CHILDREN

Decision to Have Children

 

Q. Who makes the decision to become a parent?

A. The Supreme Court in Roe v. Wade and other cases has declared that the decision of
whether or not to have a child is a very personal one and that the decision is protected by the
right of privacy under the United States Constitution. This means that individuals who wish to
have a child cannot be barred from doing so (unless perhaps they are incarcerated). Individuals
who do not wish to have a child have a legal right to obtain and use contraceptives.

 

Q. What if one spouse wants children and the other does not?

A. This is a significant emotional issue that, of course, can be very difficult. If one member of the
married couple wants a child and the other does not, that could be a basis for a divorce. A
disagreement on such a fundamental issue could be an “irreconcilable difference” under the nofault
divorce laws of most states. In states that have grounds for divorce based on someone
being at fault, a disagreement on the question of whether to have children could be viewed as
“mental cruelty,” and thus a basis for ending the marriage.
Beyond divorce, remedies are limited. The courts cannot force a pregnant woman to stop
the pregnancy, nor does the law require a wife to have her husband’s permission for an
abortion.

Abortion

 

Q. What is the current status of abortion law?

A. As of the year 2000, women still have a right to an abortion. In the 1992, the U.S. Supreme
Court in the case of Planned Parenthood v. Casey reaffirmed its 1973 decision in Roe v. Wade
that women have a constitutional right to seek an abortion during the early stages of pregnancy.
States, however, do have a right to regulate how abortions are performed and states may ban
abortions after the fetus is viable (able to live outside the womb) unless the mother’s life or
health is endangered. The scope of regulation and funding of abortions by the government varies
from state to state. In Casey, the Supreme Court held it was permissible for states to impose a
24-hour waiting period on obtaining abortions and to require a minor to have consent of one
parent or a judge for an abortion.

 

Childbirth

 

Q. Are there any rules prohibiting parents from having their children born at home?

A. No, at-home births generally are an option for parents. The mother should have good
prenatal care, and she should make sure the health care provider believes the delivery will not
pose significant risks to the mother or child. If the delivery is risky for the mother or child, it is
much better to use a hospital. Some states allow nurse-midwives to deliver children at the
parents’ home or at a birthing center. Other states allow nurse-midwives to practice only at
hospitals or under the direct supervision of a physician.

 

Q. If the delivery is at a hospital, may the father or a sibling be present?

A. At most hospitals, the father may be present at birth. Hospitals often prefer that the father
and mother have gone through some training before the delivery. Parents should check with their
hospitals about other rules and about whether siblings would be allowed in the delivery room.

 

 

 



Q. What are the rights of parents?

 

A. Parents have a right to direct the care, control, and upbringing of their children. This gives
them the power to make various decisions, including where to live, what school to attend, what
religion to follow, and what medical treatment to obtain.
Normally the state may not interfere in these decisions. Only in life-threatening or extreme
situations will the courts step in to overrule parents. For example, when a child might die without
the medical care that the parents refuse to provide, a judge may make the child a ward of the
court and order that the care be provided. Parents have been prosecuted for withholding
medical treatment from seriously ill children. This is true even in situations where parents act out
of religious belief.
There may be certain medical procedures, however, that the law allows “mature minors”
to decide upon for themselves, even if their parents disagree. For example, parents have no
absolute veto power over a minor’s decision to use contraceptives or to obtain an abortion.
Parents also have the legal authority to control their children’s behavior and social lives.
Children have a duty to obey their parents’ reasonable rules and commands. Parents may
discipline or punish their children appropriately. They may not, however, use cruel methods or
excessive force; that constitutes child abuse.

 

Q. What are the legal rights of children?

A. Children have a unique status under the law. This chapter cannot explain this special status
fully. However, it can point out a few of the major differences between the rights of adults and
children.
Most important, children have a right to be supported by their parents. At minimum, this
means food, shelter, clothing, medical care and education.
The law defines children as unmarried persons under the age of majority–usually
eighteen–who have not left home to support themselves. The law protects children from abuse
and neglect. It also entitles them to the protection of the state. Children may be removed from
their home if it is necessary to ensure them a safe, supportive environment. This removal may be
temporary or permanent.
The law allows children to sue. However, in most instances an adult legal representative
must begin the suit.
Children accused of committing crimes are subject to the juvenile courts of their state, not
the regular criminal justice system. (In some states, children accused of serious crimes who are
above a certain age—such as thirteen—may be tried in court as adults.) Juvenile courts entitle
children to only some of the due process safeguards that adults receive. In return, these courts
have more freedom to deal with juveniles in an effort to rehabilitate them.

 

Q. How long do parents’ legal obligations to their children continue?

A. Parents are legally responsible for their children until they reach the age of majority (usually
eighteen), marry, or leave home to support themselves. In some states, divorced parents may be
obliged to pay for a child’s college education or trade school. In addition, a parent’s duty to
support a disabled child might continue for the child’s entire life.

WHO CONTROLS THE MONEY CHILDREN EARN OR INHERIT?

Generally, parents do not have unlimited, direct control over their children’s money. If children
earn or inherit money, that money must be used for the children=s benefit. Some states require
the appointment of a guardian under court supervision if a child has substantial funds. Unless a
court appoints someone else, parents are the guardians of their children’s money. The parents
are legally responsible for managing the money properly and using it for their children’s needs.

 

 


Q. Are parents financially responsible for the acts of their children?

 

A. The law on this varies from state to state. Some states make parents financially responsible
for damage caused by their children, but the states may place limits on the amount of liability. In
Illinois, for example, parents or guardians may be required to pay no more than $2,500 for the
“willful or malicious acts” of minor children who harm another person or property.
Generally, if a child has an auto accident while driving a parent’s car, the parent’s auto
insurance policy will cover the loss to the same extent it would if the parent had been driving the
car (although parents usually have to pay higher insurance premiums to cover young drivers).
THE DUTIES OF ADULT CHILDREN TOWARD THEIR PARENTS
Adult children normally have no responsibilities toward their parents. In return, their parents
have no duties toward them. However, there are exceptions. In some states, children must
support parents who otherwise would be on welfare. The children can avoid paying support if
they can show that the parents did not care for them when they were underage. In some states,
children may have to contribute to the support of parents in a state hospital or mental institution.
However, the children’s ability to pay–not the actual costs of the care–usually determines how
much they must pay.

Adoption

 

Q. How does one adopt a child?

A. Adoption laws vary from state to state. For adopting a child who is not related to the
adoptive parent or parents, there generally are two types of adoptions: agency adoptions and
private adoptions.

 

Q. What is an agency adoption?

A. As the name implies, the parents work though a licensed agency. The agency often
supervises the care of biological mothers who are willing to give up their children, and it assists
in the placement of children after birth. Agencies screen adoptive parents–often extensively–
before the adoption proceeds. Some agencies have long waiting lists of parents. Some agencies
also specialize in placing children born in foreign countries.

 

Q. What is a private adoption?

A. Private adoptions bypass the use of agencies and they may help bypass the long waiting lists
as well. The process may begin when people who seek to adopt a child contact an attorney
who specializes in adoptions. The attorney may work with physicians who are aware of women
willing to give up children for adoption. Sometimes would-be parents will place ads in
newspapers seeking women who are willing to place their babies for adoption.
In most states, adoptive parents are allowed to pay a biological mother’s medical
expenses and certain other costs during the pregnancy. But adoptive parents are not allowed to
pay the biological mother specifically to give up the child. The law treats this as a “black market
adoption,” the buying and selling of children, and it’s a crime in every state.

 

 


Q. Is court approval necessary for an adoption?

 

A. Yes. Court approval is needed for both agency and private adoptions. Many states also
require that the adoptive parents be approved by a social service agency.

 

Q. Can a biological mother revoke her consent to adoption?

A. Yes, but there are limits on her right to revoke consent. In most states, a biological mother
who initially consents to a child’s adoption before birth, may revoke that consent after birth. In
other words, the mother’s consent usually is not final or binding until a certain period of time
after birth. In most states that time period is relatively short, such as two to eight days. If a
biological mother consented to adoption during the proper period of time after birth, it is much
harder for her to revoke her consent. Following an after-birth consent, a biological mother
generally may revoke her consent only if she can show that there was fraud or duress. Fraud
could be found if the adoption agency or attorney lied to her about the consequences of what
she was doing. Duress might exist if a person at the adoption agency threatened the biological
mother with humiliation if she did not sign. A biological mother’s change of heart normally is not
enough by itself to revoke an after-birth adoption consent. Although a mother may feel
emotionally drained and under stress after birth of a child that she plans to give up for adoption,
that type of stress usually is not enough to revoke an adoption unless the person or agency that
obtained the mother’s consent used harsh tactics to obtain her consent.

 

Q. Is the biological father’s consent necessary?

A. Generally, yes–at least if the biological father is known. He should be notified of the birth
and pending adoption so that he may consent or object. If the father is not known, the adoption
may proceed without his consent (although adoptive parents can feel safer about the validity of
their adoption if the biological father has been notified and agreed to it). If a biological father is
not notified, he may later contest the adoption if he acts within a certain period of time after the
child’s birth or adoption. (Six months is a typical time period, although the period varies
between states.)

 

Q. What is a “related adoption”?

A. A “related adoption” is one in which a child’s relatives, such as grandparents or an aunt and
uncle, formally adopt a child as their own. This might occur if the child’s biological parents are
deceased or are otherwise unable to care for the child.

 

Q. What is a stepparent adoption?

A. A stepparent adoption is one in which a child’s biological parent marries someone who
wishes to adopt the biological parent’s child and is able to do so.

 

Q. What happens if the child’s other biological parent does not agree to the adoption
by the stepparent?

A. If a biological parent does not consent to the adoption of a child, the child cannot be
adopted by another person unless a court first finds that the biological parent is unfit.

 

Q. What is the definition of an unfit parent?

A. Parental unfitness is determined by state law. Normally, an unfit parent is one who has failed
to have regular contact with a child or to contribute to his or her support. A parent is also unfit if
he or she has been abusive or has otherwise failed to provide adequate care for the child.

 

 


Q. What happens if a stepparent adopts his spouse’s child and the parents later
divorce?

 

A. A divorce does not affect the legality of the adoption. The stepparent continues to have all
the rights and responsibilities of a biological parent, including a right to seek custody or visitation
and a duty to support the child.

