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

Abstract

The aging American population will quickly lead to a greater demand for long-term care and services for people who are unable to care for themselves. Some older adults may require other individuals to make informed decisions on their behalf. State guardianship programs must confront the tension of providing protections for people who are incapacitated while respecting their autonomy, particularly when making decisions involving a person’s residence. When elderly adults wish to stay in their communities and are capable of doing so, a lack of proper support may be a violation of the Americans with Disabilities Act of 1990 (“ADA”), as interpreted by the U.S. Supreme Court in 1999 in Olmstead v. L.C. ex rel. Zimring. One solution may be found in effective public guardianship programs. This Note 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. This Note then 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.