Evolutionary Changes in Legal Remedies for the Impaired Elderly

Summary

This chapter discusses the evolution of the basic legal doctrine which governs the legal relationships and devices which concern the impaired elderly, namely, informed consent, incompetency, guardianship, and protective services. Several social, economic, ethical, and demographic trends are causing actors in the legal system to examine how existing legal doctrine can be adapted to preserve autonomy and enhance self- determination for the impaired person. The creative and deliberate use of durable powers of attorney (where authorized by statute), natural death acts, and living wills, trusts, and joint bank accounts have the potential effect of extending the will and power of an individual into a time when such power would be relinquished by virtue of impairment. In addition, in states such as California, an extensive revision of guardianship statutes has been undertaken to ensure the application of the least-restrictive alternative doctrine in protective services. The evolution of legal doctrine and practice offers the promise of reversing what some might see as a trend toward excessive intrusion into the rights of the impaired person.