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As the population gets older and people live longer, process servers are finding an increase for service involving the elderly. According to the Alzheimer’s Association, 1 in 10 people over age 65 and nearly half over age 85 have Alzheimer’s disease – which affects their memory, judgment, and behavior. About a third of all senior citizens have disabilities that cause serious difficulty in walking, hearing and seeing, according to the U.S. Census Bureau.
Seniors may require protection from both themselves and parties who do not have their best interests in mind, and many states have laws to safeguard their health and assets if there are physical or mental health issues. Those affected with dementia are rarely defendants and more often have to be notified about legal proceedings that affect them. Laws can vary by state. Some have specific rules similar to those for minors.
“Nothing in New York law that I know of specifically says if someone is over a certain age they have to be served in a certain way,” said Larry Yellon of the National Association of Professional Process Servers. “When it’s a special proceeding appointed by the court to manage the affairs of that party, that person has to be served — even though there are other parties being simultaneously served to protect that party’s interest.”
In California, if a copy of a summons cannot be delivered in person, it can be served at their residence “in the presence of a competent member of the household or a person apparently in charge,” according to state law.
If someone wanted to establish custody of a person with dementia, they can have a special proceeding, but the elderly person has to be served in person to make the proceeding effective. “That section of law is used extremely often in those situations, like when a relative sees that person is suffering and they want to be appointed to manage their affairs. All the parties who are related get notice, so they have a right to object,” Yellon said.
Whether or not you’re serving a senior, you should never be deceptive by attempting service under false pretenses or violating state laws – including pretending to be a police officer or government official.
When you approach someone who may be suffering from dementia, the Alzheimer’s Association recommends you explain why you’re there, speak slowly in a low-pitched, non-threatening voice, using short simple words and asking “yes” and “no” questions.
“Loudness can convey anger. Do not assume the person is hearing-impaired,” the association advises. “Ask one question at a time – allowing plenty of time for response. If necessary, repeat your question using the exact wording. People with dementia may only grasp a part of the question at a time.” The association also states confronting or correcting someone with dementia is unlikely to accomplish anything productive.
One of the earliest signs that spouses and family members notice about their loved one is the inability to handle finances. The elderly are more susceptible to falling prey to financial scams. Poor financial choices made by those with dementia can result in a significant amount of debt. Dementia does not absolve debt, though it’s likely a creditor will reconsider if you locate the person getting served in assisted living. For making decisions for an elderly person, Yellon said it’s “hugely important” courts have guardianship proceedings for their care.
Dementia care is not expensive, but it is also mentally and physically demanding on the caretakers. When the disease becomes too advanced for a loved one to be cared for to care for at home, individuals living with dementia need to move into assisted or supportive living facilities and later nursing homes to receive proper care. However, if they are resistant, which many dementia patients are, a guardianship will need to be in place to give control to the caretaker.
“Process servers have to be involved in that. It’s mandatory [in New York] that ‘proposed conservatee’ is the title that they give to the party being served who is probably elderly but more important [the court] will spell out how they have to be served and by what day,” Yellon said. “This way people can’t come in and start taking their money – legally. Many unscrupulous parties will get mom or dad to sign a power of attorney without this proceeding to take advantage of them.”
Some facilities will have an employee, such as the head of social work, come in to witness the service to help confirm the validity of the service. Ultimately, Yellon explained that at its core, serving an individual with dementia is not ideal. “It’s really a poor form of service, because many times they don’t know they are being served,” Yellon said.
But by federal law, in nursing homes that accept federal Medicare or Medicaid funding, residents have a right to receive visitors any time they like, regardless of whether the nursing home has posted visitation hours. The nursing home facility is the resident’s home, and as such, the resident may have guests at any time. And for instances in which a guardianship proceeding will take place, the service of process must occur, despite the condition of that individual’s current mental faculties.
Like with service to anyone of any age, the legality of service depends on which state the papers are being served in or are coming from. This is also an important reason why a process server is needed for these situations. In most states, you can serve anyone anywhere at anytime, but some prohibit serving someone at their residence on Sundays or on a holiday, and a professional is aware of such regulations. Be sure to check your state’s laws and regulations regarding civil process service before attempting service on an elderly individual with dementia.
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