Posted on: Sunday, July 28th, 2013
I realized the other day there are a handful of things I never tire of watching. One of those is probate court proceedings. Admittedly I watch probate court proceedings in part because I like to watch judges and get to know their propensities – always helpful for both the cases I have in front of them now and the cases I will have before those judges in the future. But what really intrigues me about watching probate court proceedings is to observe how our society is dealing with the primary legal conflict associated with our aging population – that issue is: striking the balance between the dignity and safety of vulnerable adults.
I advise clients on this balance every day. The typical scenario is a parent who is in decline. They are still in their home. They want to stay there. But the child has concerns as to the parent’s ability to stay in the home and be safe. Sometimes the parent is compliant and agrees to having caregivers in the home, limitations on (or elimination of) their driving rights, and physical modifications to the home. But in many cases these steps are either insufficient to provide safety or are simply rejected by a stridently independent (sometimes suspicious and paranoid) parent. So the ball goes back to the child. How concerned are they? Are their concerns real, exaggerated, maybe even motivated by unhealthy family dynamics? In giving advice I often resort to the one-year rule discussed in another post on this blog. But, to be sure, the answer is never easy, and as a result, many of these cases end up in Court.
The law in adult guardianship and conservatorship proceedings is heavily weighted in favor of protecting the independence and dignity of the vulnerable adult. The standard for allowing the court to intervene involves at least two hurdles: (1) Is the subject of the petition sufficiently impaired (for a guardianship the standard is whether the person is unable to make and communicate informed decisions, for a conservator the standard is whether the person is unable to manage their affairs); and even if the first threshold is met, the court must also deny the petition if (2) sufficient alternative protections are or could be put in place. In addition to these difficult threshold issues that the court must decide, the burden in these cases is on the party seeking the guardianship or conservatorship and the standard by which they must prove the case is the highest standard in the law: clear and convincing evidence. As should be evident, the law considers a court’s intervention into the life of a vulnerable adult as a very serious undertaking only to be allowed where no other result is adequate. And for good reason, the imposition of a guardianship or conservatorship over an adult is an invasion by the state into the fundamental rights of that person. It essentially reduces an adult to the legal status of a child.
Now here’s the reality. Notwithstanding the barriers placed on judges, they appoint guardians and conservators with amazing regularity – a frequency which many advocates for the aged and vulnerable consider to be excessive. This is because even though judges understand the law, most judges want to protect vulnerable people, they see that as one of the primary jobs of the probate court; and they certainly don’t want disasters to occur in situations where they had a chance to stop the disaster before it happened. Cases like that can make them look bad.
Further, as I have observed before, it is important to realize that we are the first generation to deal with the issue of vulnerable adults in the volume that it currently exists. Until now, people were not living with any regularity into their 80’s, 90’s and beyond. As a result, the numbers of people suffering from dementia and other cognitive impairments associated with aging were nowhere near what they are today. And, at the same time, the families involved in these cases are more fractured today than in generations past.
All this adds up to a fascinating dynamic which plays out in our probate courts on a daily basis, where petitions to take away the rights of older adults are being heard and where judges are being forced to strike a balance in each case between dignity and safety. Talk about the scales of justice, striking this balance requires the most delicate of touches.