elder Justice Coordinating Council called for a national APS system.
The National Adult Protective Services Resource Center conducted a review of the Indiana system in 2014. They found that the employees and investigators within the APS system are dedicated to their mission. But, because each unit operates independently without uniform statewide standards, NAPSRC considers the most important changes needed are the development and implementation of state standards, policies and practices that include accountability measures.
Just as the guardianship system needs to be standardized with clear expectations for guardians to follow and a mechanism put into place for accountability, the same needs to be done for Indiana’s APS system. Hoosiers need to know and understand what will happen if they have a legal guardian, and those boomers comprising the impending wave of elders need to know that there are systems in place to help protect them from abuse, exploitation and neglect.
As leaders in our communities, we owe our elders the respect they are due. Are your clients prepared for what awaits them in their golden years? Are YOU prepared?•
Dawn M. Adams, J.D., is the executive director of Indiana Disability Rights. She can be reached at DawAdams@IndianaDisabilityRights.org or 317-722-5555, ext. 455. The opinions expressed are those of the author.