Saturday, June 15th, marks World Elder Abuse Awareness Day (WEAAD). In recognition, Lavender Legal Center wishes to raise awareness and share resources for promoting dignity and autonomy for older persons within the LGBTQ+ community.
Although projections expect that 1 in every 6 people will be aged 65 or over by 2025, and that 1 in 6 people aged 60 years or older experience some form of elder abuse in a community setting per year, elder abuse remains underreported and under-addressed.
Elder abuse can be perpetrated in many forms, whether it be physical, psychological, emotional, sexual, financial, neglect, and/or loss of dignity and autonomy. Although rates of elder abuse are reported highest in institutions like nursing homes and long-term facilities, it is important to remember that it can also happen within the home and in other settings like hospitals and public facilities.
We will first address how the rights of older persons have and can be restricted, and then how to prevent this restriction of rights and preserve one’s dignity and autonomy.
The Restriction of Rights
There are two main ways that an older person’s rights can be restricted through the court: guardianships and conservatorships. Guardianships deal with non-financial decision-making (such as medical care, contracts, living situations and what a person does on a day to day basis) while conservatorships deal with financial decisions. Typically, a guardianship can be ordered when the protected person is found through a burden of proof to be incapacitated to where they don’t have the decision-making capacity to provide for their own physical health. A conservatorship can be ordered based on clear and convincing evidence that the protected person is incapacitated to make financial decisions.
Unfortunately, under both guardianships and conservatorships, there can be a significant loss of freedom and dignity of the “protected person” as many of their rights in decision-making and autonomy are stripped away. Despite what may even be good intentions, these court orders can lead to emotional, financial, and medical devastation. Although guardians in particular have a fiduciary duty of care to their protected person, they can often disregard what that person’s explicit wishes are by claiming that it is against their best interests. This leads to the degradation of one’s autonomy and ultimately is a form of emotional and psychological abuse. It can also lead to continued abuse in other forms when a person is admitted to a care facility they do not wish to be in.
Under a full guardianship, there is no law stating that the protected person doesn’t have a say in decision making for their life. Rather, the guardian is supposed to involve the protected person’s opinion and attempt to balance their dignity with a duty of care. Despite this, many guardianships can take bad turns when the protected person’s wishes are not respected.
In fact, there is not much oversight on older people’s rights being restricted like there is for youth, which can stem from ageism and a lack of care. Often, people admit older persons to nursing homes or other long-term care facilities without that facility conducting full checks on whether or not the person admitting them has the legal power to do so. Guardianships are often limited by courts in what powers they have, but this can be overlooked.
In 2019, Iowa modified its guardianship laws to improve the protection of people under a guardianship. The main change was the elimination of “voluntary” guardianships, where a person could agree to needing a guardian without having a court hearing. These “voluntary” guardianships often led to vulnerable people being coerced into consenting to a guardianship without fully understanding the rights they were forfeiting. Another change was in terminology from “ward” to “protected person” for the person under a guardianship.
Now, only “involuntary” guardianships are permitted, which require a guardianship to be assigned after a court hearing where the reasons for the assignment are presented. Additionally, guardianships now require initial care plans to be given to the court which detail how they will use their decision-making authority and what their overall plan of care is for the protected person.
Although these changes to Iowa’s guardianship laws have been a step in the right direction, there are still major concerns about the rights of older persons and protecting their autonomy in the best way possible.
Preserving Dignity and Autonomy
Advanced directives and power of attorney are uniquely significant to LGBTQ+ community members because of the default state medical decision-making laws. These laws and their guidelines are followed when an individual does not have an advanced directive in place and provide a list of potential surrogate decision-makers that healthcare providers must select from to make decisions for the incapacitated individual. However, due to a lack of recognition for same-sex relationships, many same-sex relationships are not included in these default surrogate-selection laws.
It is therefore important for older LGBTQ+ individuals to ensure that they have an advanced directive so that their medical care is conducted in a way that adheres to their wishes and autonomy. And, in case an unexpected medical situation arises that is not covered by the advanced directive, a trusted person with power of attorney can act on their behalf and make decisions that would best reflect those wishes too.
Decisions can go beyond what medical procedures or medications are being implemented or not implemented. It can also include advocating what name is used for a person in the healthcare facility, advocating for the right pronoun usage, and more aspects specifically relevant to the dignity of an LGBTQ+ person. Elder abuse includes emotional and psychological abuse- thus older LGBTQ+ persons are more at risk of having their rights in medical care stripped away, may experience these forms of abuse and loss of dignity at higher rates.
A power of attorney is not only useful for medical care- but also for finances and estate planning. Again, this allows for a trusted and chosen person to make financial decisions on a person’s behalf if they ever become incapacitated. This power can either be broad and cover all financial affairs or be limited to certain transactions such as a specific piece of property.
You may be wondering: What if a person has both a court-appointed guardian and a person appointed with power of attorney? What if a person has an appointed guardian and an advanced directive? And most of all: what happens if the guardian disagrees with the decision made by the person with power of attorney or the advanced directive? Whose decision takes legal priority?
Generally, a person with power of attorney has priority over any other person for healthcare decisions, including a court-appointed guardian. Furthermore, a guardian cannot disregard a person’s wishes explicitly set out in an advanced directive or living will. However, it is important to note that a guardian’s petition and order might terminate the health care power of an attorney appointment.
Courts typically do not stray from this unless for very good and evidenced reasons. Especially in Iowa, laws require that courts only set up guardianships when absolutely necessary. This typically means that Iowan guardianships are ordered only as a last resort, and they will be limited in the presence of an attorney appointment (if ordered at all). This highlights the importance of creating an advanced directive and appointing power of attorney to a trusted person for medical decisions should incapacitation occur.
Finally, it is important to note that the rights of older LGBTQ+ persons can be restricted informally too. Family members of the person, even without a court order, can often restrict an older person’s ability to get medical care or make other life decisions. This is especially pertinent for LGBTQ+ persons, who may be seeking medical care or legal help for their identity. This could include gender marker and name changes, gender-affirming care, and even the ability to interact with the LGBTQ+ community or a partner they are not married to.
As a matter of respect and shared humanity, we all have a duty to be humble and listen to the wishes of all people, which includes older LGBTQ+ persons. Humility and empathy are essential in this practice, and we should strive to understand that every person has their own desires and expectations for their life, and should have a protected right in their decision-making.
This blog post is not intended as legal advice. If you want to set up advance directives, contact a lawyer such as Lavender Legal Center.
Jay Moran, he/they
Law Student Intern
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