 

Q. Can a single person adopt a child?

A. Yes, although some agencies strongly prefer to place a child with a married couple. Other
agencies–particularly those dealing with children who might be hard to place–are willing to
place a child with a single person. Single-parent adoptions usually are possible in private
adoptions.

 

Q. Can lesbian or gay couples adopt a child?

A. Yes, in some states, such as New York and California, gay and lesbian couples are able to
adopt a child.

 

Q. What is an “open adoption”?

A. An “open adoption” is one in which the adoptive parents agree to let the biological mother
(or biological father) have some continued contact with the child after the adoption. This contact
might be periodic visits or an exchange of pictures and other information between the adoptive
family and the biological parent or parents. The nature of the contact often is specified in the
adoption agreement. Open adoptions have become more common as more birth mothers have
become involved with choosing which adoptive family will receive their child. But open
adoptions are a relatively new phenomenon, and in many states it is not certain whether an open
adoption agreement is enforceable by the birth mother.

 

Q. Who has access to adoption records?

A. In most states, court adoption records are sealed and can only be opened by court order
(although Oregon allows all adopted children access to their adoption records). Procedures and
standards for opening records vary by state. Increasingly, states require that certain nonidentifying
information, such as the medical history of the biological family, be made available to
the adoptive parents at the time of adoption. Some states also have registries where parties to
the adoption can agree to a later exchange of information, including names and addresses.

 

Q. What is the legal status of an adopted child?

A. An adopted child has exactly the same rights as one born to his or her parents. Similarly,
adoptive parents have the same obligations to the child as they would to one born to them.

 

Q. What about medically assisted pregnancies?

A. As medical science advances, there are a variety of ways in which individuals who wish to
become parents can be helped to do so by medically assisted means, including artificial
insemination and in vitro fertilization. These medical procedures have legal implications that vary
by state. Generally, however, if both husband and wife consent to artificial insemination or in
vitro fertilization, the rights and duties of the husband, wife, and child will be the same as if the
child had been naturally conceived.

 

 


Q. What is surrogate parenthood?

 

A. In this arrangement, a woman agrees, with or without payment, to bear a child for another
couple. This usually occurs when the wife cannot conceive or carry a child to term. In nearly all
cases, through artificial insemination, the husband’s sperm fertilizes an egg belonging to either the
wife or the surrogate mother. This makes the husband the biological father of the child. The
surrogate mother agrees to give up all parental rights at birth. Then the wife of the biological
father legally adopts the child. A few states outlaw this arrangement when the surrogate mother
receives payment. Other states are considering laws that would restrict it. Persons
contemplating such an arrangement should seek legal advice before entering into such an
arrangement.

Paternity

 

PATERNITY AND MODERN SCIENCE

Paternity cases increasingly use scientific evidence. The blood tests used during much of the last
century were useful only up to a certain point. They might prove that a man was not the father of
a certain child, but could not prove that he was the father. New tests that sample the DNA
(genetic material) of the child and the supposed father are nearly 100 percent accurate in
proving or disproving paternity.

 

Q. May an unmarried mother legally force the father of her baby to support the child?

A. Yes. Both parents, married or not, have a duty to support the child. If the father admits
paternity, the mother should have him sign a statement to that effect. Then, if necessary, it will be
easier to force the father to help support the child. If he does not admit to being the father, the
mother may file a paternity suit against him. If this civil action succeeds, the court will require the
father to provide support. Sometimes the court also will require the father to pay for the
mother’s pregnancy and childbirth expenses.

 

Q. If a court decides that a man is a child’s father, how much will he have to pay in
support?

A. The law requires unwed parents to support their children the same as married parents. Child
support guidelines, which have been enacted in all states, will determine the amount of support.
As with children born to married parents, the obligation of support usually lasts until the child is
an adult. If a father refuses to support his child, a court may garnish his wages, seize his
property or bank accounts, revoke his driver=s license or professional license, and perhaps even
send him to jail.

 

Q. What may a husband legally do if his wife bears a child that is not his?

A. The law presumes that a married woman’s child is her husband’s. He must support the child
unless he can prove in court that he is not the father. Some states assume the husband is the
father no matter what proof he presents. These states do not allow a husband to disprove
paternity of a child born during the marriage.

 

 


Q. What is child neglect?

A. State laws make it a criminal offense for parents and legal guardians to fail to meet children’s
basic needs, including food, shelter, clothes, medical treatment, and supervision. Such failure
constitutes child neglect.

 

 

Q. What persons and what types of actions are covered by child abuse laws?

A. It is a crime for adults to abuse children in their care. Such adults include parents, foster
parents, legal guardians, other adults in the home, family members, and baby-sitters. Supervising
adults may not go beyond reasonable physical punishment. For example, adults who beat
children so severely that they require medical treatment have violated these laws. Child abuse
laws involve not only physical abuse (such as beatings or starvation), but other types of cruelty,
such as sexual molestation and subjecting a child to extreme public humiliation.
A person may be guilty of child abuse that he or she did not personally commit if that
person had legal responsibility for the child and failed to protect the child from the abuser.

TAKING CHILDREN AWAY FROM THEIR PARENTS
Whether or not a criminal case is brought, the state may remove children from the custody of
their parents if there is reason to believe the parents are physically, sexually, or emotionally
abusing one or more of the children. The state also may remove the children if the parents are
unable or unwilling to provide adequate care, supervision, and support.

 

Q. Who has a duty to report suspected child neglect and abuse?

A. The law compels a wide range of people who have contact with children to report suspected
child abuse or neglect. Such people include doctors, nurses, teachers, social workers, and
childcare providers . A person who is required to report suspected neglect or abuse may face
civil or criminal penalties for failure to do so. In addition, states often encourage the reporting of
suspected abuse by others such as neighbors and family members through special hot lines. The
laws of most states encourage persons to make reports of abuse by granting them immunity
from defamation suits by the accused parents if they make the report in good faith. Some states
keep central lists of suspected child abuse cases. This helps identify parents, for example, who
take their children to different hospitals in order to conceal the evidence that they have
repeatedly abused their children.

 

Q. If the law takes children away from their parents, is the removal temporary or
permanent?

A. The goal usually is to reunite the family after correcting the problems that led to the removal.
This, however, is not always possible. For example, if the parents make little or no effort to
improve the children’s care, then the state may ask a court to end all parental rights. If this
happens, the legal bonds between parents and children are completely and permanently cut, and
another family may adopt the children.

 

 

 

MONEY MATTERS DURING MARRIAGE

Ownership of Property

 

Q. Which spouse owns what property in a marriage?

A. Most property that is acquired during the marriage is considered marital or community
property. For example, the wages earned by both husband and wife during the marriage are
considered marital property. If one or both spouses buy a house or establish a business during
the marriage, that usually will be marital property, particularly if the house or business is
purchased with the husband’s and wife’s earnings.
Separate property is property that each spouse owned before the marriage. It also
includes inheritances and gifts (except perhaps gifts between spouses) acquired during marriage.
During the marriage (and afterwards), each spouse usually keeps control of his or her separate
property. Each spouse may buy, sell, and borrow money on his or her separate property.
Income earned from separate property, such as interest, dividends, or rent are generally
separate property. However, in some states that recognize community property, these profits
may become marital property.
Separate property can become marital property if it is mixed with marital property. If, for
example, a wife owned an apartment building before the marriage and she deposited rent
checks into a joint checking account, the rent money probably would become marital property,
although the building is likely to remain the wife’s separate property as long as she kept it in her
name. If the wife changed the title on the building from her name alone to the names of both
herself and her husband, that probably would convert the building into marital property. In
addition, if one spouse put a great deal of work into the other spouse’s separate property, that
could convert the separate property into marital property, or it could give the spouse who
contributed the work a right to some form of payback. A later section in this chapter will discuss
how courts divide marital property in a divorce.

 

Q. May a couple own property together?

A. Yes. In community property states, this occurs automatically. Ten states—Alaska, Arizona,
California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, as
well as Puerto Rico—use the community property system. These jurisdictions hold that each
spouse shares equally the income earned and property acquired during a marriage. This is true
even if one spouse supplied all the income. In the other states, spouses probably share property
under one of the following three forms of co-ownership:
· Joint Tenancy. A form of ownership that exists when two or more people own property that
includes a right of survivorship. Each person has the right to possess the property. If one
partner dies, the survivor becomes the sole owner. Any two people–not just spouses–may
own property as joint tenants. A creditor may claim the debtor’s interest in joint tenancy
property.
· Tenancy by the Entirety. Allowed only in some states, this is a type of co-ownership of
property by a husband and wife. Like joint tenancy, it includes a right of survivorship. But a
creditor of one spouse may not “attach” (seize) the property. Each party usually must
consent to the sale of the property. Divorce may result in a division of the property.
· Tenancy in Common. This form of co-ownership gives each person control over his or her
share of the property, and the shares need not be equal. The law does not limit tenancy in
common to spouses. A tenancy in common has no right of survivorship; when one spouse
dies, his or her share passes to the heirs, either by will or state laws.
Tenancy rules vary from one state to another. Some tenancies are complex and must be
created in a precise manner, otherwise the courts may not enforce them.

 

 


Q. Is a husband or wife responsible for debts incurred by the other?

 

A. That depends on the nature of the debt as well as where the couple live. If both husband and
wife have co-signed for the debt, both will be responsible for paying it. For instance, assume the
husband and wife apply together for a charge card. If both sign the application form and
promise to pay the charge bills, both will be responsible for paying off the balance to the credit
card company or store, even if only one of them made the purchases and the other
disapproved. Similarly, if a husband and wife co-sign on a mortgage for a home, both of them
are potentially liable to the mortgage company, even if one of them no longer lives in the home.
In community property states, a husband and wife may likewise be responsible for debts
incurred by the other.

 

Q. Is a husband or wife liable for the debts of the other without co-signing for the debt?

A. That again depends on the nature of the debt and where the couple lives. Some states have
“family expense statutes” that make a husband or wife liable for expenses incurred for the benefit
of the family, even if the other spouse did not sign for or approve of the expense in advance.
Still other states impose this family expense obligation by common law without a statute. Thus, if
the wife charged groceries at a local store or took the couple’s child to a doctor for care, the
husband could be liable because these are expenses for the benefit of the family. On the other
hand, if the wife runs up bills for a personal holiday or the husband buys expensive coins for his
coin collection, the other spouse normally would not be liable unless he or she co-signed for the
debt. Again, in community property states, a husband or wife is generally obligated for the debts
of the other.

