By David Swedelson and Sandra Gottlieb, Condo Lawyers and HOA Attorneys, Senior Partners at SwedelsonGottlieb
You may not have noticed this, but it is a fact that the United States has a large and growing population of senior citizens. Between 2000 and 2050, The number of older people is projected to increase by 135%. And the population of people 85 and over is projected to increase by 350%. In fact, the proportion of the population that is 85 and older will increase from 1.6% in 2000 to 4.8% in 2050. The aging of our population will place additional pressure on healthcare facilities and support programs for older people. This will also place some pressure on community association (mostly condominiums and stock cooperatives) boards and management.
As many boards and managers have already come to realize, for one reason or another, older people are deciding to remain in their condominium units rather than move into senior assisted living facilities. Many call this “aging in place,” which simply means that these seniors are choosing to remain in their own homes rather than move into an assisted living facility. We are now finding that many seniors are moving into their units and remaining in place for too long. Many bought their condos when they were much younger and did not plan for the time when they were too old and unable to function without assistance. And in many cases these seniors do not have family or other support to help them. Many seniors are just not able to deal with the fact that they cannot effectively care for themselves any longer. In some cases, they have waited too long, and their psychological or physical ailments have made it difficult for them to make a change. And as a result, they turn to their condo association for help when they get lost or forget that they have left the tub water running, for example (and there are many other examples as well).
What we have found is that many of the seniors have no family or at least no family that is able and willing to assist them. In some cases, these seniors have alienated family members. In other cases, the family members do not live in the area or are just unwilling to get involved. Sad, but true!
So what is a condo association board of directors to do when they find Harry wandering the halls, unable to determine where he lives? Or what about Sally, who still likes to cook, but forgets to turn the stove off? Or Irving, who, over the last several years, has gotten into the habit of hoarding, and his hoarding collection has consumed every square inch of his unit so that he is now barely able to maneuver in his unit and he is sleeping in his kitchen, in a sleeping bag, on the floor? Worse yet, he is unable to take the trash out or clean his unit, and that has led to an infestation of rodents and insects. Sad, but this happens.
Obviously, the condominium association has an interest in ensuring that these seniors are able to care for themselves so that they don’t create a burden for management or the board or an unhealthy or unsafe situation for themselves and their neighbors. Frequently, the association’s management is brought into the situation due to many complaints they receive about the owner’s conduct and less frequently by the senior owner/resident who is looking for help.
For the board of directors and management, these situations are troublesome because dealing with the seniors can be problematic, as well as time-consuming. They need help but may be unwilling to accept help from the association to assist with their mobility or even the impact of their hoarding.
There may be some solutions. In preparing this post, we came across a 2008 article that was published in the LA Times: Resources for Those ‘Aging in Place.’
Often, seniors are unable to take advantage of these resources. They’re just not able to care for themselves any longer and in many cases are not cognizant of their limitations. In dealing with one of these senior situations involving an elderly gentleman who had a hoarding habit that led to mice infestation, it became increasingly clear that he was not able to care for himself. This resulted in creating a liability for the association. Working with the association, we learned about the Public Guardian, which is part of most California counties’ departments of mental health.
According to one website, the Public Guardian has been named by the Court as conservator for thousands of persons who are physically or mentally disabled. These individuals cannot care for themselves without help. When such a person is brought to the attention of the Public Guardian, an investigation is made to determine whether friends or family are able and willing to act in the disabled person’s best interests. If not, the Public Guardian petitions the Court to be named conservator, and the disabled person becomes the conservatee.
We spoke with a representative from The Public Guardian’s office (in Los Angeles). We learned that under the provisions of the Probate Code, the Public Guardian may be appointed conservator to protect and care for a person such as a senior who is unable to care for themself and to administer the estate of those who, without assistance, cannot provide for the basic needs of food, shelter, or clothing or are unable to resist fraud or undue influence.
The Public Guardian may also be appointed for persons who, as set forth in the Welfare and Institutions Code, are considered gravely disabled (unable to provide for food, shelter, or clothing by reason of a mental disorder) and who are unwilling or unable to accept psychiatric treatment voluntarily.
Probate referrals may be made by any individual or agency aware of the person being referred: relatives, friends, attorneys, neighbors, public or private social work or health agencies, or offices of elected officials.
As Conservator of the Estate, the Public Guardian is responsible for the “prudent use of money and property” belonging to the conservatee. Conceivably, this could include issues such as hoarding, forgetting where they live, locking themselves out, leaving the stove on, etc.
Many of our larger senior community association clients have “Public Guardian” type social workers working on either their staff or the staff of their managing agent. If your association does not have or offer this service, and you are experiencing issues with a senior who is in need of assistance with their basic care, social skills and health issues, find out if your county has a Public Guardian program to help. The fact is that this issue is not going away and will be increasing in the future. It is best that community associations get themselves prepared.