Site Tools

Current Size: 100%

CLS Blog: Decision Making and Independence for Older Adults

Aging and Disabilities

CLS Blog: Decision Making and Independence for Older Adults

May is Older Americans month. This series explores new and growing movements and ideas that help older adults maintain their independence and autonomy throughout later life. We will be exploring alternatives to guardianship, and home and community based services and supports.

One of the most commonly thought of side effects of aging is the decline of our cognitive functions—as most people age, they will experience more difficulty with their memory and retaining information, whether this is due to Alzheimer’s, dementia, or other causes.  When we do experience mental decline, it often leads to a situation where it becomes unclear how much we should be left to our own devices—what if we want to live alone at home, but present a high risk of falling and hurting ourselves?  What if we want to manage our own finances, but forget to pay our bills?  Or if we seem to be at risk of financial exploitation?

This is one of the reasons for the creation of the adult guardianship system, which allows another person to substitute their own judgement for that of an older adult, or a younger adult with intellectual disabilities.  While the guardianship system has been vital for many individuals and families, it also has its downsides.  For one thing, such a system has a high potential for abuse if bad actors become appointed as guardians and take control of the financial and medical decisions of the individual. For another, a non-family member guardian may not fully be able to know or understand an individual’s wishes for their future.  And lastly, while many older adults may not have the full capacity to make decisions that they once had, it is an extreme step to take away someone’s fundamental right of self-determination.  While Pennsylvania guardianship laws dictate that the wishes of an individual under guardianship be respected as much as possible, it is hard to determine how much that happens in practice, and there are few guidelines for guardians to determine how they should make determinations about how far they should go in respecting the individual’s wishes versus ensuring their safety.

This is really the debate at the core of this issue: how can we balance someone’s right to make choices about their life with concerns for their safety and wellbeing that they may not be taking (or be able to take) into full consideration?  This especially rings true when we think about the fact that all adults sometimes make choices that are not in our best interests.  As David Godfrey, a senior attorney to the American Bar Association’s Commission on Law and Aging, writes, we “have a right to ignore the advice and make what others may see as bad choices.”[1]  But whether to honor this right presents a difficult choice when someone’s health and safety are at risk.

This is where the concept of Supported Decision Making comes into the picture.  Supported Decision Making, or SDM, allows individuals to create a support network of people who provide them with a structure for making decisions.  SDM has been gaining traction and popularity in states across the country, but does not require legislation in order to take effect.  It allows individuals to maintain control over their lives to the greatest extent possible, while ensuring that there is a stable support network and safety net for all important life decisions.

When an individual wishes to enter a Supported Decision Making agreement, they first select the people around them who they trust enough to help them make their important life decisions.  This can include, family, friends, other caretakers, legal representatives, medical professionals, and beyond.  With the support team, the individual works out what specific supports are needed.  Do they want someone to help them pay their bills and manage their financial decisions?  Do they need information regarding medical decisions communicated in a different way?  As the ACLU notes, SDM is different for everyone, based on their specific needs and wishes, as well as the support network they’ve already built.[2]   While most states do not officially recognize SDM (Texas is currently the exception), it is often helpful to write up the plan created under SDM and have all parties sign it, so that it is more easily accepted by legal, medical, and financial institutions.

SDM ensures that all necessary factors are taken into consideration when making an important decision, while also respecting an individual’s autonomy to control their own life, even as they may not have the same cognitive functioning that they had before.

While Supported Decision Making may not be the best option in all cases, it does represent a massive step forward in honoring the independence and autonomy of older adults, and is an important move as we think about how we all want to live as we age.

Community Legal Services can help some people who are having issues with guardianship.  If you have a guardian and are having problems with them, or if there are court proceedings underway to determine if you need a guardian and you do not want one, please contact us.  The walk-in hours for our Aging & Disabilities Unit are on Mondays and Wednesdays from 9am to noon in our office at 1410 W. Erie Avenue, Philadelphia PA.

 

 

[1] Godfrey, David. “Supported Decision Making in Later Life.”

[2] American Civil Liberties Union. “Supported Decision-Making: Frequently Asked Questions.” https://www.aclu.org/other/faqs-about-supported-decision-making

 

Date: 
05/29/2018