As the number of retirement age baby boomers continues to rise, we continue to grow our unprecedented proportion of old people in our population. What does this mean for our future? Well, lots of different things, but I’m focusing on an often neglected side-effect of our longevity: the likelihood of incapacity.
Capacity itself is a broad topic in the law. In my area of practice – we typically follow the question whether someone has (or had) capacity with the focusing query – capacity to do what? Execute a power of attorney, sign a will, direct one’s medical care? Here’s a link to a document from the American Geriatrics Society about medical capacity that is an excellent Q&A on the topic of capacity in the medical decision-making context.
There are often many ways to enhance someone’s capacity if they are facing cognitive challenges. Some of these enhancements can assist greatly where the deficit in capacity is of a more temporary nature, such as confusion. Confusion can have a wide array of sources including alcohol or substance intoxication; poor heart or lung function (resulting in e.g., hypoxia); malnutrition or dehydration; blood sugar too low or too high; medications not managed effectively or withdrawal of medication; head injury or other bodily trauma; infection. Insomnia; and a number of other diseases and conditions. I mention these to contrast them with a kind of capacity that is typically not temporary and likely to diminish further as the underlying disease progresses or as the condition worsens. The kind of incapacity I am considering is not the temporary or reversible kind.
There are a number of medical conditions or diseases which can affect capacity as well. For example, there are several types of dementia including Alzheimer’s disease, alcoholic dementia, vascular dementia, frontotemporal dementia (Pick’s disease is one example) and Diffuse Lewy Body dementia which can occur with Parkinson’s disease. For our purposes in Colorado, one relevant statutory reference is to C.R.S. 15-14-102(5), which concerns the definitions for protective proceedings:
“Incapacitated person” means an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.
In the context of the medical conditions and diseases which cause dementia, a major goal of a capacity determination is to not just identify the disease, condition or injury which is the cause of the ongoing dementia (and which often progressively worsens over time), but to identify and promote the AIP’s self-determination and other rights to the extent possible. Planning for the future can typically be accomplished even after a diagnosis or dementia such as Alzheimer’s. The Alzheimer’s Association has a helpful brochure here.
While a person with dementia faces a host of challenges to their autonomy and self-management of activities of daily living (ADL), appointment of a guardian for an alleged incapacitated person need not necessarily be a self-fulfilling prophecy in that taking the AIP’s rights away makes them less competent.
Here is a link to the Colorado Judicial Branch’s website which contains helpful information about adult guardianship in Colorado and the probate court process known as “protective proceedings.” The Guardianship Alliance of Colorado also has helpful resources, particularly pertaining to the expectations and duties of a guardian for an adult. Finally, here’s a link to the 2016 Senior Law Handbook, published by the Colorado Bar Association. Chapter 26 is devoted to guardianship of adults.
So what is the overall nature of an adult guardianship proceeding? It is called a protective proceeding because its underlying aim is to protect the well-being of vulnerable adults. This protection comes at a steep price however, the near complete stripping of civil rights of the AIP. The ward will retain the right to vote, however. So what is the task of a petitioner (the person seeking a guardianship) and what is the court’s role? Within the context of protecting a vulnerable individual and based on all the cognitive and other deficits which prevent the person from functioning at an autonomous level, there are many losses sustained. Amidst these losses, however, is the person’s ongoing right to self-determination. Self-determination is an ancient right as far as the law goes, part of the inviolable rights which set apart humankind from other beings in the animal kingdom.
Self-determination is something not often discussed except in the most desperate of circumstances, hence its relevance to this discussion. A basic precept of international human rights law (particularly in the post-colonial era), in our country’s history, it has been relevant to American Indian peoples, the disabled and other marginalized groups in our legal history and is enshrined in many countries’ constitutions.
In the future, I will be taking a further look at how the self-determination of a ward (after judicial determination of incapacity) can be supported by a guardian.
© 2016 Barbara Cashman www.DenverElderLaw.org