 

Q. Is one spouse responsible for debts the other spouse brought into the marriage?

A. Not in most states. In states that do not recognize community property, such debts belong to
the spouse who incurred them. But in community property states, a spouse may, under special
circumstances, become liable for the other spouse’s premarital debts. See the
chapter on consumer credit.

 

Q. Do a spouse’s credit rights depend on marital status or the other spouse’s financial
status?

A. The law forbids denying credit on the basis of marital status. See the chapter
on consumer credit.

 

Q. Which spouse is responsible for paying taxes?

A. If each spouse’s name appears on a state or federal personal income tax return, both parties
signing the return are liable for the taxes. If a couple files jointly, the Internal Revenue Service
generally holds each one responsible for the entire debt. A spouse who files as Amarried filing
separately@ is not responsible for the other=s debt.

 

Q. Do the tax laws penalize married couples?

A. That depends on the tax bracket of each person. If one has a high taxable income and the
other a relatively low taxable income, they will generally pay less income tax if they are married
and filing a joint return than they would pay if single and filing as single persons. They also will
pay less by filing a joint return than by filing separate returns (as married persons). For couples
in which both wife and husband have a high income, the total tax will be higher for those who file
jointly.
Years ago, there were stories about financially well-off married couples who would go to
the Caribbean each December, obtain a divorce, file tax returns as single persons for that year
to save money, and then remarry in the new year. Such a practice could be regarded as tax
fraud. In any case, the savings are not as great as they were in years past.

Q. May one spouse make a tax-free gift to the other spouse?

A. A person may give his or her spouse any amount of money without paying federal gift taxes if
the spouse is a U.S. resident. However, it must be an outright gift or set up as a proper trust.
Most, but not all, state laws have done away with taxes on gifts between spouses. But the same
is not true with respect to gifts to other family members. Gifts to children or other relatives may
be taxable if they exceed a certain amount per year.

 

 


Q. May husbands and wives go into business together?

 

A. Certainly. Wives and husbands can be business partners, just as any other two people,
whether related or not. They could set up a corporation and both be owners and employees of
the corporation; they could form a partnership; or one could own the business and employ the
other. Wages and benefits can be paid, just as they would for any other employee. If wages and
benefits are being paid to a spouse or child, the amount usually should not be more than what is
reasonable or a fair market value. If artificially high payments are made, the business could get
into trouble with the Internal Revenue Service.

 

Q. Is a wife or husband liable for the other’s business debts?

A. Usually, no–unless the husband or wife had co-signed on the debt or they reside in a
community property state. It is common, however, for institutions that lend money to small
businesses to want personal guarantees of payment from the owner of the business, and not just
from the business itself. In the event the debt is not paid, lenders would like as many pockets to
reach into as a possible. If the owner of the business owns a home, the lender may want to use
the home as collateral for the business loan. That means that the spouse of the business owner
may be asked to sign a paper allowing use of the home as collateral. Thus, the home could be
lost if the business cannot pay off its debts. As long as a spouse does not co-sign for the
business debts, the spouse normally will not be liable for business debts incurred by his or her
mate. An exception may exist in community property states.

 

Q. May a couple file jointly for bankruptcy?

A. Yes. Bankruptcy provides relief for people who have more debts than they can pay.

 

Q. Must a working spouse provide a pension for a dependent spouse?

A. The law does not specifically require this, but most pension plans provide for it. Also,
depending upon the type of pension plan, a dependent spouse is given certain rights under
federal law regarding the working spouse’s pension benefits. See  “The Rights of
Older Americans.”

 


Q. What are legal remedies for domestic violence?

 

A. State legislatures and courts have been paying increasing attention to domestic violence.
Many states have elaborate laws designed to protect spouses from domestic violence by their
spouses or other family members. In many states, protection also is available for people in
dating relationships that have become abusive. A common remedy is for a court to issue a
“protective order” ordering the alleged abuser to stop abusing or harassing someone else. In
addition, the orders often will order the abuser to stay away from the spouse, the spouse’s
home, or place of work. If the person continues to abuse his or her spouse (or another person
protected by the order), the abuser can be charged with a criminal violation of the order in
addition to being charged with other offenses, such as battery.

 

Q. What kind of actions are considered domestic violence.

A. Domestic violence statutes in most states apply not only to physical attacks, but also to other
types of conduct. Some examples of conduct that could be considered domestic violence:
creating disturbance at a spouse’s place or work, harassing telephone calls, surveillance and
threats against a spouse or family member (even though the threat may not have been carried
out).

 

Q. Do protective orders actually protect the victim of domestic violence?

A. In many cases, yes. Studies have shown that issuing a protective order or arresting a person
who commits an act of domestic violence does reduce future incidents of domestic violence.
When perpetrators of domestic violence see that the police and court system will treat domestic
violence seriously, many persons who commit domestic violence may be deterred from future
violence. But orders of protection are not guarantees of protection or safety. For some
individuals with intense anger or rage, no court order will stop their violence, and a court order
might even add to the rage. Newspapers periodically carry stories of women murdered by their
husband or boyfriend despite numerous arrests and orders of protection. The legal system
cannot offer perfect protection, although it can reduce violence.

 

Q. Where does one turn for help in cases of domestic violence?

A. In a crisis situation, a call to the police is a good place to start. Many people complain that
police do not take accusations of domestic violence seriously. That can be true in some
circumstances, but on the whole, police are treating domestic violence situations more seriously,
and police officers are receiving increased training on the subject. The local state’s attorney or
district attorney also may be able to offer some help. An increasing number of hospitals, crisis
intervention programs, and social service agencies have programs to help victims of domestic
violence. Agencies offering help in cases of domestic violence might be found in the Yellow
Pages under “Domestic Violence Help,” “Human Services Organizations,” or “Crisis
Intervention.”

 

 

 

Where to Get More Information

Where to Get More Information

 

 

General Resources

For most older people, their main resource is their area agency on aging (AAA). It
can supply details and referrals on many topics. To find your local area agency on aging or
the one serving someone you are trying to help, call the toll-free Eldercare Locator 1-800-
677-1116 or visit the web page of the Federal Administration on Aging at www.aoa.gov.
Many associations promote the interests of older adults. The best known–and the
largest–is the American Association of Retired Persons (AARP). You can join if you are
over age 50. AARP has regional and local groups nationwide, and it provides booklets and
other resources on virtually any topic of interest to older persons. Look in the telephone
directory for the nearest group. Or contact: American Association of Retired Persons, 601
E Street, NW Washington, DC 20049 (202) 434-2277 or 1-800-424-3410 web: www.aarp.org
Other associations also promote the interests of older persons. They also provide
information and education to senior citizens. These include:
· National Council on the Aging 409 Third Street, SW, Washington, DC 20024
(202) 479-1200 web: www.ncoa.org
· Older Women’s League 666 11th Street, NW, Suite 700, Washington, DC
20001 1-800-825-3695 web: www.owl-national.org
· National Council of Senior Citizens 83301 Colesville Rd., Suite 1200, Silver
Spring MD 20910, 1-888-SENIOR. web: www.ncscinc.org

 

Your Area Agency on Aging (AAA)

Your Area Agency on Aging (AAA)

 

One important product of the Older Americans Act is the nationwide network of
area agencies on aging (AAA). Today, every area of the country is served by either an
AAA or a state unit on aging. These agencies help local communities develop services
specifically for older residents. The AAAs channel funds from the Older Americans Act to
local communities.
Each AAA operates autonomously. All of them offer information and
referral services to older adults. A few provide services directly, but most only coordinate
services and provide assistance to designated service agencies in the local communities.
AAAs provide funding and programming for local senior citizen centers,
too. Programs include recreation, socialization, meals, and educational programs. Many
service organizations offer programs at the senior centers as well as at other sites in the
community. Additional funds are generally provided by local and state governments, as
well as by such organizations as the United Way, private foundations, corporations, and
individual donors.
You can feel confident in calling your AAA with almost any question about
services in your neighborhood for older people. You can also go directly to a senior
citizen center near you and ask for help. If staff there cannot provide it, ask them to put
you in touch with someone in the AAA who can help.

 

Q. My Aunt Minnie is in a nursing home. I fear they do not treat her well.
They may even tie her in a chair part of the day. Her husband is in a board care
home, and they won’t let him visit Aunt Minnie. Her younger sister lives in her own
home. She had an aide and nurse to help her when she left the hospital, but they just
stopped visiting her. How can I be certain that all three receive quality care?

A. You should call the local long-term care ombudsman, an advocate who works
to ensure that older Americans receive appropriate quality care.

 

Q. A. I have an elderly neighbor who is finding it hard to manage on her own,
especially with shopping and preparing meals. Are there services that could help
her?

A. Yes. Under the Older Americans Act, several types of nutrition programs and
chore services are available to aid older adults. These include home-delivered hot meals,
as well as meals served at a “congregate” dining site. There may be limitations placed on
home-delivered services because of the great need and the limited amount of funding. The
AAA or someone designated will do an assessment of need. The result of such an
assessment may lead to the identification of more services that may be arranged for your
neighbor.


 

Q. I would like to use some of the services described here, but I really can’t
afford to pay for helpers or home-delivered meals. How can I use these programs?

A. The Older Americans Act targets services to low-income and minority elderly,
as well as to those who are frail or disabled. Many of the programs funded by the Act are
provided without charge, although donations may be requested. Other programs offered
by, arranged for, or provided through area agencies on aging may have a small fee or use a
“sliding scale,” where the fee is assessed on the basis of your ability to pay. Some
programs are reimbursed by other governmental programs such as Medicaid. Do not let
financial concerns keep you from benefiting from the variety of programs available.

 

 

Q. My elderly mother has been diagnosed as having Alzheimer’s disease. I
would like to have her live with me. Are there services available to help me provide
for her needs in my own home?

