Sunday, July 6, 2008

ADA and Court Sanctioned Elder Abuse

Back in 1993/94 when I was working with a group of congenitally blind men and women who were part of my dissertation research group, I came to know a wonderfully intelligent woman who had been born blind and used a guide dog as her vehicle for independence in a sighted world. She loved to travel to Hawaii to go surfing, but was saddened that Hawaii's strict quarantine laws prevented her from bringing her guide dog to Oahu. Before long, however, a group representing the blind sued Hawaii under the Americans with Disabilities Act of 1990 and forced the State to permit visually-disabled persons to travel to Hawaii with their guide dogs.

And so I am wondering if there might be a way to use the ADA to force States to stop imposing draconian conservatorships and guardianships over persons who are alleged by petitioners to be disabled and then determined to be disabled by the Court (see the ADA's definition of "disabled" below in section (2)). Could this be a way to stop the madness? Could application of the Americans with Disabilities Act permit Federal oversight that would protect the civil due process rights and Constitutional rights of the senior men and women whose lives are being destroyed by these proceedings--this court-sanctioned elder abuse?
In researching the ADA of 1990, I find that:

(1) The Americans with Disabilities Act (ADA) gives federal civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public
accommodations, employment, transportation, State and local government services, and telecommunications.

(2) A person is considered "disabled" if he/she has a physical or mental impairment substantially limiting a major life activity; or he/she has a record of disability; or he/she is regarded as having a disability. An individual is considered to have a "disability" if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

Let me give an example of the work being done in one State-Kansas-to work on Disability Concerns:

The Kansas Commission on Disability Concerns (KCDC) is an office within the Kansas Department of Human Resources. As established by statute, KCDC is empowered to:

**Carry on a continuing program to promote a higher quality of life for people with disabilities.

**Cooperate with all public and private agencies interested in the rehabilitation and employment of people with disabilities.
**Encourage the organization of community-based programs and work closely with such programs in promoting independence of people with disabilities.

**Assist in developing societal acceptance of people with disabilities.
**Inform individuals with disabilities of specific facilities available for increasing their independence.

When a conservatorship or guardianship is imposed upon a given individual, that man or woman loses almost every right an adult possesses and is, in effect, reduced to the legal status of an unemancipated child. Why can we not figure out a way to use the Americans with Disabilities Act to make this impossible? If a man or woman is determined to be "incapacitated" or "incompetent" in a court of law, is this not an adjudication of a disability, that "he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment"? What else could the ruling be but a statement of disability? Then why can we not try to use the ADA of 1990 to eliminate conservatorships and guardianships entirely and focus on promoting independence for these people with identified disabilities?

Is this not possible? You all know I am a Clinical Psychologist rather than an attorney, but this has been niggling away at me for a long long time. I am of the belief that what is being done now-below the public's radar-to successfully aging men and women in our State conservatorship/guardianship courts is criminal.

I look forward to a vigorous discussion of the possibility that simply ruling a person to be disabled in court this way might somehow invoke the civil and constitutional protections mandated in our country's Americans with Disabilities Act.

With hope,

Diane G. Armstrong, Ph.D.

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