William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Month: October 2016

Guardianship: Giving up Freedom or Gifting Security to your Loved One

By Casey Wynn, Elder & Disability Law Clinic Student, Fall 2016

Have you ever heard the saying “age is but a number?” Typically, it is a harmless phrase that is thrown around when a friend has a birthday or a loved one is celebrating retirement. It is fun to say, and uplifting for others to hear, but nothing could be further from the truth when talking about a mentally challenged senior.

Unlike members of the general population which have the capacity to protect themselves against abuse, manipulation, and fraud, a mentally disabled person is more vulnerable to these dangers and may even have difficulty making important life decisions. When that struggling individual is a child, the solution is simple– his or her parents can and do make all the important medical and life decisions because the law gives them that authority. However, what happens when your precious child becomes an adult who is mentally unable to make decisions but legally holds the right to do so? In those cases, it may be time to seek guardianship because age does matter and could prevent you from helping your child in ways that you have in the past. Guardianships are used for mentally incapacitated individuals of all ages who are unable to make sound decisions regarding their own well-being and financial security.

Some people will avoid instituting a guardianship, seeing it as an affront to a loved one’s freedom. This is an understandable reaction considering American culture. At a young age, we are taught the value of freedom and few, if any, words are considered more precious.  Freedom may seem like a simple word, but for centuries brave men and women have valiantly fought to ensure that Americans remain free. Reflecting upon these sacrifices makes it difficult to give up our own freedom and gut wrenching to take someone else’s freedom away. But before  eliminating all possibility of a guardianship, there are a few things to consider.

While it is true that guardianships take away an individual’s right to make legal and personal decisions for himself; in return it gives him protections that are not otherwise available. Without a Guardian, a mentally incapacitated individual is more likely to fall victim to poor decisions and/or outside influences. Now that doesn’t mean that you should rush out to seek guardianship over all your adult relatives who make poor choices, nor would the system allow it. The beauty of this process is that the court decides when a guardianship is appropriate based largely upon a medical evaluation and the input of a court-appointed lawyer referred to as the Guardian ad litem. Put simply, if an individual has the mental capacity to make decisions and understand the consequences of those decisions, then guardianship will be denied. Also, note that guardianships are not always forever; they can be reversed via a court ruling if circumstances change. Lastly, guardianship is a fantastic planning tool for caregivers. Although it can be difficult to think about, it is important to consider what should happen to our dependent loved ones once we pass on or are no longer able to care for them. If a successor guardian is included in the guardianship petition, it makes for a much smoother process once the primary guardian is no longer able to serve due to death, illness, or for other reasons.

Thus, guardianships shouldn’t viewed with disgust; they should be embraced as a way to protect our loved ones. A guardianship doesn’t change who the person is. They are and will forever be their own person and nothing stops the Guardian from considering the individual’s wishes when making these important decisions. While freedom is one of the most important things a person can have, when that freedom endangers a person’s health or financial security, a guardianship is often best gift that we can give.


Dignity & Dementia

By Elias Kerby, Elder & Disability Law Clinic Student, Fall 2016

“Dementia does not rob someone of their dignity, it’s our reaction to them that does.” This quote by dementia and Alzheimer’s care expert Teepa Snow speaks volumes about the hidden suffering of those living with one of the most common disabilities among the elderly – dementia. One of the biggest hurdles to overcome in improving the quality of life of any disabled individual is understanding their obstacles and their experiences so you can best give them the respect and dignity they deserve.

I used to work at a hospital, and my boss would always refer to the Sylvia Plath poem “The Eye-Mote” when trying to explain what dementia patients who are unable to communicate really want. The poem, which is about Plath’s own extended hospital stay where she was unable to move or speak, shows the experience of being trapped in a body from the patient’s side. She spends weeks lying in a hospital bed, aware but locked in, unable to communicate her needs and stuck passively watching as caretakers and visitors shape the world she lives in. My boss would point to a specific line and say that it crystallized the needs of those living with dementia – “What I want back is what I was.”

That hospital required caretakers had to go through an exercise known as the “simulated dementia experience,” which was meant to give them a taste of what life with dementia is like. I went through the simulated dementia experience, and would recommend something similar to anyone who works with dementia patients.