A. Maybe. Although the Older Americans Act authorizes grants to be made to
provide such services, they may or may not be available in your community. These may
include in-home supportive services for victims of Alzheimer’s disease or related
condition, and for the families of these victims.
The services and the extent of services vary from place to place. They might
include counseling and training for family care-givers, a needs assessment and assistance
in locating and securing services, and case management. A case manager acts as an
advisor, broker, and services might also include homemaker and home health aides, inhome
respite service so family care-givers can get away for short periods, assistance in
adapting a home to meet the needs of an impaired older person, and chore maintenance.
A second very important resource is the state or local Alzheimer’s Association.
Local chapters can be found through the Alzheimer’s Disease Education and Referral
Center, P.O. Box 8250, Silver Spring , MD 20907, telephone: 1-800-438-4380, website
www.alzheimers.org. The Alzheimer’s Association’s local chapters provide extensive
knowledge of resources for families of Alzheimer’s victims in your specific community.
Chapters also offer support from others whose loved ones are victims.

 

Q.I would like help in getting a job, since I feel able to continue working even
though I have retired. Can I get help under the Older Americans Act?

A. Yes. Through the Community Service Employment for Older Americans
program you may be able to get help in finding a job or training opportunity. These may
be part-time positions, at minimum wage. In general, this program is designed for lowerincome
seniors, so income and resource eligibility requirements may apply.

 

Q. I’m retired and I’m looking for new experiences, but I don’t really want to
enroll in a school. Is there anything for me?

A. Many universities, local junior colleges, and museum education programs
provide special programs, reduced fees, and auditing of classes. A call to the one closest to
you can provide information about such programs. The Elderhostel program meets the
needs of people like you. Elderhostel is a not-for-profit agency offering educational
programs for adults aged sixty years and older. Through an international network of
colleges and universities, Elderhostel is able to offer low-cost residential academic
programs both in America and abroad. Courses offered have included “The Literary
Heritage of Oxford,” offered in Oxford, England; “Political Controversies, Judicial
Politics and You”; and lectures on Greek Island society, in conjunction with a cruise of the
Greek Isles. The courses are usually taught by university faculty, and run from one to
three weeks. Most of the time, participants are housed in dormitories. On special trips,
other arrangements may be made. Students may expect to spend approximately three
hours a day in class, with many field trips and opportunities for sightseeing.
For more information, contact your local agency on aging or write to Elderhostel at
75 Federal St., Boston, MA 02110-1941, or call 617-426-8056. web: www.elderhostel.org

Right to Control Your Own Affairs

 

As we grow older, all of us face the possibility that one day we may become
incapacitated mentally. The time may come when we are no longer able to make our own
health care decisions, manage our own financial affairs, or act on our own behalf.
When that happens, you and your property must be protected, and people should
honor your wishes wherever possible. How and where do you want to live? What
decisions can you make? What decisions should you leave to someone else? Whom do
you want to make decisions for you? Several alternatives will ensure that people respect
your wishes whenever possible. Through planning, the decisions made on your behalf can
be those you would have made yourself.

A Legal Test of Capacity

There is no universal legal test of mental capacity or incapacity. Laws vary from
state to state, but some general principles apply everywhere.
Incapacity is always evaluated in connection with specific tasks. The question is
always, “Incapacity to do what?” Different legal standards of capacity may apply to
different tasks, such as capacity to do a will, to drive, to enter contracts, to manage money,
or to make medical decisions. In a typical guardianship proceeding, most but not all states
use a two-part test to determine incapacity (sometimes called incompetency). First, some
type of disability must be verified, for example, mental illness, mental retardation, and/or
Alzheimer’s disease. Second, there must be a finding that the disability prevents the person
from performing activities essential to take care of his or her personal needs or property.
Most courts will also insist that all feasible alternatives to guardianship have been
explored before appointing a guardian.

 

 

Financial Management Issues

 

Q. What may I do to make sure that people consider my wishes if I become
incapacitated?

A. You should make plans now, while you have capacity, to be sure your wishes
are met. Several planning tools guarantee you a voice in your future. If incapacity strikes,
these tools will name the person you want to act on your behalf and/or tell other people
how to care for you and your property.
There are different types of planning tools. Some–such as the durable power of
attorney, joint property arrangements, and living trusts–cover your property and financial
affairs. Others, known as the advance directives for health care, address your health care
concerns, including decisions near the end of life.
The details of creating these documents vary from one state to another. However,
some general principles apply.

 


 Durable Power of Attorney

Q. What is a power of attorney?

A. It is a written document in which you (the “principal”) grant certain authority to
another person (the agent or “attorney in fact”) to act on your behalf. A power of attorney
may be very specific, authorizing a person only to sell a car for you, for example. Or it can
be very broad, allowing the agent to do almost anything on your behalf. Traditionally,
powers of attorney were used to authorize a trusted family member, friend, or attorney-atlaw
to act in your behalf in financial matters–the sale of real estate, the making of
investments, and so on. When drafted to cover all financial matters, this authorization is
called a “general power of attorney.”

 

Q. Will a power of attorney be valid when I become mentally incapacitated or
incompetent?

A. A power of attorney normally is not valid if you become incapacitated, unless
you use a “durable” power of attorney. A durable power of attorney clearly states that you
intend the power to continue if you become disabled or incapacitated. It generally remains
in effect until you deliberately revoke it or until you die. However, in some states, your
durable power of attorney is terminated if a guardian is appointed for you (although
appointment of a guardian is usually unnecessary because the durable power of attorney
takes care of the management of your affairs).

 

Q. Whom should I name as my agent under a durable power of attorney?
Does the person have to be an attorney-at-law?

A. Your agent does not have to be a lawyer. In most states, it can be any adult or
an institution. However, it should be someone who knows you well and whom you trust
completely to manage your affairs. After all, decisions made by your agent can have
tremendous consequences for you. Your agent has to carry out your wishes and always act
as you would choose or with your best interests in mind. If there is no one whom you trust
with this power, it may be best not to draw up a power of attorney. Other planning tools
may suit you better.
You may name multiple agents who exercise all or some of the powers jointly (that
is, all must agree) or separately (that is, any one may act). With multiple agents, some
process for handling disagreements among agents should be considered, so that
disagreements do not undermine the usefulness of the power. In all cases, it is a good idea
to name an alternate to serve as your agent in case your first choice becomes unavailable.

 

 


Q. What if I do not want a power of attorney to take effect now, but only if I
become disabled or incapacitated?

 

A. In general, a durable power of attorney becomes effective when you sign it.
However, you may tell your agent not to act until you become incapacitated or disabled. If
your agent acts prematurely, you still have the right to act on your own behalf and you
may revoke the durable power of attorney at any time if you still have capacity. It may be
possible to write your durable power of attorney so that it becomes effective only if you
become incapacitated. This is called a “springing power of attorney.” Many states allow
you to write this type of durable power of attorney. Consult a knowledgeable lawyer to
find out what is possible in your state.

 

Q. Do I need a lawyer to write a durable power of attorney?

A. While not required, a lawyer is advisable for drafting your durable power of
attorney for property. A lawyer should make sure that your document meets your state’s
requirements and that the powers you wish to give your agent are actually spelled out in
language that will be legally effective.
Some powers may not be presumed to be within the scope of the power of attorney
unless they are specifically spelled out–for example, the power to make gifts or loans or
file tax returns. Some states require a specific format or specific wording in the document.
Certain states provide a “short form durable power of attorney” that allows you to check
off the powers to be granted to the agent, with state law providing an interpretation of
what each power means. Even with these simplified forms, legal consultation is advisable.
Revoking a Power of Attorney
If you change your mind about whom you want as your agent under a power of
attorney (durable or not), you may revoke the document. In fact, while you are capable,
you may revoke a power of attorney at any time for any reason. Simply notify the person
you have named to act as your agent. For your protection, it is best to do this in writing.
You also should destroy all copies of the power of attorney and notify in writing any third
parties with whom this person might have done business. Where substantial assets are at
stake, you may also want to file a document called a “Revocation of Power of Attorney” in
the public records where you live or own real state, and maybe even in the local
newspaper(s) if business interests are at stake.

 

Q My father has Alzheimer’s disease. I would like him to appoint me to act
for him under a durable power of attorney, since he can no longer manage on his
own. May he do this now or is it too late?

A. It is up to your father to decide if he wants to give you his power of attorney.
And it may be too late. Durable powers of attorney and other planning tools must be made
while a person is still capable. This is why advance planning is so important.
However, just because doctors diagnose someone as having a specific disease does
not mean that the patient is necessarily incapacitated. Also, incapacity does not affect all
functions in the same way. Thus, even people in the early stages of a disease such as
Alzheimer’s have the capacity to make some decisions. They also may have more capacity
at certain times of the day than at others, or their capacity may be affected by medications.
Capacity must be assessed on a case by case basis. If your father is willing to see a
lawyer about writing a durable power of attorney, the lawyer can help assess whether your
father understands the purpose and consequences of the durable power.

 


 

 

Q. Who decides whether I’m incapacitated?

A. You can specify how you wish to have your incapacity and mental status
determined if the need should arise. For example, in your durable power of attorney you
can name a doctor to make this determination, or you can say that two doctors must decide
whether you have capacity. Any doctor or clinical psychologist who makes evaluations of
capacity should have experience in this area. If you provide no instructions, then a court
might ultimately decide the issue, guided by generally accepted standards used by other
courts in making these determinations.
Living Trusts

 

Q. What is a “living trust”?

A. A living trust (also called “inter-vivos” trust) is an arrangement under which
you transfer ownership of all or part of your property to the trust during your lifetime. As
the person establishing the trust, you are called the “grantor” or “settlor.” You name a
“trustee,” who manages the property according to the terms of your written trust
document. The trustee may be an individual or an institution or yourself. The trust is for
the benefit of one or more persons, including yourself, called the “beneficiaries.”
Frequently, a will is used to set up a trust (called a testamentary trust) that becomes
effective after the death of the person establishing the trust. A living trust, however, is
effective during the lifetime of the settlor, although it may be written to continue beyond
the lifetime of the settlor. In a living trust, the settlor and/or members of his or her family
usually are the beneficiaries of the trust. A living trust may be revocable or irrevocable.

