Publications

Associations Must Deal With 'Failing Residents'

Global demographic studies confirm a dramatic shift in the emerging predominance of certain age groups, specifically, older citizens. Notwithstanding dramatic advances in medical science, large numbers of Americans are still physically fit but mentally incapable of taking care of themselves. More and more associations are being faced with the problem of dealing with "failing residents."

Clearly this issue goes beyond mere legal remedies, as there are social and moral implications facing a board when they are faced with having to deal with a resident that poses a danger to his or herself as well as the other residents of a building. On the one hand, the board members are sympathetic; on the other hand, as the custodian of the fates of all other residents, a board cannot afford to refrain from taking immediate action.

Therefore, a board of directors needs to become proactive, learn the legal implications of such a situation and have a plan in place, particularly in a community that has a large number of older residents. The board, the property manager, the association’s attorney and the members of the community all have a stake in making sure that these situations are addressed quickly.

The board needs to consider the following:

The association should maintain a file on all residents with next of kin and emergency phone numbers available. Questionnaires should be filled out by each new purchaser and periodically updated for all others. (This is not only essential for health and safety concerns, the board may need this for delinquency and covenant enforcement matters.)
Members of the community should be made aware of the obligation to look out for their neighbors. Telltale signs of indifference, unprovoked hostility, declining physical condition, lack of capacity, deteriorating personal hygiene, should be reported to the board for investigation purposes.
Residents should be aware of gas smells, excessive water use, flooding incidents, unretrieved mail and newspapers, garbage accumulation and television volume way beyond normal levels at odd hours.

Upon becoming aware of these types of behaviors, the board must remember that it is legally charged with administering and maintaining the common property. The board must take all of the necessary steps to preserve the property and protect the health and safety of the residents. Once becoming aware that a resident is in distress, the board should then take the following steps:

Notify the next of kin and get them involved. Unfortunately, a number of people think a condominium is a care provider in lieu of family, and are unwilling to accept responsibility for their family members. Most people will consider in-home or outpatient care or relocating the family member, but there are people who do not want to be bothered.

If the above is not effective, contact the local police and report any incidents to determine whether there is a community service department that handles these type of situations.

Contact a social service agency. For example, in suburban Cook County, the Suburban Area Agency on Aging can refer your resident for an in-home assessment. In other areas, contact the village or township.

If all else fails, the association may have to file an action for an injunction against the unit owner, have a guardian appointed by the court and possibly seek to have the individual vacate the property. Depending upon the level (if any) of family involvement and the economic status of the person, the court will act accordingly. Although it may sound heartless, the board must protect the property and its residents, and treat this situation just like any other violation of the covenants when the disabled resident’s family refuses to act or there is no other responsible person.

Just as the board of directors is not the "landlord," it is also not the "care giver" for association residents. None of us will even know when we are no longer capable of taking care of ourselves. Anyone would want someone to step in rather than cause harm to others. When people are no longer capable of taking care of themselves, it is a tragedy, but for a board to ignore the situation and have it result in property damage, injury or even death of a resident, would be a catastrophe. By having a plan of action in place and acting diligently, the board can best serve the property and all residents.

The board of directors can proceed in a humane and sympathetic fashion and still fulfill its legal obligations.