Introduction
Age is one of the defining criteria for a number of protections and benefits that our society has conferred upon older citizens. Yet one of the first challenges in identifying legal issues unique to older individuals is defining the age at which one is considered an “older” person. In many ways, it is a relative term based on behavior, physical status, and attitude, as well as chronological age. Many would find it shocking to use age 50 as the demarcation line, yet that is the age used as a membership criterion for AARP (formerly called the American Association of Retired Persons). Twenty‐five percent of the US population is age 50 or older; it is important to identify the legal issues that this group has in common with younger adults as well as issues that may be more pressing, if not unique, to this segment of the population.
Some of the protections and benefits that our society confers upon older citizens include protective services to investigate allegations of abuse...
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- 1.
Age is not the only criterion for these programs, but it certainly is an important one.
- 2.
It is important to note that a “living trust” or “revocable trust” is one type of trust arrangement. There are other mechanisms and ways to title assets which will minimize the need for appointment of a guardian to manage an incapacitated individual's funds. For example, by authorizing a signor or naming a co-owner of an asset, another individual will also be authorized to access the funds in the account.
- 3.
The testimony of Penelope A. Hommel contradicts the “both” part of this statement (Guardianship Over the Elderly 2003, 109).
- 4.
Some states, following the Uniform Guardianship and Protective Proceedings Act, use the term “guardian” for guardianship of the person, whereas “conservator” is used for the guardianship over the estate-the “ward” in a conservatorship is called a “protected person.” Still other states, such as New York and Ohio, use the term guardianship in its plenary sense, whereas conservatorship is a voluntary proceeding for an individual who is not adjudged incompetent, but needs assistance with their affairs. This article uses the latter terminology.
- 5.
For example, Maine requires only that a physician or licensed psychologist evaluate the proposed ward, whereas Kentucky requires an interdisciplinary evaluation by a physician, psychologist, and social worker.
- 6.
In Michigan, a 2003 state audit of five probate courts found widespread financial abuse by guardians, such as late payment of bills, lack of accounting, and borrowing interest-free loans from the estate. A Washington Post article reported that, since 1995 in Washington, DC, one of five guardians have gone years without reporting to the court, and in more than 24 cases, guardians or conservators have taken or mishandled money (Center for Social Gerontology 2004). A 2004 study by the United States Government Accountability Office ( 2004) shows that although all states require oversight, generally in the form of personal and accounting reports, fewer than half of the states require courts to actually review the submitted reports. Most of the courts surveyed in this study blamed insufficient funds for proper oversight. The lack of coordination between state courts and federal agencies perpetuate abuse. State courts and federal agencies do not systematically notify each other when a person is appointed a guardian or when a guardian or representative payee is abusing funds. Thus, an identified abuser in one system may remain in charge of finances in the other system. Also at issue is that the incidence of guardianship or representative payee abuse is unknown, in part because courts do not track basic information such as the number of guardians assigned. The Government Accountability Office study calls for both systematic information sharing and compilation of national data on the incidence of abuse.
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Lowder, J.L., Buzney, S.J., French, C.M., Loue, S. (2008). Legal Aspects of Aging. In: Loue, S.J., Sajatovic, M. (eds) Encyclopedia of Aging and Public Health. Springer, Boston, MA. https://doi.org/10.1007/978-0-387-33754-8_459
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