Wednesday, October 4, 2017
New Yorker: Article Focuses on Clark County Nevada to Demonstrate Systemic Failures under State Guardianships
The New Yorker Magazine offers "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:
Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights.
Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.
In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”
There are fundamental issues at the heart of this kind of history. Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself. But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.
My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly.
October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 2, 2017
The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds. It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."
Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners. A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law. The mother-in-law later challenged the transaction as contrary to her understanding and intention.
Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts. They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.
As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.
Not so fast. Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process.
October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, October 1, 2017
Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017. Not a violent contact and apparently not one involving physical or mental injury. But clothing was removed and fluids were later documented. Now residents are being transferred and more than 70 employees will reportedly be laid off.
As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities. A criminal investigation found no grounds for prosecution. A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports. The actual closure action was made voluntarily by Genesis.
Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:
- Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"?
- How far must a LTC provider go to prevent intimate contact between residents?
- After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
- How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?
- Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?
October 1, 2017 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 18, 2017
I've heard a few times about concerns regarding doctors in their 70s and 80s who continue to practice medicine. The implication is that their age might somehow make them less fit to practice medicine. I've also heard the same concerns expressed about attorneys. Do we concern ourselves with professional fitness just based on age for any other profession? Not for us law profs. So I was interested in reading this article from the Philadelphia Inquirer, More doctors are practicing past age 70. Is that safe for patients?
The article opens with the story of one pediatrician who at 76, was required by his hospital to be evaluated. This hospital "is among the growing number of hospitals that are reevaluating doctors simply because they are old. Their age puts them at higher risk for physical and cognitive changes that could imperil patients." Other doctors quoted in the article oppose such actions, arguing the lack of "scientific evidence correlating such test results with physician performance. They have, however, grudgingly accepted physical testing and peer review." The article notes a trend of sorts on this issue
In 2015, the American Medical Association called for guidelines to evaluate aging doctors, although it did not specify what they should be. It also said doctors have a “professional duty” to self-assess. The American College of Surgeons last year said surgeons should voluntarily undergo testing by their personal physicians and disclose any problems to their employers.
There are likely more older physicians still practicing then you might think. To some extent, the article notes, that taking action now internally is preemptive. There's a two-day challenging testing program, "[t]he Aging Surgeon Program, which is available to doctors from anywhere, involves extensive cognitive and physical testing as well as evaluation of balance, reaction time, and fine motor skills." Penn Medicine has implemented cognitive testing for all of their doctors who are 70 or older. The article looks at what other medical facilities in the area are doing.
I suspect this is an issue we will hear more about in the future.
In a case with sad facts, the lower court in Smith v. Smith certified a question to the Florida Supreme court as follows:
"Where the fundamental right of marry has not been removed from a ward [under state guardianship law], does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?"
During the guardianship proceeding at issue, apparently the original court had not specifically addressed the right to marry. In light of that fact, in its ruling on August 31, 2017, the Florida Supreme Court answered a slightly different issue, because it viewed the "right to marry" as being tied to the "right to contract," which had been expressly removed from the ward.
The Florida Supreme Court ruled that "where the right to contract has been removed [under Florida guardianship law], the ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect."
Counsel representing the wife of the incapacitated "husband," argued that, in effect, such ratification had already happened, during a proceeding where the guardianship judge had made comments treating the marriage as "fact." The Supreme Court disagreed:
Although the invalid marriage between Glenda and Alan is capable of ratification under [Florida law], it is unlikely that the Legislature intended for “court approval” to consist merely of acknowledging the existence of a marriage certificate and commenting on the alleged marriage, without issuing an order ratifying the marriage or conducting a hearing to verify that the ward understands the marriage contract, desires the marriage, and that the relationship is not exploitative. Therefore, we conclude the guardianship court's statements here were not sufficient to approve the marriage. However, the parties are not foreclosed from seeking court approval based on our decision today.
The ward in the Smith case was not alleged to be older or elderly; rather, the determination of his lack of legal capacity followed a head injury in a car accident. Recognizing the larger implications about validity of a marriage occurring during a guardianship, however, the Real Property Probate Section and the Elder Law Section of the Florida Bar and the Florida chapter of the National Association of Elder Law Attorneys submitted amicus briefs, arguing generally in favor of a ward's right to marry and urging the Supreme Court to approve post-marriage ratification by the guardianship court.