 

Q. What is a living trust useful for?

A. Living trusts are one way of ensuring that someone (a trustee) has the legal
authority to manage your estate properly if you become incapacitated or simply do not
wish to manage your own estate anymore. They may also be used to avoid probate
proceedings after the death of the person establishing the trust. They are especially useful
where there is a substantial amount of property and professional management is desired.
Like the durable power of attorney, a living trust may make it unnecessary to have a
guardian or conservator appointed to manage your financial affairs. However, a trust is
generally more expensive to create and to manage than a durable power of attorney.

 

Q. How may I use a living trust to plan for possible incapacity?

A. You may design a living trust so it takes effect only if you become
incapacitated. In this way, you keep control over your affairs until the proper person
determines that you are incapacitated. As with a durable power of attorney, the process for
such a determination should be spelled out in the document.
You may also write your living trust so that it is effective before you become
incapacitated and continues even after you lose capacity. For example, you might name
yourself as trustee and manage the trust’s assets while you have capacity, but name a
successor trustee who will take over for you if you become incapacitated. Again, you
should designate in the trust document how that determination of incapacity should be
made.

 

 


 

Q. I thought a trust simply paid an allowance to someone. If I need a trust
because I cannot manage my own finances, how would this help me?

A. Some trust arrangements do just pay a sum to the beneficiary periodically.
However, you may design a living trust in which the trustee handles many of the daily
tasks of managing the estate, including paying bills and taxes. You may state in the trust
agreement exactly what you want the trustee to do, how you want your assets managed
and how much discretion you want to give your trustee.

 

Q. Is a living trust just for someone who is incapacitated?

A. No. While it’s an excellent way for someone to plan and avoid the need for a
guardian or conservator of the estate, a living trust also is useful for someone who wishes
to turn over financial management of his or her affairs to another person.
Living trusts may have significant tax consequences, and may or may not reduce
the amount of your estate that is subject to the probate process after your death. In
addition, trusts may have an affect on your eligibility for Medicaid payment of your
nursing home care. Trusts are very complicated; considerable caution is required in
making them and the assistance of a lawyer is highly recommended.
To find out more about living trusts, contact an estate planning lawyer in your
state. He or she will be able to give you particulars about how your state’s laws affect such
trusts and about the consequences of making a trust.

 

Q. My father has a lot of money in his estate, but he is becoming increasingly
forgetful every week. May he still write a living trust?

A. Like the durable power of attorney, people must prepare living trusts while they
still have the capacity to do so. First of all, your father must want to make a trust. If he
does, his lawyer may determine his ability to make a trust agreement. Sometimes, this is
done by having him examined by a family physician or perhaps a gerontologist. His
lawyer will know what standard of capacity must be proven. If your father does not have
that capacity, he cannot make and sign a living trust.

 

Q. May I decide that I want to change, or revoke, a living trust arrangement?

A. It depends on whether the trust is revocable or irrevocable. If your trust is
revocable and you still have capacity, then you always may change or even revoke it
completely. An irrevocable trust cannot be changed or revoked.

 

Q. How may I ensure that my trustee will manage my affairs properly after I
become incapacitated?

A. Your trust instrument should contain specific instructions. You should include a
precise statement of what the trustee should do on your behalf, and specify the trustee’s
particular duties, responsibilities, and limitations.

 


 

Q. My wife and I hold most of our assets in common. May I still draft a living
trust to protect my share of the estate?

A. Yes, but take care to ensure that the trust does not violate the rights or interests
of your wife in her portion of the estate. You may do this through careful drafting of the
document and sound financial planning before incapacity. You and your wife may need
separate counseling and planning advice, as your interests may conflict with each other.

 

Q. It sounds as though a living trust is a very complex type of financial
planning tool. Who can help me decide if one is right for me?

A It is best to consult with a lawyer or a trust officer familiar with living trusts to
determine if one is right for you. Do not rely solely on mail-order or do-it-yourself trust
kits, as they may contain information that is misleading or inappropriate for your
circumstances or your state’s law. There is more information in the chapter, “Estate
Planning.”
Joint Ownership

 

Q. I have most of my property and bank accounts held jointly with my spouse
and an adult child. Isn’t this good enough to ensure management of my property if I
become incapacitated?

A. No. Joint ownership, or joint tenancy with right of survivorship, is a common
and simple form of ownership for property such as one’s home, cars, securities, and bank
accounts. It is a convenient way to allow another person access to property or money you
have in a bank account or to deposit or write checks on your behalf. However, joint
ownership is not a substitute for other planning tools because it has serious disadvantages.
For example, an untrustworthy joint owner may withdraw all the money in a bank account
and leave you with nothing. It is possible to challenge a co-owner’s improper use of your
money, but it may be difficult. In some states, creditors of a co-owner may be able to
reach your account, even though that person is only listed on your account to help you
manage your money. In addition, being listed as a co-owner of a bank account could affect
the co-owner’s eligibility for public benefit programs such as Medicaid. Finally, transfers
of a home, a car, or securities, normally requires the signature of all owners. The loss of
capacity of one owner may prevent a needed sale or transfer of the property. See
the chapter on estate planning for more information on joint ownership.

 

Q. I’m concerned about the disadvantages of joint bank accounts. Is there
another way that I can give someone access to my bank account without giving that
person ownership of my money?

A. Some states have laws allowing persons to create what is referred to as an
“agency bank account” or “convenience account.” This works very much like a durable
power of attorney. You name an agent on your bank account who then has the authority to
make deposits or withdrawals and manage your account. The authority remains effective if
you become incapacitated or disabled, unless you indicate otherwise. The agent has no
right of ownership in the money in the account before or after your death, unless you
indicate that the agent is to receive the money when you die. This may be a useful tool for
you if you do not want to give someone authority over other aspects of your financial
affairs through a durable power of attorney. It also may be useful as a supplement to your
durable power of attorney, because some banks are reluctant to accept a durable power of
attorney and prefer their own forms and procedures. Your banker or lawyer should be able
to tell you whether your state’s law allows agency bank accounts and how one might
benefit you.


 

Representative Payees

Q. I have no income other than my social security check. Would a living trust
or power of attorney help me manage my money?

A. A living trust is far too costly and complicated for this kind of situation. A
durable power of attorney definitely would be helpful. However, if the primary need is to
take care of the social security check, a “representative payee” may be the simplest way to
help you take care of your daily expenses and manage your small income.

 

Q. What is a representative payee?

A. A representative payee is a person or organization appointed by a government
agency, such as the Social Security Administration (SSA) or the Veterans Administration
(VA), to receive and manage public benefits on behalf of someone who is incapable of
doing so. The payee actually receives your government benefits on your behalf and is
responsible for managing those benefits and making sure that they are spent for your
welfare.

 

Q. What types of income may a representative payee manage?

A. He or she may only manage the income paid by government programs (usually
federal programs such as social security, veterans benefits, black-lung benefits, and
supplemental security income programs). The representative payee has no authority over
any other income or property that you might receive. If you have additional income from
other sources, you may need other assistance (such as help from an agent under your
durable power of attorney or from a money management program, discussed below) in
addition to the help of a representative payee.

 

Q. How is a representative payee set up?

A. You, or someone on your behalf, must ask the Social Security Administration
(or other program) to appoint a representative payee. Generally, you must have some sort
of disability that prevents you from managing your own financial affairs, and you
probably will need medical records of your disability. The government agency that
provides the benefits must decide that you need help managing them. Your disability may
be physical or mental. Although the decision is made by the agency and not by a court of
law, you have the right to contest the appointment of a representative payee if you
disagree, including the right to a hearing and all the appeals rights that apply to any claim
before the agency.

 


 

Q. How can I be sure a representative will manage my money properly?

A. Supervising representative payees can be a problem. In principle, the payee
must provide a detailed accounting to the agency paying the benefits. However, many
exceptions exist. For example, spouses and institutions (such as nursing homes) that are
acting as payees do not have to make such reports. Under some benefits programs, such as
the VA, reporting requirements vary with the size of the benefit. There is not much you
may do to protect yourself ahead of time in such circumstances, except to plan for
incapacity through other methods that allow someone else of your choice to manage your
income for you.

 

Q. If I regain my ability to control my own finances, may I dismiss a
representative payee?

A. Yes. First you need a doctor’s certification that you are now able to manage
your own financial affairs. You must then notify the government agency of your wish to
dismiss the representative payee, and the agency must determine that you have regained
the capacity to manage your own benefits.
Money Management Services

 

Q. I do not have a durable power of attorney or other legal tool for managing
my property, but I have heard of some organizations offering “money management”
services. What are these?

A. Money management programs, also known as “daily money management” or
“voluntary money management,” represent a broad group of services designed to help
older persons or persons with disabilities who need assistance managing their financial
affairs. These services might include check depositing, check writing, checkbook
balancing, bill paying, insurance claim preparation and filing, tax preparation and
counseling, investment counseling, and public benefit applications and counseling.

 

Q. Who provides money management services?

A. This assistance may be provided by an individual or an organization. An
organization may provide services on a for- profit or not-for-profit basis. Services may be
provided for free, on a sliding fee scale basis (where you pay according to our income), or
for a flat rate.
If you receive or are considering money management services, you should make
sure that your service provider has a system of cash controls to prevent or at least lessen
the risk of embezzlement of client funds. The service provider should also be bonded and
insured to protect clients from theft or loss of funds.

 

Q. How do money management programs help me keep control of my life?

A. A money management program may be able to help by providing the financial
management assistance you need in the way you want it. It may also help avoid the need
for a guardianship. Money management services work on a voluntary basis, so you must
be able to ask for help or accept an offer of help. Money management services may be
particularly useful if you have no family or friends who are able or whom you trust to act
as your agent or trustee.

 

 


 

Guardianship

 

Q. What exactly is a guardian?

A. A guardian is someone who is appointed by a court to make personal and/or
financial decisions on behalf of another person. “Guardian” is a general term for a courtappointed
surrogate (substitute) decision maker. Your state may use other terms, such as
“conservator,” “committee,” or “curator.” Some terms may only apply if the decision
maker has authority over financial and property matters; other terms may apply if the
decision maker has authority over personal decisions such as living arrangements and
health care. A person who has a guardian may be called a “ward,” an “incapacitated
person,” or some other term.

