This is a partial transcript from "The O'Reilly Factor," March 1, 2005, that has been edited for clarity.
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BILL O'REILLY, HOST: In the "Personal Story" segment tonight, another tragedy for the Kennedy family. Congressman Patrick Kennedy (search) of Rhode Island has announced that his mother and the former wife of his father, Senator Edward Kennedy, has been placed under guardianship because of alcoholism.
Joan Kennedy has suffered from that for years and joins millions of other Americans who have the same condition. The question: What can you do if alcoholism strikes your family?
Joining us now from Boston are attorneys Hugh Ferguson and Annette Baker.
You know, millions and millions of families are in this predicament where they have parents or even children who are so out of control because of addiction or even a medical disease that they can't run their own affairs, Ms. Baker. So what are people supposed to do? What should they do?
ANNETTE BAKER, FAMILY LAW ATTORNEY: Well, I think it's important to be pro-active, and, if you have parents in that instance that are aging, it's important to have certain documents in place, very basic documents that any family law attorney can help prepare.
Those would be a durable power of attorney (search) which would appoint someone to handle your financial affairs as well as a health-care proxy (search) which establishes somebody to stand in your place to make medical decisions.
Both of these documents can be put in place immediately or put in place and language included...
O'REILLY: But there's often — there's often resistance to do that. You know, I mean, you — this woman, Joan Kennedy — and I feel very, very sorry for her, used to be a beautiful woman, 69 years old now, has been an alcoholic for decades.
Apparently, Mr. Ferguson, she's out of control, and now her children have to take all of her power away and regulate her life. When does it come to that point, sir?
HUGH FERGUSON, FAMILY LAW ATTORNEY: Well, I think what happens is that when it does come to that point, somebody needs to make a decision to intervene in the family. I don't know — and every case, of course, would be different — when it would be time to intervene. The courts are there for that, and...
O'REILLY: But there's a lot of resistance...
FERGUSON: ... it's...
O'REILLY: There's a lot of resistance on the part of the people usually. They don't — like Ms. Baker said, well, they sign the paper, get the — yes, that's nice, but a lot of them won't do it. A lot of them are...
O'REILLY: You know, they're suspicious. They think you're trying to take their house away or their money or their freedom away, you know.
FERGUSON: Right. And what happens is that the court has the guardianship procedure where the family members can petition the court, and with the assistance of a physician who has interviewed and seen the patient within the prior 30 days, they can file for the guardianship and report...
O'REILLY: What do they have to show? What do they have to — the physician has to come in and say what, that she's drunk every day and that she's a danger to herself and others?
FERGUSON: The physician would have to say that she's not competent to make the decisions on a day-to-day basis, and, based on that, then the court would make a decision, if they would award the guardianship.
O'REILLY: All right. Ms. Baker, now, a lot of times, people manipulate elderly parents because they want inheritances and all this kind of stuff, so the court's got to be very skeptical of some of these claims, right?
BAKER: Well, that's right, and the court has very strict oversight and supervision of guardianships that it issues. Typically, the parties are ordered — the guardians are ordered to return to court. The time frame is up to the judge in a particular case.
I believe, in the Kennedy case, it's every six months they're coming back, and the court's going to carefully scrutinize all the decisions that are being made on behalf of this ward. So there are protections in place. Things certainly fall through the cracks.
In Massachusetts — or, actually, I think it's the U.S. Senate's Committee on Aging has a subcommittee on guardianships, and they're looking into establishing better tracking procedures so that the courts are properly stacked...
O'REILLY: Well, with so many — you know, you guys are putting a happy face on it. With so many people in this position, it's almost impossible to do vigilant oversight on all of them.
Look, Patrick Kennedy gets up, and he's — this is the key. He goes, "We will continue to do whatever is necessary to protect our mother and make certain she receives necessary treatment."
Protect the mother from what? Well, I guess she doesn't want — they don't want her to hurt herself or others, right?
FERGUSON: Well, that's exactly right.
O'REILLY: Go ahead.
FERGUSON: I think that they — I think they don't — they want to make sure that the mother does not harm herself. If she's continuing to abuse substances and continues to drive, she could harm herself. She could harm someone else.
O'REILLY: Yes, there you go. Can you get a protectionship against a child as well? Can you do that?
FERGUSON: Well, certainly.
O'REILLY: So you need a protectionship against anybody that's out of control?
FERGUSON: You absolutely can.
BAKER: There has to be...
O'REILLY: Go ahead, Ms. Baker.
BAKER: Well, there has to be a mental illness that is the reason for the behavior.
O'REILLY: Is addiction — is addiction a mental illness?
BAKER: If the doctor is willing to certify —in the medical certificate that has to be filed with the guardianship petition —that that person suffers from mental illness, which is evident in their substance abuse or alcohol abuse, then yes.
O'REILLY: All right. So the doctor — the doctor is the key to making these kinds of decisions, and the court just follows them out.
All right, counselors. Thanks very much.
Again, we sympathize with Joan Kennedy and her family. A very difficult thing to go through. Millions of Americans are going through it right now. We hope we've helped you out.
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