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Law Offices of Ronald W. Rutz
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March 8, 2001: Elderly Rights - Suspected Nursing Home Foul Play

Q: Don't old people have any rights? Right now a son put his mother in a nursing home and got appointed both conservator and guardian. He is not letting anyone see her. In fact, he put her in a nursing home 200 miles away.

A: Before a guardianship or a conservatorship can be set up, the "Petitioner," in this case the son, must obtain letters from two doctors indicating the need to protect the person (in this case the mother). Temporary "orders" can be obtained if the Petitioner alleges facts to show that immediate action must happen.

Now the quality of the doctors' letters and the nature of the "emergency" does vary from county to county and from judge to judge. Normally if nothing is suspicious and a close relative is the Petitioner, temporary "orders" are granted automatically with no input from the person.

Yes, much mischief can occur and may or may not be going on here. But at some point a "visitor" is appointed by the Court who will go talk with the person and parties involved. A report is then given to the Judge, the visitor's opinion being very important to the Judge.

Thereafter the Judge can order a hearing and in his or her chambers, one on one with the person, see what is going on.

Thus, the system eventually catches up to involve the person for whom protection is sought. But in my opinion, if an individual is out to exploit another person, this is not the best way to go. Even if the guardianship and/or conservatorship survives the process (especially the visitor's report and the conference with the Judge where the two are alone), the appointed person must file an inventory and annual accountings. Thus the Court can see if problems are developing and the "fiduciary" will be held to a high standard and possible criminal sanctions.

And at anytime during the process, a "friend of the Court" (meaning you, for example) can raise an alarm and alert the Judge to pay special attention to what is going on.

Thus, although the facts might look suspicious, if you are concerned, as a friend of the Court, flag this for the Court's attention or be certain that the Judge is alerted to take a hard look at this matter.

Now if a durable power of attorney was involved, I would be much more concerned because there is no direct Court review or possible immediate intervention as with the guardianship/conservatorship approach.

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