I realized the other day there are a handful of things I never tire of watching. One of those is probate court proceedings. Admittedly I watch probate court proceedings in part because I like to watch judges and get to know their propensities – always helpful for both the cases I have in front of them now and the cases I will have before those judges in the future. But what really intrigues me about watching probate court proceedings is to observe how our society is dealing with the primary legal conflict associated with our aging population – that issue is: striking the balance between the dignity and safety of vulnerable adults.
I advise clients on this balance every day. The typical scenario is a parent who is in decline. They are still in their home. They want to stay there. But the child has concerns as to the parent’s ability to stay in the home and be safe. Sometimes the parent is compliant and agrees to having caregivers in the home, limitations on (or elimination of) their driving rights, and physical modifications to the home. But in many cases these steps are either insufficient to provide safety or are simply rejected by a stridently independent (sometimes suspicious and paranoid) parent. So the ball goes back to the child. How concerned are they? Are their concerns real, exaggerated, maybe even motivated by unhealthy family dynamics? In giving advice I often resort to the one-year rule discussed in another post on this blog. But, to be sure, the answer is never easy, and as a result, many of these cases end up in Court.
The law in adult guardianship and conservatorship proceedings is heavily weighted in favor of protecting the independence and dignity of the vulnerable adult. The standard for allowing the court to intervene involves at least two hurdles: (1) Is the subject of the petition sufficiently impaired (for a guardianship the standard is whether the person is unable to make and communicate informed decisions, for a conservator the standard is whether the person is unable to manage their affairs); and even if the first threshold is met, the court must also deny the petition if (2) sufficient alternative protections are or could be put in place. In addition to these difficult threshold issues that the court must decide, the burden in these cases is on the party seeking the guardianship or conservatorship and the standard by which they must prove the case is the highest standard in the law: clear and convincing evidence. As should be evident, the law considers a court’s intervention into the life of a vulnerable adult as a very serious undertaking only to be allowed where no other result is adequate. And for good reason, the imposition of a guardianship or conservatorship over an adult is an invasion by the state into the fundamental rights of that person. It essentially reduces an adult to the legal status of a child.