 

Q. When is the appointment of a guardian appropriate?

A. People need a guardian when:
(1) they can no longer manage their affairs because of serious incapacity:
(2) no other voluntary arrangements for decision making and management have
been set up ahead of time, (or if they have been set up, they are not working
well) and
(3) serious harm will come to the individual if no legally authorized decision
maker is appointed.
A guardianship is a serious step and should relate to a serious inability to make or
understand the consequences of decisions. It should not depend on stereotypical notions of
old age, mental illness, or handicaps. A person has a right to make foolish or risky
decisions. These decisions by themselves do not mean that the person has a decision
making incapacity.

 

Q. Are there any disadvantages to the appointment of a guardian?

A. Yes. Although a guardianship may be necessary to protect the welfare of an
incapacitated person, it also results in the loss of individual rights. The person under a
guardianship may lose several civil rights: the right to marry, the right to vote, the right to
hold a driver’s license, the right to make a will, the right to enter into a contract, and other
rights. Because of its serious consequences, guardianship should be considered the last
resort for helping someone who is experiencing incapacity.
In addition, the court proceedings themselves can be costly, time-consuming, and
emotionally trying for a family. Once in place, a guardian’s ability to manage the estate is
far less flexible than would be under advance planning legal tools such as durable powers
of attorney or living trusts. Guardians must operate within strict fiduciary limitations and
normally must file annual accountings with the court. On the positive side, the fiduciary
rules and court accountings ensure at least some oversight and accountability of the
guardian.

 

 


Q. Who appoints a guardian?

A. Procedures vary among the states, but generally a court of law appoints a
guardian after hearing evidence that a person is incapable of making decisions and
deciding that the person needs a surrogate decision maker.
In most states, the law requires some form of due-process rights. These rights are
intended to protect a person from being inappropriately declared incapacitated. The rights
include the right to be notified of the date and place of the hearing, the right to be present
at the hearing, and the right to be represented by a lawyer.

 

Q. My elderly mother is often confused. I think she ought to have a guardian
to look after her interests. What do I do?

A. First, you may want to contact your local area agency on aging to see if there
are any programs or services that might help your mother manage and make it
unnecessary to obtain a guardian for her. It will also help to have her examined by a
doctor or psychologist experienced in geriatric evaluation. A geriatric evaluation will
typically involve evaluation by more than one specialist from different disciplines, such as
medicine, nursing, and social work. Often, a person’s decision making may be impaired
because of physical or other causes that can be corrected.
If the evaluation supports the need for a guardianship, check with a lawyer to learn
the specifics of your state’s guardianship law and procedures, as they vary substantially
from state to state. The appointment of a guardian normally requires the filing of a petition
with the court, notice to your mother and other interested parties, and a court hearing. You
will probably need a lawyer to help you through it.
The court may also appoint an investigator or “visitor” to interview your mother
and make a report to the court or an attorney to represent your mother. At the hearing, a
judge will review the petition, the investigator’s or attorney’s report, and medical reports.
The judge may ask the person filing the petition why the other person needs a
guardian. The judge may also ask the allegedly incapacitated person some questions. The
hearings are usually fairly informal. If there is disagreement, the judge may set the case
for a formal hearing with witness testimony, cross examination, and argument by counsel.

 

Q. What if someone thinks I need a guardian, and I do not want one?

A. Every state gives the allegedly incapacitated person a chance to fight the
petition for guardianship. If you do not think you need a guardian, you must let the court
know that. Usually you do this by appearing in court on the day of the hearing or asking
someone to represent you at the hearing.
It is best to get your own lawyer to represent you at the hearing. If you cannot
afford one, many states require that the court appoint one at the state’s expense. Some free
legal services programs for older persons will help you fight a guardianship. If you cannot
get to court or hire a lawyer, you may write the court about your objection to the
guardianship.
Who May Be a Guardian?
Laws vary from one state to another. In most states, the courts may appoint almost
anyone as your guardian if the person meets legal requirements. Often the court appoints
the person filing the petition. Most courts like to appoint a relative who knows the person
and is most likely to act in his or her best interests. However, the courts may appoint a
friend or attorney, especially if no family members are available. The courts also may
appoint multiple guardians, either with shared responsibilities or with responsibilities split
between them. If there are no friends or family willing or able to serve as guardian, many
states permit public or private agencies to act as the guardian and to charge fees for that
service.

 


 

Q. This sounds very expensive. Who pays for a guardianship?

A. It can be expensive. There are court charges and attorney fees and fees for the
doctor or other persons who examine the alleged incapacitated person to assess his or her
capacity. If the court appoints a guardian, the estate usually pays the guardian’s fees. Older
persons who are either seeking guardianship over a family member or who are challenging
a guardianship may be able to get free legal help through legal services programs or
through lawyers who volunteer their services pro bono (free of charge). Contact your local
area agency on aging or local bar association to find these resources in your community.

 

Q. If I need a guardian, may I specify whom I want and do not want to play
this role?

A. Yes, the court will give due weight to your preference, and in some states must
follow your preference unless there is good cause no to do so. You should nominate a
guardian, this as part of your general planning for incapacity. Sometimes even the best
plans for incapacity fail (for example, if your agent under your durable power of attorney
passes away after you become incapacitated), so it is a good idea to name in your planning
documents one or two people whom you want as your guardian if that becomes necessary.

 

Q. May the court remove a guardian?

A. Yes, a guardian may be removed if the incapacitated person can prove that he or
she has regained the capacity to make decisions. It can be hard to have a guardian
removed. Therefore, if someone’s incapacity may be temporary, consider whether some
other legal tool (such as money management or a representative payee) will meet the
person’s need for help and make it unnecessary to get a guardianship.
A court also may remove a guardian who is not properly carrying out his or her
responsibilities. Usually a new guardian will replace the person who is removed.

 

Q. My elderly aunt needs some help with her affairs, but she is not totally
incapable. May a guardianship meet her needs?

A. In most states, if a person has partial capacity his or her guardian may be given
only partial power over his or her affairs. This is generally called a “limited guardianship.”
In your aunt’s case, the court’s guardianship order would identify the specific matters over
which the guardian has authority. Your aunt would retain legal authority over all other
areas of her life.
In all states, the courts try to ensure that a guardianship is the “least restrictive”
alternative. This means that a guardianship restricts the ward as little as possible, letting
the ward do whatever the disability allows.
Suppose your aunt can no longer manage her large estate, but she can handle her
daily finances. A guardianship should let her keep control over everyday expenses. Or, let
us say your aunt needs placement in a nursing home by the guardian. If she can say what
type of nursing home she wants to live in, the guardian should honor those wishes.
Even when a limited guardianship is not feasible, the guardian should try to
involve the ward in making decisions whenever possible.

 

 


 

Health Care Decision Making Issues

 

Q. What is my right to control decisions about my health care?

A. With few exceptions, our system of law recognizes the right of capable
individuals to control decisions about what happens to their bodies. This includes the right
to refuse any suggested medical treatment. We normally exercise this right by talking to
our doctor and other health care providers. You have a right to:
· know all the relevant facts about your medical condition;
· know the pros and cons of different treatment options;
· talk to other doctors and get their opinions, too;
· say “yes” to treatment or care that you want, and “no” to treatment or care that you do
not want.
Your doctor is the expert in medicine, but you are the expert in defining and applying
your personal values and preferences.

 

Q. What happens to my right to make medical decisions if I am too sick to
decide?

A. In an emergency, the law presumes consent. In all other instances, someone else
must make decisions for you. The best way to ensure that decisions are made the way you
would want and by the person you want, is to do an advance directive for health care
before you become incapacitated.

 

Q. What is an advance directive for health care?

A. An advance directive is generally a written statement, which you complete in
advance of serious illness, about how you want medical decisions made. The two most
common forms of advance directive are a “living will” and a “durable power of attorney
for health care,” although in many states you may combine these into a single advance
directive document.
An advance directive allows you to state your choices for health care or to name
someone to make those choices for you, if you become unable to make decisions about
your medical treatment. In short, an advance directive enables you to have some control
over your future medical care. You can say “yes” to treatment you want, or say “no” to
treatment you don’t want.

 

Q. What is a living will?

A. A living will is simply a written instruction spelling out any treatments you
want or don’t want in the event you are unable to speak for yourself and you are terminally
ill or permanently unconscious. A living will simply says, “Whoever is deciding, please
63
follow these instructions.” It is called a “living will” because it takes effect while you are
still alive. It is also called a “medical directive” or “declaration.”

 


 

Q. What is a durable power of attorney for health care?

A. A durable power of attorney for health care (sometimes called “health care
proxy”) is a document that appoints someone of your choice to be your authorized agent
(or “attorney-in-fact” or “proxy”) for purposes of health care decisions. You can give your
agent as much or as little authority as you wish to make some or all health care decisions
for you. And in most states, you can include the same kind of instructions that you would
put in a living will.

 

Q. Which is better: a living will or a durable power of attorney for health
care?

A. The most efficient approach is to combine the living will and durable power of
attorney for health care in one document. In most states you can do this. However, some
states have less flexible rules for these advance directives. In these states, having both may
be the preferred approach.
On its own, a living will is a very limited document because, under most state
statutes, living wills apply only to terminal illness or permanent unconsciousness. They
address only life-sustaining medical treatments and not other treatment decisions, and they
provide fairly general instructions that may be difficult to interpret in complicated medical
situations.
The durable power of attorney for health care is a more comprehensive and
flexible document. It may cover any health care decision and is not limited to terminal
illness or permanent coma. More importantly, it authorizes someone of your choice to
weigh all the facts at the time a decision needs to be made and to legally speak for you
according to any guidelines you provide.

 

Q. Why can’t I just tell my doctor what I want?

A. Telling your doctor and others what you want does provide important evidence
of your wishes if you later become incapacitated, especially if your doctor writes your
wishes down in your medical record. However, written advance directives are likely to
carry more weight and to be followed.

 

Q. What happens if I do not have an advance directive?

A. If you have not planned ahead by executing an advance directive, many states
have family consent (or health surrogate) statutes that authorize someone else, typically
family members in the order of kinship, to make some or all health care decisions. Even in
the absence of such statutes, most doctors and health facilities routinely rely on family
consent, as long as they are close family members and no controversial decisions need to
be made.
However, without an advance directive, decisions may not be made the way you
would want them, or by the person you would want to make them. Making an advance
directive also benefits your family members, because it spares them the agony of having to
guess what you would really want.
If no close family or other surrogate is available to make decisions for you, a
court-appointed guardian may be necessary. This is an option of last resort.