First, rubber gloves are taped to your hands to simulate a lack of feeling and dexterity. Then, popcorn kernels are put in your shoes to reproduce the fibromyalgia of just moving around. You receive goggles that block out certain colors and have randomly appearing blind spots, as well as headphones that play a random selection of noises – cars honking, the phone ringing, music from your youth – everything having to do with your senses and experience of the world becomes chaotic and unpredictable.

After you’re suited up, a caretaker reads you a list of instructions for cleaning up your room at a care facility and getting ready for bed at night. Of course, you can’t hear him because your auditory hallucinations are too loud. He then leads you into your room, which is dark and messy with random flashes of light and strange sounds coming from places they shouldn’t. You know you’re supposed to be doing something, but not sure what, so you look to the printed instructions on the wall – which at this point you can’t read because the letters are jumbled up or missing. Time goes by, you surrender because trying to figure out what you’re supposed to do is futile, and you feel frustrated at your inability to act. Eventually, the caretaker comes back, sees you have not gotten ready for bed, and yells at you for not doing what he said.

From the caretaker’s point of view, he took you to your room and gave you simple instructions to do things you’ve done a thousand times before. He thinks he’s given you all the instruction you need but is unaware of how difficult everything is on your side of the equation. Without exercises like this, the hospital caretakers might make the same mistakes the caretaker in the simulated dementia experience made, and which caretakers of dementia patients do make all the time. Situations like this give rise to much of the vulnerability dementia patients feel, where the difficulty of daily life is made worse by our inadequate response to their needs.

The Elder & Disability Law Clinic is devoted to the dignity, care, and respect of dementia patients and seeks to promote a fuller understanding of the experience of living with dementia. Every person is deserving of being treated with dignity, and dementia patients are often at their most vulnerable. Treating dementia patients without understanding their condition can make them feel like they have no dignity, which should never be the case. The EDLC is committed to promoting informed care practices so that every caretaker can have the resources they need to be well-equipped in caring for their dementia patients.

Cultural Differences in the Ways We Care For Our Elders in America

By Agata Przekop, Elder & Disability Law Clinic Student, Fall 2016

As someone who comes from what we can generally call Eastern culture, I would like to share my thoughts and observations about differences in social conventions when it comes to older people and issues that affect the aging population.

American values tend to focus strongly around youth and individualism, while Polish people tend to identify themselves as a part of a collective society. This distinction comes from different cultural assumptions, traditions and challenges that the two nations faced in their histories. Of course there are people in Western culture that are strongly family oriented and have extremely close ties with their parents and grandparents, and people from Eastern culture that are more future-oriented, independent and self-reliant. However, I think it is fair to say that there are some, more or less defined general cultural assumptions and principals that characterize both those worlds. For example, in an Eastern country like Poland, it is not that uncommon to find a family of multiple generations living under the same roof. Because of this, it is far more likely that when a parent or a grandparent needs daily assistance, a family member will treat it as his duty to step up as a caregiver. Because of this social expectation, it is uncommon to put an elder person to a nursing home or assisted living facility. Younger family members are not only expected to become caregivers of their elders, they would expose themselves to a social ostracism if they didn’t follow this convention.

In collective societies, the tradition is to depend on one another, and to build strong family ties, while Americans, from very early in their lives, are taught to consider themselves as separate individuals who are responsible for their own lives and decisions with strong emphasis for personal freedom and independence. I think that it is this feeling of losing independence and becoming a burden on the family which determines the older Americans willingness to accept the possibility of moving to a nursing home.

In the Eastern culture, there is an assumption that children have a moral obligation to take care of their parents when they get older, and a devoted, family-oriented child is a sign that he or she was raised properly. While in Western society, successful parenting implicates teaching a child how to be self-reliant, and loosening of a parent-child tie is a natural process.

Being a part of a family-oriented society results in implied respect, understanding and empathy towards older people, but family obligations can also prevent individuals from moving forward and pursuing their own dreams. On the other hand, being independent and self-reliant helps one to become successful in life, but lack of those traditions that impose responsibility for one’s elders might result in a situation where older generation is left to their own devices and their needs are forgotten.

Having all the in mind, I’m positive that those two cultures can learn from each other and inspire one another. It is our job to create a society and environment for our elders which make them feel comfortable. The key is to treat our elders in a way we would like to be treated, and we cannot forget that we’ll all grow our gray hairs someday.