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560 Geriatic Patients

food); deprivation of civil rights (e.g., freedom of move- ment and communication); and financial exploitation.11

In addition, a significant proportion of reported cases of elder mistreatment fall into the category of self-neglect by older persons living alone, without any informal (i.e., unpaid family or friends) or formal (i.e., paid) caregivers. Examples of self-neglect may include an individual’s failure to maintain adequate nutrition, hydration, or hygiene, use physical aids such as eyeglasses, hearing aids, or false teeth, or maintain a safe environment for himself or herself. Self- neglect may be suspected in the presence of dehydration, malnourishment, decubitus ulcers, poor personal hygiene, or lack of compliance with basic medical recommendations.12

A few states have enacted distinct statutes dealing with cases of institutional abuse and neglect of older residents. Terms of these statutes may apply to nursing facilities, board and care homes, and assisted living arrangements. Even without such precisely focused legislation in a partic- ular jurisdiction, resident mistreatment by long-term care institutional staff is condemned by federal regulations,13 including restrictions on the use of involuntary mechani- cal and chemical restraints,14 as well as by state institu- tional licensing statutes and common law tort standards.15 Also, a number of states explicitly lump together institu- tional and informal caregiver mistreatment in the same statutes, rather than legislatively handling them distinctly.

Every state has exercised its parens patriae power to protect those who cannot fend for themselves by enacting a statute dealing with the reporting of elder mistreatment suspicions by health care professionals to specific public welfare or law enforcement authorities.16 Some state statutes single out the elderly, while others just use age 18 and vulnerability to mis- treatment as the criteria for reporting and intervention. Almost every state mandates reporting of suspected elder abuse and neglect, with criminal penalties and/or civil fines specified for noncompliance in most statutory schemes. A private tort action may also be brought by a mistreatment victim whose injuries were exacerbated by the professional’s failure to report in timely fashion.17

The remaining jurisdictions make reporting a voluntary matter, with legislation stating that a report “may” rather than “shall” be filed. Whether reporting of mistreatment cases is required or only permitted, all of the statutes immunize the mandated or authorized reporters against any potential liability (e.g., for breach of the duty of patient confidentiality or for defamation) for making the report, as long as the report was made in good faith and without malicious intent.18

In recognition of the potential for elder abuse and neg- lect, the states have created a wide variety of programs under the general heading of Adult Protective Services (APS). The basic definition of this concept is a system of preventive and supportive services for older persons living in the community to enable them to remain as independ- ent as possible while avoiding abuse and exploitation by others. Good APS programs are characterized by the coordinated delivery of services to adults at risk and the actual or potential authority to provide surrogate decision- making regarding those services.19


Although the law presumes that adults are capable of mak- ing voluntary, informed, and understanding decisions that affect their lives, sometimes this presumption is not accu- rate.20 A significant minority of older individuals have impaired ability to make and communicate their own choices about personal (including medical) and financial matters in a rational and authentic manner. The preva- lence of dementia and other severe mental disabilities among the aged indicates the strong probability that this phenomenon will expand in the future. One important device within the legal system (both domestically and


for dealing with the problem of cogni-

tively incapacitated individuals, and the concomitant need for some form of surrogate decision-making on their behalf, is guardianship.22

Guardianship is a legal relationship, established by the order of a state court under the authority of a state statute, between a ward (the person whom a court has declared to be incompetent to make decisions) and a guardian (whom the court appoints as the surrogate decision-maker for the ward). Terminology regarding this relationship varies among jurisdictions; in some states such as California, for example, this concept is referred to as conservatorship.

Judicial appointment of a guardian to make decisions on behalf of a person who has been adjudicated incompetent ordinarily occurs in response to a petition filed by the family, a health care facility, or an APS agency.23 The legal proceeding involves review by the court of the sworn affi- davit or live testimony of a physician who has examined the alleged incompetent person. An adjudication of incompetence means that the ward no longer retains the power to exercise those decisional rights that have been delegated to the guardian. The appointment of a guardian is an exercise of the state’s inherent parens patriae power to protect from harm persons who are not able to care for themselves.24 The performance of the guardian as a fiduci- ary or trust agent of the ward remains subject to continu- ing oversight by the appointing court.25

The legal system historically has treated guardianship as an all-or-nothing proposition, global findings of incompe- tence being accompanied by virtually complete disenfran- chisement of the ward. Lately, however, states have amended their statutes to recognize the concept of limited or partial guardianship, which accounts for the decision- specific nature of mental capacity and the ability of some people rationally to make certain kinds of choices but not others.26 Because creating total or “plenary” guardianship usually entails an extensive deprivation of an individual’s basic personal and property rights, the “least restrictive/least intrusive alternative” doctrine makes limited or partial guardianship preferred.

The modern trend in surrogate decision-making has been toward the substituted judgment standard. Under this approach, the guardian is required to make the same decisions that the patient would make, according to the patient’s own preferences and values to the extent they can

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