 

 


Q. How do I make an advance directive?

 

A. Requirements differ from state to state. Many states provide suggested forms,
and in some cases, required language for advance directives. Most states have specific
witnessing or notary requirements. Follow these requirements closely. Commonly, two
witnesses are required; and often, several categories of persons are disqualified from
serving as a witness, such as relatives, heirs, or health care providers.
In addition to the forms included in state law, a variety of other advance directive
forms are available–some prepared by state bars or medical associations, some published
by national organizations, others published in journals or local publications or do-ityourself
books.
The most important point to remember about forms is that they are supposed to
aid, and not take the place of discussion and dialog. Therefore, a form ought to be a
starting point, not an end point, for making your wishes known. There is no ideal form.
Any form you use should be personalized to reflect your values and preferences. Before
doing an advance directive, talk with your doctor, family members, and advisors. This will
help you to understand the medical possibilities you may face and clarify your values and
choices.

 

Q. What should my advance directive say?

A. No one can tell you exactly what to say in your advance directive. However, the
most important task to accomplish is to name someone you trust to act as your agent for
health care decisions. If there is no one whom you fully trust to act as your agent, then it is
best not to name an agent, and instead, only include instructions about the kinds of
treatment you would want or not want if you became seriously ill.
Also consider addressing:
(1) Alternate proxies. Whenever possible, name one or more alternate or successor
agents in case your primary agent is unavailable.
(2) Life-sustaining treatments. Are there any specific types of treatment you want
or don’t want in any circumstances? Your personal or family medical history
may make certain conditions or treatments more likely.
(3) Artificial Nutrition & Hydration. Some states will presume that you want
nutrition and hydration in all circumstances unless you instruct otherwise.
(4) Organ donation. In many states, you can include instructions about donating
organs in your advance directive.

 

Q. Can I change or terminate my advance directive?

A. Yes, you always have the right to change or revoke your advance directive
while you have the mental capacity to do so. Normally, you can revoke it orally or in
writing in any way that indicates your intent to revoke. Your intent should be
communicated to your agent, your family, and doctor.
If you want to change the document, it is best to execute a new document. The
same formalities of signing and witnessing are required for changes.

 

 


Q. Whom should I select as my agent or proxy for health decisions?

 

A. The choice of agent is the most important decision you may make in doing an
advance directive. Your agent will have great power over your health and personal care if
you become incapacitated. Name a person whom you trust fully. If no such person is
available, it may be best not to name a health care agent.
Find out who can and cannot be your agent under state law. Some states prohibit
health care providers or health care facility employees from acting as your agent. Speak to
the person you wish to appoint beforehand to explain your intentions and to obtain his or
her agreement. Preferably, do not name co-agents, because it opens up the possibility of
disagreement among agents. Instead, name alternate or successor agents, in case the
primary agent is unavailable. If there is anyone whom you absolutely want to keep out of
playing any role in your health care decisions, you may be able to expressly disqualify that
person in your advance directive.

 

Q. What do I do with my advance directive after completing one?

A. Make sure someone close to you knows where it is located. If you have named
an agent, give your agent a copy or the original. Also give your physician a copy and ask
that it be made part of your permanent medical record. You may also want to make a
small card for your purse or wallet that states that you have an advance directive and
provides the name, phone number, and address of your agent or person who can provide a
copy of it.

 

Q. What if my doctor or hospital refuses to follow my advance directive?

A. First, find out ahead of time your doctor’s views about advance directives and
your specific wishes. If you disagree, you may wish to find a new doctor ahead of time.
Under federal law, most hospitals, nursing homes, and home health agencies must
inform you of their policies about advance directives at the time of admission. Most will
respect advance directives, but some may have restrictive policies. However, no facility
can require you to have, or not have, an advance directive as a requirement of admission. I
If you are in a condition to which your advance directive applies and your
providers will not honor your directive, state law spells out their obligations. Usually, the
provider must make a reasonable effort to transfer the patient to another provider who will
respect the advance directive.

 

Q. If I make an advance directive in one state, will it be recognized in others?

A. In many states, the law expressly honors out-of-state directives. But, in some
states, the law is unclear. Realistically, providers will normally try to follow your stated
wishes, regardless of the form you use or where you executed it. However, if you spend a
great deal of time in more than one state (for example, summers in Wisconsin, winters in
Arizona), you may want to consider executing an advance directive for each state. Or, find
out whether one document meets the formal requirements of both states. As a practical
matter, you may want different health care agents if the same agent is not easily available
in both locations.

 

 

 


Most state or area agencies on aging have information on advance directives, as do
many state bar associations and medical societies. State-specific information and forms
are also available from:
Choice in Dying, 1-800-989-WILL (9455), website www.choices.org. (The
organization is evolving into a new organization concerned more broadly with excellent
end-of-life care. You can learn about Partnership for Caring by accessing
www.partnershipforcaring.org.) If your state doesn’t specify a particular form
for a living will, Choice in Dying can send you a living will declaration that will keep you
from being hooked up to resuscitation machine. It must be signed by two witnesses, who
cannot be your relatives, heirs, or doctor

 

 

Q. Is a lawyer needed to do an advance directive?

A. No, a lawyer is not necessary, but a lawyer experienced in doing advance
directives is very helpful. A lawyer can draft a personalized document that reflects your
particular wishes and ensure that all legal formalities are followed. A lawyer is especially
helpful if potential family conflicts or special legal or medical concerns are present.

 

Abuse and Exploitation

 Q. What is elder abuse?

A. Elder abuse occurs when anybody neglects or abuses an older person. The abuse can be physical or mental. Definitions of elder abuse vary from state to state, but
generally include:
· physical abuse, such as hitting or shoving; sexual abuse, including fondling, sexual
intercourse, and forced intimate contact of almost any sort;
· verbal and psychological abuse, such as screaming at the older person, name calling,
and threatening the person;
· neglect, such as withholding food, shelter, medical care, medication, and other
necessities from the older person; and
· restraint, such as keeping the person locked up.
Also included in most states is financial exploitation. This can range from outright
theft to misuse of the older person’s money. Cashing an older person’s social security
check and not using the money for the person’s care is one example. Many states also
would consider misusing credit cards or funds held in joint bank accounts as financial
exploitation.
Every state has specific elder abuse laws. You can get details on laws and
programs from your area or state agency on aging or contact the National Center on Elder
Abuse at 1225 I Street, N.W., Suite 725, Washington, DC 20005 or on their website at
www.gwjapan.com/ncea.

 

 


Q. Is elder abuse just a problem for very frail old people who live in nursing
homes?

A. Elder abuse is a real problem for many older people. Some victims are very frail
and are unable to seek help on their own. However, many elder abuse victims are active
older adults who feel cornered in an emotionally difficult situation.
Elder abuse can be a problem for both the rich and the poor. It does not strike only
one race, social class, or economic level.

 

 

Q. My son shares my apartment with me. Sometimes, when I forget things or
get confused, he loses his temper, pushes me, and threatens to put me in a nursing
home. Is this abuse?

A. Yes. Many types of elder abuse occur within the home. Even if it only happens
from time to time, it is still abuse. Seek help from your local social service agency on
aging.

 

Q. My neighbor is very old and sick. She depends on her daughter for
shopping, cooking, and cleaning. However, her daughter often leaves the older
woman without food and clean clothes. Is there anything I can do to help?

A. Yes, you may report this neglect to your local elder abuse reporting agency.
This may be your state or local agency on aging or human services department. You may
even report abuse and neglect to the police.
You should not worry about being sued for making the report. Almost all states
protect people who make such reports acting in good faith. You may even make an
anonymous report.

 

Q. My son is using all my money to buy illegal drugs. He is also running up
large charges on my credit cards. (His name is on my credit-card accounts and my
bank accounts.) Since he is a co-owner of my home, I am afraid he will mortgage it or
possibly even sell it to get more money. What can I do?

A. Even if he has the legal right to reach your funds, you may protect yourself
from this type of financial exploitation. Ask your bank to help you transfer funds to new
accounts that your son may not access. Write all your credit card companies and ask them
to remove your son’s name from your accounts. Have them issue new credit cards to you.
Contact a lawyer to see what you must do to protect your home. A free legal
services program for older or poor persons may be able to help you. Your local area
agency on aging can help you find those resources.
Finally, seek help for yourself and for your son from a local social service agency.
Many of them have experience in dealing with family difficulties of this sort. You do not
have to allow your son’s problems to overtake your own well-being and financial security.

 

Q. My son and daughter-in-law live with me in my home. They are living
rent-free and give me no money for household bills or food. I feel like they are taking
advantage of me. Can someone help me?

A. Yes. The situation you describe is surprisingly common. If the help you provide them is not what you wish, you are being exploited. Over 75 percent of all abusers are
family members. You can seek help from an elder abuse program operating in your area. It
can provide counseling and other assistance.

 

 


 

Legal Services

 Most of the time people prefer to resolve disputes and manage affairs on their own.
Sometimes, however, they will need expert help to protect their interests. Many older
people already have lawyers who have helped them with legal issues in the past. Others
will need to work with a lawyer for the first time. Help from a lawyer who is an expert
about social security or estate planning may be necessary.

 

Q. My 45-year-old son and I are co-owners of a condominium. We have had a
falling-out over some lifestyle issues. Do I need a lawyer to get me out of the joint
ownership? How can my son and I resolve our differences?

A. You could hire a lawyer and go to court, but some other solutions may be faster,
less expensive, and produce better and more lasting solutions.
Sometimes, problems that seem to be “legal” may be solved through other means.
A social worker or psychotherapist can help with family problems. Some specialize in
counseling for the elderly. You also can request help from a social service agency. Your
local agency on aging can provide information dispute. It may be available through your
local court or through a private mediator. Your local bar association also may be able to
make a referral. Another option is small claims court. Small claims court gives you the
opportunity to get a legal judgment without hiring a lawyer and putting up with delays, if
the dollar amount is under a certain amount, for example, $2,000. There is more
information about small claims court in the chapter, “How the Legal System
Works.”

