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55 B.C. L. Rev. 1217 (2014)
Guarding the Golden Years: How Public Guardianship for Elders Can Help States Meet the Mandates of Olmstead

handle is hein.journals/bclr55 and id is 1223 raw text is: 





   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 pro-
   grams. 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 guardi-
   anship programs, if appropriately funded and held to proper standards, can help
   states meet the mandates of the ADA and Olmstead.


     The  American  population is aging rapidly, with significant implications
for policy makers and society..' 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 technolo-
gies 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

     See William G. Gale & Peter R. Orszag, An Economic Assessment of Tax Policy in the Bush
Administration, 2001-2004,45 B.C. L. REV. 1157, 1177 (2004) (noting the imminent retirement age
of baby boomers); Jon Pynoos et al., Aging in Place, Housing, and the Law, 16 ELDER L.J. 77, 79
(2008) (noting that baby boomers will have needs different from previous populations and will have
impacts on their communities); LORAINE A. WESTET AL., 65+ IN THE UNITED STATES: 2010, at 5 (U.S.
Census Bureau 2014), available at http://www.census.gov/content/dam/Census/library/publications/
2014/demo/p23-212.pdf, archived at http://perma.cc/S63C-TKB9 (reporting that the population of
Americans aged 65 and older continually grows more rapidly than the population under 65).
    2 See West et al., supra note 1, at 5. This percentage increased from 4.1% in 1900 to 13% in
2010. Id.
    3 See A. Frank Johns, Person-Centered Planning in Guardianship: A Little Hope for the Future,
2012 UTAH L. REv. 1541, 1546 (discussing forecasted increases in the aging and developmental disa-
bilities populations, along with how families are more geographically spread out and are therefore less


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