Some Pros and Cons of Having an Adult Guardian Appointed

While most middle-aged and older adults recognize their need for a Will and a basic estate plan, far fewer understand when it may (or may not) be in their best interest to have a formal guardian appointed to help them manage all their personal and financial (estate) decisions. In general, if you’re still capable of making fully competent decisions regarding your finances, basic living arrangements, and medical care needs, you probably don’t need a guardian appointed for you.

However, if you’re currently suffering from some form of mental incapacity or dementia that impairs your ability to handle such matters, then you may need to have a guardian appointed to help you manage your affairs (either temporarily or permanently).

This article first reviews some of the dangers that can occur when the wrong person becomes your guardian and then lists the various legal documents that can help all adults provide for their general medical, financial, and everyday needs should they unexpectedly become very ill or need extensive medical treatment.

Can Courts Abruptly Take Away Elderly People’s Rights to Live as They Choose?

The New Yorker magazine recently published an article in October 2017 entitled, “How the Elderly Lose Their Rights.” It details the real-life experience of many seniors who suddenly found themselves under the control of a “questionable” court-appointed guardian in Clark County, Nevada. In some cases, these older Americans were in regular contact with family members – when a local court guardian decided that they could no longer live on their own and required her overbearing control of their lives.

In some instances, all it took was a hired home healthcare aide’s statement that the elderly person could no longer properly care for himself or his spouse, even though appropriate outside care had obviously been employed for such purposes. One court guardian (who’s been indicted for her actions), would simply arrive at an elderly person’s apartment or senior care facility and announce that she had just gotten herself appointed as that person’s (or couple’s) legal guardian. That same day, the individuals were then forced to leave where they had been living and go move in where this previously unknown woman directed.

Immediate attempts by family and other outsiders who tried to help proved futile. Instead of the court allowing the elderly to appear in court to respond to concerns about their mental competency, the court allowed a court-appointed, professional guardian to file emergency ex parte petitions indicating that immediate decisions had to be made regarding the seniors’ best interests. One couple’s daughter who tried to help her parents after they suddenly disappeared from their home had to endure various types of character assassination before she finally won their freedom. By that time, all her parent’s finances had been drained – supposedly spent in their best interests.

Sadly, the article also contains the chilling observation that this type of elder abuse has become far too common in many counties across this nation – especially in areas where seniors tend to congregate. Hopefully, more states will follow Nevada’s current plans to soon pass legislation that will expressly give seniors the right to be represented by attorneys during all guardianship competency hearings.

Conclusions

Since no adult ever wants to be suddenly “kidnapped”  or taken somewhere (at any age) by a court-appointed guardian or “professional” — it makes sense for all older adults to have their lawyers provide them with the following critical documents:  an Advance Directive for Medical Care, a Durable Power of Attorney and a Declaration of Guardian in the Event of Later Incapacity or Need of Guardian. By naming someone you know and trust in these documents, it should make it easier for your relatives and friends to help you in a manner that fully comports with your stated preferences should you one day become very ill or incapacitated.

Please contact our law firm if you need to ask any questions about creating an estate plan or having the types of documents referenced in this article prepared for you and other loved ones.

What Really Constitutes Sexual Harassment in the Workplace?

The latter part of 2017 may always be remembered as a watershed time in America’s cultural history regarding sexual harassment. After numerous women stepped forward and complained about the allegedly crude sexual behavior of Hollywood film producer Harvey Weinstein(1) and other men in high-ranking entertainment and news media positions, major corporations responded swiftly.

Men like Charlie Rose, the Today Show’s Matt Lauer – and even Garrison Keillor(2) were suddenly fired or saw valuable work contracts cancelled. Perhaps the earlier charges against Bill Cosby involving at least 50 women had played a role in convincing the public that far too many women may actually be suffering routine sexual harassment. Whatever caused this seismic shift in consciousness, a clear message was sent that all offensive sexual behavior in the workplace – regardless of the victim’s gender — must stop now.

