State law protects elderly from being taken from home

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Evelyn Poynter's home might be cluttered and even "deplorable," as police described it.

But if the 86-year-old Hill District woman can effectively evaluate information, manage her own financial resources and meet essential health needs, then, under the law, she's allowed to continue living that way.

No matter what her family might want to do about it.

Under Pennsylvania law, there is a high burden of proof to have someone declared to be "incapacitated," and then have a guardian appointed.

And just being stubborn, or even miserable, does not meet the burden.

For Ms. Poynter, who police say was duct-taped and kidnapped on Sunday by her 72-year-old sister and that woman's 76-year-old boyfriend, it appears she would not meet the burden.

After Shaker Heights, Ohio, police arrested Laura Stewart and Earl Cross, Ms. Poynter was taken to an Ohio hospital.

She was evaluated and released with a clean bill of health, said Pittsburgh police Lt. Kevin Kraus.

"She seemed lucid, cognizant of her surroundings," he said. "She seemed OK."

He described her home as messy, but not "anything worse than a lot of people live in."

Ms. Stewart has said they were trying to get Ms. Poynter, a retired pharmacist, out of her "squalid" apartment.

She and Mr. Cross remain in custody at the Shaker Heights police department's jail. They've waived extradition on charges of kidnapping, unlawful restraint, false imprisonment, simple assault and conspiracy, and will be brought back to Pittsburgh soon.

"Even if those two had the best of intentions, you certainly don't bind someone with duct tape and force them to pee in a plastic container for eight hours," Lt. Kraus said. "There are legal options in place to deal with family issues like this. Duct-taping an 86-year-old woman and driving around for eight hours is not one of them."

In Pennsylvania, an individual has the right to self-determine, as long as they're not incapacitated, said Kurt Emmerling, bureau chief for advocacy protection and care management for the Allegheny County Area Agency on Aging.

Even if that person is at-risk, that's still the case, he continued, as long as there's no imminent danger.

"Until a person's determined by a court to be incapacitated, everybody's allowed to make bad decisions," said Thomas J. Dempsey Jr., an attorney who does a lot of guardianship work.

The law changed from listing a person as "incompetent," to "incapacitated," in 1992, Mr. Dempsey said. It now follows a sliding scale, which means that courts will first look at the least restrictive alternative to a guardianship that is available, which could include issuing a power of attorney.

If the Area Agency on Aging receives a complaint that warrants attention from its Protective Services division, investigators could make a determination that a person should be removed.

"If it's bad enough -- and it's got to be pretty bad -- they could start a guardianship proceeding," Mr. Dempsey said.

Mr. Emmerling said that his agency has approximately 190 public guardianship cases ongoing.

But, generally, the agency's mission is to help the elderly remain in their homes and age well.

That's why it offers services like bathing, light housekeeping or even helping an elderly person get dressed.

"That would sound a lot better to me," Mr. Emmerling said. "The selling point is not to remove you from your house."

Though the way that Ms. Poynter was taken from her home was unusual, Mr. Dempsey said, having family members remove an elderly person is not that uncommon.

"It happens a lot more frequently than people think," he said.

He had a case where two sisters were angry at their brother, so the women removed their mother and took her against her will to New England.

"They just snatched her," he said.

He's also had patients pulled out of nursing homes and moved a few counties away.

"Most times, it's money," Mr. Dempsey said. "They want to take their money."

Often, the police don't get involved in those kinds of situations, he continued. But in Ms. Poynter's case, he praised their quick reaction.

The fastest emergency petition Mr. Dempsey ever heard argued in Allegheny County Orphan's Court was 45 minutes. Typically, though, an uncontested, non-emergency guardianship can take 35 to 45 days.

The burden is on the petitioner to show the court by "clear and convincing evidence," that the person is incapacitated.

"The presumption is that you have capacity," Mr. Dempsey said. "Just like you're presumed to be innocent."

Like in a criminal case, the elderly person also has the right to have an attorney, and if she can't afford one, the court will appoint one.

Ms. Poynter's case has been referred to the Area Agency on Aging, said Lt. Kraus. What services she might be offered -- or even if she will accept them -- is unknown.

"It's her squalor," Mr. Dempsey said. "She wants to be there."

Anyone with concerns about a person older than 60 can contact the Area Agency on Agency's senior help line at 412-350-5460, to get information on local services and resources. For suspicions that a person is being harmed, call 412-350-6905, or 1-800-344-4319.


Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.


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