Civil Remedy for Unjust Institutionalization

Factual Questions
1

You are not my lawyer, I am not your client, blah blah blah.

This situation happened in Illinois. a 60-year-old man with mild mental retardation was living in his own apartment. He was in a small town where he didn’t have access to any social services (Visiting Nurse’s Association, a 3rd-party representative payee to manage his Social Security Benefits, etc.). He was not keeping his apartment clean; he ate mostly Snickers and Hardee’s Biscuits & Gravy, and he wasn’t paying his rent. An old friend of his (deceased) mother decided that she didn’t like the way the man was living his life, and convinced a judge in the small town to have him declared incompetent and have herself named guardian. Then she had him sent to live in a privately-run 96-bed ICFDD (Intermediate Care Facility for the Developmentally Disabled). He lived there for two years. Every day during those two years, he would tell whoever was in earshot that he didn’t want to live there. However, his pleas fell on deaf ears. His guardian insisted that he belonged in an institution, and the management of the ICFDD wouldn’t advocate for his discharge back into the community.

This man’s two-year stay in this ICFDD has been pure hell for him. He did not belong there (a man who had lived on his own for decades was living in a group home with people whose IQ’s were so low that mostly all they did was sit around and drool). He wanted out, and called his guardian daily and begged her to help him get back into an apartment (until she got sick of it and hung up on hime). And he frequently begged the manager of the ICFDD to help him leave, and he would simply respond by telling the man that he couldn’t live on his own and belonged in an institution.

Ultimately, the ICFDD had enough of him (he acted out pretty frequently) and pulled some strings to get him into a 6-bed group home where he’ll have considerably more freedom (though he still won’t be in his own apartment, which is what he wants). His guardian vehemently opposed this, but when management of the ICFDD made it clear that he wasn’t staying, the guardian reluctantly agreed.

Here are my questions:

  1. Is there any provision in Illinois law that allows a person to recover damages for being unjustly institutionalized (and/or having that institutionalization perpetuated)?

  2. Is there any legal precedent for such a person recovering damages?

DISCLAIMER: Though this is a real situation, I am not seeking legal advice. I am not now, nor will I ever be, a party to any legal action arising from this situation (since I am, unfortunately and reluctantly, an employee of the ICFDD in question).

2

My experience in researching a similar situation for a friend is that the only attorneys who would be interested in such a case, assuming the situation is actionable, are probate attorneys.
The personal injury attorneys my friend consulted weren’t even helpful enough to provide a referral to a probate attorney, and by the time a suitable attorney had been found, the SOL had expired.

3

Wow, how does a non-related person end up with guardianship anyway?

4

IAAL, but not in Illinois. I am not your lawyer, or his, and this is not legal advice.

I’m not sure how, under the facts you related, you would show the institutionalization was unjust. Certainly you’ve shown that the man in question didn’t like it, but you also say when he was living on his own he wasn’t keeping his house clean, eating well, or even paying his rent. And a judge declared him incompentent prior to appointing a guardian for him. So what’s the factual (not legal) argument that his placement in a group home was “unjust”? What a person of diminished capacity wants is not necessarily in his or her best interest. I’m not saying the situation is not far from ideal, and it may even be indefensible as you claim, but that doesn’t appear from your OP.

5

Well, IMHO, he wasn’t given an opportunity to remedy his situation. Had his guardian contacted some social services agencies in a nearby city (literally a 15-minute drive away), she could have had him in his own apartment with supports in place to prevent him from making the same mistakes he had been making. For example, a local agency provides services as a 3rd-party representative payee to manage individuals’ Social Security benefits, so he could have had someone manage his money for him and see that his rent was paid. Any number of other agencies could have sent case managers and/or care workers to his home daily to help him with cleaning, cooking, shopping, etc.

In short, the guardian bypassed a whole host of services available to her ward in favor of institutionalization (in the same city, I might add), simply because she felt that he needed to be institutionalized. I presented evidence, to both the guardian and to my superiors, that these services were available to him, that people with much lower IQ’s than his had lived in the community and had managed quite well. However, no one was interested in hearing it.

The biggest pisser for me, however, was that the guy never got a chance to make his own voice heard. Once he was declared incompetent, it was as if his fate was sealed and he was (and still is) at the mercy of his guardian for the rest of his life. He was never given a chance to plead his case before any court.

There’s also the fact that no reasonable person is going to conclude that a person with an IQ in the upper 60’s needs to live in the same facility as people with IQ’s in the low 20’s.

6

Wanna bet that this ‘administrator’ is paying herself hefty monthly fees from his funds for her ‘work’?

