Guarding the Golden Years: How Public Guardianship for Elders Can Help States Meet the Mandates of Olmstead

INTRODUCTIONThe American population is aging rapidly, with significant implications for policy makers and society.1 With seventy-five million baby boomers born between 1946 and 1964, approximately one in five Americans is expected to be over sixty-five by the year 2050.2 With improvements in medical technologies leading to longer life expectancies, baby boomers are expected to live longer after being diagnosed with a debilitating illness.3 In addition, the rise in the older adult population will result in more people becoming incapacitated by mental illness, including dementia.4 Consequently, aging adults who are unable to care for themselves will have a greater need for long-term care and services.5 As people live longer with potentially incapacitating conditions, some older adults will require others to make informed decisions on their behalf.6Given the aging population, guardianship programs for elders in the United States must confront this issue.7 Guardians and caregivers have long experienced the tension of protecting individuals who are incapacitated, primarily elders and people with disabilities, while respecting their autonomy.8 The desire to protect these populations historically led to their placement in nursing homes and other institutions.9 Policy makers have begun to reallocate funds to allow people to remain in the community for as long as possible.10 Moreover, research shows that the practice of encouraging home and community based options aligns with people's preferences.11 All too often, however, barriers, including lack of funding and proper support, lead to older adults being institutionalized against their will.12The tension between protecting people from harm and respecting their self-autonomy will affect millions of individuals and families in the decades to come.13 Given that some elderly adults who are institutionalized arguably could continue to thrive in the community, a lack of proper support for this option may be in violation of the ADA, as interpreted by the U.S. Supreme Court in 1999 in Olmstead v. L.C. ex rel. Zimring.14 One solution may be found in effective public guardianship programs.15This Note explores the issue of guardianship for elders in the United States, giving particular attention to the value of and rising need for public guardianship.16 Part I gives an overview of the history of guardianship in the United States, the ADA, and Olmstead.17 Part II then explores the effect of Olmstead on state funding for long-term care, the implications of the Olmstead decision for guardianship, and common models of public guardianship.18 Finally, Part III argues that existing public guardianship programs, if appropriately funded and held to proper standards, can help states meet the mandates of the ADA and Olmstead.19I. AN OVERVIEW OF THE ADA, OLMSTEAD, AND PUBLIC GUARDIANSHIPGuardianship laws affect nearly every aspect of an incapacitated person's life: traveling, finances, medical treatment, the ability to vote, opportunities to socialize, and housing and residency.20 Section A of this Part gives a history of long-term care and guardianship in the United States.21 Section B provides a brief overview of the genesis and rationale behind the ADA.22 Section C then examines Olmstead, which articulated the right of Americans with disabilities to live in the community as long as it is safe for them to do so.23A. History of Public Guardianship StatutesAmerica's guardianship laws date back to at least the feudal English system.24 Following the American Revolution, the United States assumed the general authority to protect Americans unable to care for themselves.25 This authority likely led to the mass institutionalization of people with disabilities, as states used the authority intended to protect people with disabilities to instead protect society from people with disabilities.26 The choices, abilities, and contributions to society of people with disabilities was rarely considered or even acknowledged. …