Who Can Take the Car Keys away from An Elderly Family Member Who Has Become An Accident-Waiting-To-Happen On The Road?

Happy Senior Man Driving his car

One of the most difficult conversations to have is with a parent, grandparent or elderly spouse who has – through aging or age-related losses – become a danger to others on the road is the “give-up-the-car-keys” conversation. In the U.S.A., we have a deep emotional attachment to driving.  Driving equals freedom. When the elderly consider this loss of independence, particularly in rural and sub-urban areas where good public transportation is lacking, they will resist giving up the keys even when they recognize their own physical or mental barriers to safe driving (which they often don’t). When this happens, what is a son/daughter/spouse to do?

First, let’s be clear on the legal duty.  The family member of an elderly person who may be unfit to drive has no legal duty – or even the right — to take the keys away (unless they have legal guardianship of the elderly person).  But family members have the right – but not the duty — to report the elderly family member’s suspected inability to safely drive to the Department of Motor Vehicles (DMV). From there, DMV will take over.

But should you snitch on grandma?

Some family members of elderly drivers hope to get the elderly loved one’s physician to do the dirty work for them.  They bring mom or dad in to his or her physician, who may examine the patient and determine that indeed they are not fit to drive.  But even if the doctor finds the patient to be blind as a bat, or unable to move his arms, or suffering from severe Alzheimer’s, the physician cannot report this to the DMV without his patient’s consent. The patient-physician confidentiality rule prohibits the doctor from disclosing this information to anyone without his patient’s consent.   The physician can report it only with the patient’s consent, but many patients who should not be driving won’t consent.

On the other hand, the physician must warn a patient that he or she should not be driving, and should try to convince the patient to allow the physician to call the DMV.  The physician is a good family resource to help convince the elderly driver it is time to “give it up”.  But again, the physician cannot make that call to the DMV without the patient’s consent.

Let’s be clear: Almost anyone EXCEPT the driver’s physician can report a suspected “lack of qualification to drive” of any driver to the DMV, but generally the only person who is required to report this to the DMV is the person the least likely to do so:  the elderly driver himself!

So if the elderly loved one refuses to report him or herself, or to give up his or her keys, what is the family to do?  It’s a tough decision for a son, daughter or spouse to make:  Do you “blow in” your beloved but incapable driver into the DMV?  Do you have an ethical duty – if not a legal one – to protect the public from this aging roadway menace?

In our view, yes, you have that moral obligation, even though there is no corresponding legal duty to do so.

Once you screw up the courage and do it, New York’s Vehicle & Traffic Law 506 provides that, if the DMV has “reasonable grounds to believe that a person holding a license . . . is not qualified to drive a motor vehicle, the commissioner may require such person to submit to an examination to determine his qualification”.

One more thing to know:  Although family members cannot be held liable for injuries caused by the elderly driver who drives his or her own car, family members — or anyone else — can be held liable for giving permissive use of their car to the elderly driver.

Thank you for protecting all of us – and your elderly family loved one, too — from harm.

Keep safe!

Mike Bersani

Email me at:  bersani@michaels-smolak.com     I’d love to hear from you!

michaels-smolak.com
Syracuse NY Automobile Injury Lawyers
Michaels & Smolak, P.C.

315-253-3293

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