7

Well, the guy had no family, save for a sister who is worse off than he is (she lives in a nursing home - and deservedly so; she is of the sitting-around-and-drooling type). I guess this friend of the family somehow managed to convince a judge that she would be a better person to be his guardian than a representative of the Office of State Guardianship.

And FTR, it scares the piss out of me that I live in a state where a third-party can decide that they don’t like the way I’m living my life and convince a judge to lock me up in an institution because of it.

8

But isn’t that her call? I mean, isn’t that what being an incapacitated person’s guardian means? You have to decide what is in the best interests of the person you are taking care of. Again, this is not my area of law, but I would be very surprised if a guardian would be required to follow one of several reasonable options, so long as the option chosen was not unreasonable. Your last sentence makes it sound like you think the option of institutionalizing him was NOT reasonable, but I think that would be a hard argument to make.

9

My thoughts exactly.

10

Is there any of the 50 US states where this is not true? Or any of the countries of Europe, either?

How else could the legal system work to deal with people who may be in need of assistance?

11

Here in the U.K., there are all sorts of checks on a guardian’s behaviour. I am answerable to the Court every year and cannot personally benefit from guardianship. Are there no such checks in the US?

12

Actually, “don’t like the way I’m living my life,” is not the the standard for civil commitment.

http://www.minddisorders.com/Flu-Inv/Involuntary-hospitalization.html

In response to the OP, someone would have had to convince the judge by producing evidence and meeting the relevant burden of persuasion that the guy met these standards:

He’d have a right to appointed counsel. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=il&vol=app/2001/2000538&invol=3

So, without delving into all of the legal niceties, I’ll just point out:

  1. The judge is probably immune from suit.
  2. The appointed lawyer might or might not be liable for malpractice–if you can establish that he was negligent and his negligence proximately caused damages.
  3. You might be able to sue the guardian for malicious prosecution or abuse of process, but these cases are complicated and hard to win.
13

I’m not denying that the guy needed assistance. The issue I have is the way in which the assistance was given.

Essentially, a mostly-able adult was locked in a nursing home with vastly-less-able adults and kept there for two years, in spite of the recommendations of his psychiatrist that he needed a less-restrictive environment.

14

I am not your attorney or anyone else’s here. I don’t know Illinois law, have never been to Illinois and will probably never set foot in Illinois. This is not legal advice and under no circumstances should this be considered legal advice. Go see a lawyer in your state to find out the law in your state.

I’ve been involved in three guardianship and conservator cases. There is very little danger of someone who doesn’t need help being declared incapacitated. If anything, it is far more likely that nothing will be done. The standard to have someone declared is by clear and convincing evidence.

In two of the cases I worked, the guardian and conservator was a parent of the incapacitated person. In one, a woman under the age of forty had a stroke and was in a coma with very little hope of recovery. That one was resolved fairly quickly. The second one was a mentally handicapped boy who was old enough that his parents needed to be appointed. o take care of him and when necessary make medical decisions for him and check him out of the psychiatric ward.

I don’t know how it works in Illinois, but in VA, the court will appoint a guardian ad litem to represent the interests of the incapacitated person. The guardian will meet with them, talk to them and ask them if they want a conservator. The guardian ad litem will prepare a report after having met with the person, and the person’s medical care provider. They will talk to the physicians and will review any necessary reports.

If they don’t, they will have an attorney appointed. One of the cases I worked on had this happen. In this case, an elderly woman with dementia and Alzheimers was in a similar situation to your friend’s. She owned her own home, but bills weren’t getting paid on time, and only with the neighbors helping her, she was eating very poorly and the house was a mess. There was 8 years worth of mail in the kitchen. The house was really frightening and even pictures couldn’t capture how bad it was.

Additionally, in every case, the judge will want to see a report prepared by a doctor on the incapacitated person. These reports are usually on a standard form and the judges tend to be familiar with the requirements. The psychiatrist or physician will have to agree that the person is incapacitated and is incapable of living on their own. If the matter is contested, the judge will want testimony from the medical expert and will most likely in my experience ask questions to satisfy any questions they themselves may have.

Once appointed, the person has to submit an annual report to the department of social services. For their role as conservator, they have to submit an inventory and annual accountings to someone appointed by the Court( in VA, it is the Commissioner of Accounts). These reports are incredibly detailed and they require bank statements, copies of checks, and are rather closely monitored. They are a pain in the ass to prepare.

The guardian is allowed compensation but it isn’t all that much and this is very closely monitored by the Commissioner of Accounts. The conservator is entitled to compensation, but again it is a very small percentage of the Estate of the Incapacitated person. I personally wouldn’t agree to be Guardian or Conservator for someone unless it was a loved one, because the money isn’t worth it for the amount of time you will have to put in and the paperwork involved.