Autonomy vs Dependence for Older Adults
Vulnerable older adults may need protection, but protection is often antithetical to autonomy. The more we help older adults the more we take away their autonomy. There is a need to balance the right to be autonomous while protecting the vulnerable elderly.
But older adults, when not vulnerable, should be free to expose themselves to risk, just as younger adults can. To reduce older adults’ dependency we must recognize and expand their rights.
This is especially important when considering guardianship. With full (plenary) guardianship you are in effect a ‘non-person.’ People under guardianship can experience a “significant negative impact on their physical and mental health, longevity, ability to function, and reports of subjective well-being” (Wright, 2010). Full (plenary) guardianship has been likened to prison, except prisoners have more rights than an adult under a guardianship order!
The present Committeeship process for court ordered guardianship in BC leaves a lot to be desired. We need to ensure that the process for determining the need for guardianship is as careful as possible – the process for statutory property guardianship – with both a medical assessment and a functional assessment – is a preferred model to what we have now. There also needs to be a greater emphasis on limited guardianship orders and supported rather than substitute decision making wherever possible. One possible model for this is Florida’s use of 17 rights that can only be taken away if they are individually considered in any guardianship application and order:
- Dissolution of marriage, petition for
- Driver’s License, To apply for
- Employment, Seek or retain
- Experimental Biomedical or Behavioral Procedures or Experiments, Consent to participate in
- Governmental Services, Apply for
- Lawsuits, Sue and defend
- Living Arrangements, Right to decide
- Medical, Dental, Surgical and Mental Health Treatment, Consent to
- Money and Property, Manage
- Parental Rights, Consent to termination of
- Social Aspects of Life, Consent to
- Sterilization or Abortion, Consent to
- Commit a Person to a facility, institution or licensed service provider without formal placement proceeding
As legal advocates we have a major role to play in the sorting out of the proper mix of protection and autonomy.
People with greater self determination are:
- More independent
- More well-adjusted including better adjustment to increased care needs
- Better able to recognize and resist abuse
(Khemka, Hickson, & Reynolds, 2005;O’Connor & Vallerand, 1994; Wehmeyer &Schwartz, 1998).
(O’Connor & Vallerand, 1994)
Women with intellectual disabilities exercising more self-determination are less likely to be abused.
(Khemka, Hickson, and Reynolds, 2005)
When denied self-determination, people:
- “[F]eel helpless, hopeless, and self-critical” (Deci, 1975, p. 208).
- Experience “low self-esteem, passivity, and feelings of inadequacy and incompetency,” decreasing their ability to function(Winick, 1995, p. 21).
One area where the tension between autonomy and dependence comes into play is when dealing with interested third parties who come to an appointment here at Seniors First BC – family members, friends, neighbours. They may be very involved in helping the older adult with important matters. They might even have arranged the appointment.
A useful American Bar Association pamphlet (Why Am I Left In The Waiting Room – Understanding the 4 C’s of Elder Law Ethics) explains to ‘friends’ and relatives why we as legal worker need to meet with a client alone if at all possible to properly address the four C’s of elder law ethics:
- Client ID (who is the client – what are instructions)
- Conflicts of Interest (only one client if possible)
- Confidentiality (and protection of privilege)
- Competency (assessing capacity)