written by Kerry R. Peck and Quinn Gottlieb (3rd year Law Student at IIT Chicago-Kent College of Law)
Watching somebody make decisions that are not in their best interest is frustrating. Although we may want to intervene, competent adults have the right to make bad choices, even if those choices don’t make sense to others. Our legal system is designed to protect personal freedoms and autonomy. So, unless a judge finds someone legally incapacitated, that person is free to make whatever decisions they want, regardless of rationality, common sense, or outside opinions.
Consider the following situation described in Don’t Let Dementia Steal Everything: Avoid Mistakes, Save Money, and Take Control (2018):
A 96-year-old man wanted to go to Las Vegas and marry his much younger, and very attractive, caregiver. This man was very wealthy and had not known his caregiver very long. Some of his family members questioned whether he was competent and started a guardianship proceeding to try to stop him from marrying the woman. The judge agreed that it was a stupid decision to marry the caregiver; however, the judge ruled that the man was competent enough to make stupid decisions. The man did not need a guardian and was free to make bad personal decisions.
Courts are often asked to intervene when older adults make bad choices, typically through guardianship proceedings. But, the standard for imposing guardianship is more than just reporting a pattern of bad decisions. Courts must assess all circumstances surrounding the individual and decide whether their poor decisions cross the line into incapacity. Incapacity describes the standard courts use when deciding whether someone has a legal disability. Only when an individual is deemed legally incompetent may the court intervene in their decision-making.
A complete assessment is required for a judge to make this determination. Adults are assumed to be legally competent in most contexts unless proven otherwise. Simply being elderly or having a medical diagnosis, including Alzheimer’s, does not automatically make someone incompetent in the eyes of the law. Because courts want to preserve individual freedoms as much as possible, they won’t restrict someone’s right to decision-making unless there is clear and convincing evidence of that person’s incapacity.
When determining incompetence, courts do not base their judgment on disagreements over an individual’s choices. Instead, they take part in a guardianship proceeding: a formal court hearing which the allegedly disabled individual may attend. There, judges review physician’s reports, witness testimony, and other evidence before deciding if guardianship is appropriate. Typically, guardianship is imposed only when proven to be necessary. Guardianship hearings are thorough, time-consuming processes that the court takes very seriously. This standard and all related court procedures ensure that personal freedoms are preserved whenever possible.
So, while it might be tempting to step in when someone makes choices you disagree with, remember that the court uses specific guidelines before interfering with someone’s decision-making. If someone you care about is making choices that have you questioning their competency, discuss the situation with an experienced attorney or physician.
The Law firm of Peck Ritchey, LLC, affiliated for many years with the Illinois Chapter of the Alzheimer’s Association, has recently been named the Legal Education Partner of the Association. Kerry Peck, Managing Partner of Peck Ritchey, LLC serves as Chair of the Illinois Supreme Court Commission on Elder Law and previously as President of the Chicago Bar Association. Mr. Peck is Co-Author of Alzheimer’s and the Law and Don’t Let Dementia Steal Everything, books which he wrote at the request of the American Bar Association. Kerry Peck served on the Association’s Board for many years and the Law Firm was honored last year by the Alzheimer’s Association. Peck Ritchey LLC is a one-stop shop for families navigating the devastating effects of a loved one with Alzheimer’s Disease.
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