Spousal Abuse

Suppose your spouse sometimes hits you or pushes you around. You are both over
sixty-five, and it is harder for you to run away from him or her. Is there anything you can
do after all these years?
You do not have to live with abuse, no matter what your age. Physical abuse is
against the law. It is no more legal for your spouse to hit you than for a stranger to hit you.
Fortunately, more and more police departments and courts are sensitive to
domestic violence and are willing to help victims. If your spouse strikes you, call the
police and file a complaint. You also may ask the police to help you find a domestic
violence shelter. You may stay there if you wish to leave your abusive home.
If you do not want to leave your home, you may seek an order of protection
through the courts. With such an order, you can have your spouse removed from the
home, even though he or she may be the owner. Call the National Domestic Violence
Hotline for assistance and information at 1-800-787-3224. See the chapter “Family Law”
for more helpful information.

 


 

 

 

Your Area Agency on Aging (AAA)

 

One important product of the Older Americans Act is the nationwide network of
area agencies on aging (AAA). Today, every area of the country is served by either an
AAA or a state unit on aging. These agencies help local communities develop services
specifically for older residents. The AAAs channel funds from the Older Americans Act to
local communities.
Each AAA operates autonomously. All of them offer information and
referral services to older adults. A few provide services directly, but most only coordinate
services and provide assistance to designated service agencies in the local communities.
AAAs provide funding and programming for local senior citizen centers,
too. Programs include recreation, socialization, meals, and educational programs. Many
service organizations offer programs at the senior centers as well as at other sites in the
community. Additional funds are generally provided by local and state governments, as
well as by such organizations as the United Way, private foundations, corporations, and
individual donors.
You can feel confident in calling your AAA with almost any question about
services in your neighborhood for older people. You can also go directly to a senior
citizen center near you and ask for help. If staff there cannot provide it, ask them to put
you in touch with someone in the AAA who can help.

 

Q. My Aunt Minnie is in a nursing home. I fear they do not treat her well.
They may even tie her in a chair part of the day. Her husband is in a board care
home, and they won’t let him visit Aunt Minnie. Her younger sister lives in her own
home. She had an aide and nurse to help her when she left the hospital, but they just
stopped visiting her. How can I be certain that all three receive quality care?

A. You should call the local long-term care ombudsman, an advocate who works
to ensure that older Americans receive appropriate quality care.

 

Q. A. I have an elderly neighbor who is finding it hard to manage on her own,
especially with shopping and preparing meals. Are there services that could help
her?

A. Yes. Under the Older Americans Act, several types of nutrition programs and
chore services are available to aid older adults. These include home-delivered hot meals,
as well as meals served at a “congregate” dining site. There may be limitations placed on
home-delivered services because of the great need and the limited amount of funding. The
AAA or someone designated will do an assessment of need. The result of such an
assessment may lead to the identification of more services that may be arranged for your
neighbor.

 

 


Q. I would like to use some of the services described here, but I really can’t
afford to pay for helpers or home-delivered meals. How can I use these programs?

A. The Older Americans Act targets services to low-income and minority elderly,
as well as to those who are frail or disabled. Many of the programs funded by the Act are
provided without charge, although donations may be requested. Other programs offered
by, arranged for, or provided through area agencies on aging may have a small fee or use a
“sliding scale,” where the fee is assessed on the basis of your ability to pay. Some
programs are reimbursed by other governmental programs such as Medicaid. Do not let
financial concerns keep you from benefiting from the variety of programs available.

 

 

Q. My elderly mother has been diagnosed as having Alzheimer’s disease. I
would like to have her live with me. Are there services available to help me provide
for her needs in my own home?

A. Maybe. Although the Older Americans Act authorizes grants to be made to
provide such services, they may or may not be available in your community. These may
include in-home supportive services for victims of Alzheimer’s disease or related
condition, and for the families of these victims.
The services and the extent of services vary from place to place. They might
include counseling and training for family care-givers, a needs assessment and assistance
in locating and securing services, and case management. A case manager acts as an
advisor, broker, and services might also include homemaker and home health aides, inhome
respite service so family care-givers can get away for short periods, assistance in
adapting a home to meet the needs of an impaired older person, and chore maintenance.
A second very important resource is the state or local Alzheimer’s Association.
Local chapters can be found through the Alzheimer’s Disease Education and Referral
Center, P.O. Box 8250, Silver Spring , MD 20907, telephone: 1-800-438-4380, website
www.alzheimers.org. The Alzheimer’s Association’s local chapters provide extensive
knowledge of resources for families of Alzheimer’s victims in your specific community.
Chapters also offer support from others whose loved ones are victims.

 

Q.I would like help in getting a job, since I feel able to continue working even
though I have retired. Can I get help under the Older Americans Act?

A. Yes. Through the Community Service Employment for Older Americans
program you may be able to get help in finding a job or training opportunity. These may
be part-time positions, at minimum wage. In general, this program is designed for lowerincome
seniors, so income and resource eligibility requirements may apply.

 

Q. I’m retired and I’m looking for new experiences, but I don’t really want to
enroll in a school. Is there anything for me?

A. Many universities, local junior colleges, and museum education programs
provide special programs, reduced fees, and auditing of classes. A call to the one closest to
you can provide information about such programs. The Elderhostel program meets the
needs of people like you. Elderhostel is a not-for-profit agency offering educational
programs for adults aged sixty years and older. Through an international network of
colleges and universities, Elderhostel is able to offer low-cost residential academic
programs both in America and abroad. Courses offered have included “The Literary
Heritage of Oxford,” offered in Oxford, England; “Political Controversies, Judicial
Politics and You”; and lectures on Greek Island society, in conjunction with a cruise of the
Greek Isles. The courses are usually taught by university faculty, and run from one to
three weeks. Most of the time, participants are housed in dormitories. On special trips,
other arrangements may be made. Students may expect to spend approximately three
hours a day in class, with many field trips and opportunities for sightseeing.
For more information, contact your local agency on aging or write to Elderhostel at
75 Federal St., Boston, MA 02110-1941, or call 617-426-8056. web: www.elderhostel.org

 

 

 

 

Rights of Persons with Disabilities

Many older people are unable to manage their daily activities as well as they once
did. Others have disabilities that have worsened with age. Two major federal laws, the
Americans with Disabilities Act and the Fair Housing Amendments Act, protect people
with physical or mental disabilities from discrimination in virtually every aspect of their
lives. In addition, these laws require employers and the providers of services to modify
their rules and policies, and physical environment, to meet the needs of persons with
disabilities.

Q. Who is protected by these laws?

A. Both the Americans with Disabilities Act (ADA) and the Fair Housing
Amendments Act (FHAA), protect people with mental or physical impairments that limit
their ability to perform one or more major life activities. These activities include walking,
seeing, hearing, taking care of personal or health needs or doing everyday chores. The
laws also protect people who are perceived to have a disability, or whose family members
or friends are disabled.
Neither law protects people who threaten the safety or health of others, or whose
behavior would result in substantial damage to the property of others. Nor do the laws
protect current users of illegal drugs.

 

Q. What situations does the Americans with Disabilities Act cover?

A. The ADA protects people with disabilities against discrimination in
employment, public transit and public accommodations (such as hotels, restaurants, banks,
schools and senior centers). It generally does not cover housing (but the FHAA does, see
below) although it does cover some non-housing activities that are based in a housing
facility, such as meal or activity programs to which the public is invited.

 

Q. What situations are covered by the Fair Housing Amendments Act?

A. The FHAA applies to almost all housing transactions. Most importantly for the
purposes of this chapter, the law prohibits landlords from refusing to rent to older people,
or asking them to move, simply because they need assistance with certain activities.

The law does not apply to rental buildings that contain fewer than four units, and where the
owner also lives in the building. Examples of prohibited discrimination include:
· refusing to rent to a family whose member has a mental illness;
· requiring applicants for senior housing to provide a doctor’s letter stating that they are
in good health and can live on their own;
· denying a resident who uses a wheelchair or a walker access to a communal dining
room;
· evicting a tenant because he or she is receiving homemaking help or other services.

 


 

Q. What does “reasonable accommodation” mean

A. Reasonable accommodations are changes in rules or procedures that are
reasonable under the circumstances, and give a disabled person equal opportunity to
participate in a specific activity, program, job or housing situation. They are very
individualized, and can often be worked out informally by the people involved. Examples
include: providing large-print notices, leases or other written materials;
· giving a job or housing applicant more time to fill out an application;
· waiving a no-pets rule for a tenant with a mental disability who is emotionally
dependent on his or her pet, or waiving a no-guest rule for a tenant who needs a live-in
aide;
· assisting a customer who needs help with packages, or with opening and closing doors,
or even with dialing a telephone.

 

Q. What are reasonable modifications?

A. Reasonable modifications are changes to the physical structure of a building or
property, which are reasonable under the circumstances, and which give a person with
disabilities equal access to the premises. Examples include:
· widening doorways and installing ramps;
· replacing doorknobs with lever handles;
· installing grab bars in bathrooms.

 

Q. Who pays for these alterations?

A. In an apartment or other housing program, the landlord pays for alterations to
the common areas, such as hallways, entrances, and meeting rooms. The tenant is
responsible for the costs of modifications inside the apartment. Alterations to public
facilities, hotels, and other programs covered by the ADA are paid for by the owner of the
facility.

 

Q. How do I go about getting some changes made in my apartment?

A. Although many housing providers are familiar with the FHAA, and are working
to make sure that their buildings are accessible, they may not be aware of accommodations
that would make life easier for individual tenants. All you need to do is request the
changes; if they are reasonable, they should be honored. Remember that you are
responsible for the costs of physical alterations inside your own apartment. Also, you may
be required to return the premises to their original condition when you move.

 


Q. What do I do if I believe I am being discriminated against?

 

A. These laws can be enforced through court action or by filing a complaint with
an administrative agency.
If the discrimination involves housing, call the U.S. Department of Housing and
Urban Development’s Fair Housing Complaint Hotline at 1-800-669-9777.
If the discrimination involves employment, public accommodations,
telecommunications or public transit, contact the U.S. Department of Justice, Office on the
Americans with Disabilities Act, Civil Rights Division, at 1-800 514-0301 (voice), or 1-
800 514-0383 (TDD).

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