However, since a small number of people still question some of these allegations, that issue should be briefly addressed now – before explaining much more basic information about what legally constitutes sexual harassment.

Are False Reports of Sexual Harassment Common?

Women usually gain nothing when sharing past stories about sexual harassment and abuse – especially when most are not rushing to nearby courthouses to file charges against those who mistreated them. There is no pride in sharing such stories – only a sense of vindication when believed. Furthermore, false reports of sexual harassment are rare. In fact, it’s currently estimated that they only constitute about five to seven percent of all allegations.

What follows now is a brief survey of how the EEOC (Equal Employment Opportunity Commission) and others define sexual harassment, along with specific examples of sexually offensive words and behaviors that should never be tolerated in any work-related environment. After all, everyone is more productive when treated with respect.

How Does the EEOC Define Workplace Sexual Harassment?

This unacceptable activity usually includes offensive words or behavior directed toward job applicants or employees by people in positions of authority (or co-workers). However, in some instances, sexual harassment can also include an employer’s customer or client behaving in a grossly offensive manner toward an employee.

All employers must recognize that sexual harassment is a type of sexual discrimination that is forbidden by Title VII of the Civil Rights Act of 1964. That law covers all workplaces with 15 or more employees – including people working for state and local governments. It also applies to members of labor organizations and those working for employment agencies and the federal government.

Sexual harassment may often be considered so offensive that a reasonable person might describe the workplace atmosphere as being intimidating or hostile. Although most sexual harassment tends to be directed at women – it should be emphasized that women may also be found liable for this type of illegal behavior.

While no list could ever fully indicate every set of words or behaviors that constitute sexual harassment, there’s one posted on the website of the United Nations that provides helpful guidance.

Words and Actions Frequently Considered Sexually Inappropriate in the Workplace

  • Repeatedly asking the same person to go out on a lunch date (or to various social events) with you when no special interpersonal relationship has been consensually established;
  • Touching other workers when there is no excuse to do so – or rubbing up against someone when there’s plenty of room to avoid doing so while handling your job;
  • Making offensive gestures with your fingers, hands or body in a manner that suggests that you would like to have sex with someone;
  • Handing out (or posting) offensive drawings or pictures involving sex that a reasonable person would know might be offensive to some people;
  • Making noises or sounds as though kissing another person or having some type of sex with them;
  • Spreading false sexual rumors about co-workers or others in the workplace in hopes of jeopardizing their job security;
  • Repeatedly telling jokes or stories about sexual “conquests” that others might consider offensive;
  • Looking at others in a manner that indicates that you are “sizing them up” sexually in a suggestive manner.

If you still find it hard to decide what’s acceptable workplace behavior – then always act as though every interaction you have with others at work is being videotaped and recorded. Better yet, simply treat everyone with the same level of respect in the workplace that you normally show to your most important clients or customers.

Please feel free to contact our office if you need help drafting the “sexual harassment” sections of your employee handbook or need advice on evaluating appropriate workplace training programs that address this topic. We can also help you evaluate any formal or informal sexual harassment complaints that employees may have filed with the EEOC or your human resources department.

(1) https://www.barna.com/research/behaviors-americans-count-as-harassment/?utm_source=Barna+Update+List&utm_campaign=59e62a6e6f-EMAIL_CAMPAIGN_2017_11_28&utm_medium=email&utm_term=0_8560a0e52e-59e62a6e6f-171985045&mc_cid=59e62a6e6f&mc_eid=c0385fd205

(2) https://www.barna.com/research/behaviors-americans-count-as-harassment/?utm_source=Barna+Update+List&utm_campaign=59e62a6e6f-EMAIL_CAMPAIGN_2017_11_28&utm_medium=email&utm_term=0_8560a0e52e-59e62a6e6f-171985045&mc_cid=59e62a6e6f&mc_eid=c0385fd205