Wednesday, September 6, 2017
Recently I heard an account of an especially disturbing fact pattern, and I suspect it is all too common. A loan company called the "employer" of a borrower, superficially to ask to speak to the employee. When the employer said "this isn't [the employee's] shift time," the caller said, "Well, then I'll talk to you. Your employee is X dollars in debt to our company and hasn't paid. Would you like to make a payment on his account today by phone to help him out?"
The "employer" in this case is the care-needing client. Apparently the client has dementia and has enough understanding to be frightened by the call --"if I don't pay, I could lose my helper" -- but not enough to truly understand what happened.
Let's be clear. Such a communication appears to be a violation of the federal Fair Debt Collection Practices Act on several levels. State debt collection laws may be even more relevant to the improper conduct involved here. For example, as a starting place federal law governing "communication in connection with debt collection" provides at 15 U.S.C. Section 1692(c):
(b) Communication with third parties
Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
The employee in this situation can and should immediately instruct any debt collector not to call his or her employer or client. (The employee also has the right to demand all calls cease, even to the employee's own home numbers and to direct that any further communications be in writing only.) Further, by releasing personal details about the employee's debt to the employer, the debt collector would appear to have triggered substantial financial penalties for the loan company, with sanctions of up to $1,000 per violation, as explained here and here and here. In the context of a caregiver's workplace, this entire scenario seems uniquely abusive to both employer and employee. A home telephone is often a key lifeline for older adults and disabled persons. They do not need another reason to fear calls from manipulative people.
Tuesday, September 5, 2017
One of my first "real" jobs after college was working in Washington D.C. for a U.S. Senator who regularly attracted the attention of the press, including reporter Sally Quinn and her husband and executive editor Ben Bradlee at the Washington Post. I found it especially poignant to read Sally's newly published account of her husband's last years. She writes with great candor about the small and large changes she observed, and the drama of good days and bad days "at the office," in a very public place. Here's an excerpt:
In 2011, a reporter called Ben at the Post, where he maintained an office as a vice president at large, to interview him about something sensitive that had happened at the paper. Ben was very forthcoming — in fact, too forthcoming. He told the reporter much more than he should have, much more than he knew. After the piece came out, I went to Washington Post Company Chairman Don Graham and suggested that it might be time for Ben to stop going to the Post. Don, the kindest human being on the planet, refused to even consider it. However, we did work out a plan. All the secretaries and assistants on the floor were advised never to put a call through to Ben without checking with his secretary Carol or Don or me. Everyone was told to turn down all interview requests. Ben never knew about it.
It had been five years since he had been diagnosed with early-stage dementia, but few outside the family knew it. Almost every day he went down to the Post cafeteria for lunch and would be immediately surrounded by a coterie of reporters and admirers, and that seemed to perk him up. There was always a group conversation and as long as Ben gave somebody the finger or told somebody to “f--- off,” people didn’t seem to notice the forgetfulness that much.
I organized a lunch group at the Madison hotel across from the Post, where I had a running tab. Carol had a sign-up sheet and up to five people could join. It was always full. We called it “Tuesdays with Ben.”
Eventually it became too much to hide Ben Bradlee's diagnosis from friends and work associates:
The A-word is a killer, which is why I always said “dementia,” even though it was never clear which [type] he had. Somehow Alzheimer’s sounds like something one could catch. Dementia sounds tamer, more like gentle aging. At dinners, I would ask my friends to seat me next to Ben so that I could protect him. I’d make sure the person on his other side was aware of Ben’s situation.
The full piece, which is an excerpt from Sally's forthcoming book, Finding Magic: A Spiritual Memoir, is carried in this week's Washington Post and is well worth reading. It is a complex portrait of a hard-driving man and his loving wife and friends.
Thursday, August 31, 2017
USA Today ran a story, Can this eye scan detect Alzheimer's years in advance? This short article explains that according to scientists "early indicators of Alzheimer's disease exist within our eyes, meaning a non-invasive eye scan could tip us off to Alzheimer's years before symptoms occur... It turns out the disease affects the retina — the back of the eye — similarly to how it affects the brain, notes neuroscience investigators at Cedars-Sinai Medical Center in California. Through a high-definition eye scan, the researchers found they could see buildup of toxic proteins, which are indicative of Alzheimer's." The study on which this article is based was published in the Journal of Clinic Investigation. Retinal amyloid pathology and proof-of-concept imaging trial in Alzheimer’s disease is downloadable as a pdf by clicking here. The 19 page article offers this intriguing statement. "Such retinal amyloid imaging technology, capable of detecting discrete deposits at high resolution in the CNS, may present a sensitive yet inexpensive tool for screening populations at risk for AD, assessing disease progression, and monitoring response to therapy." (Warning-there are a lot of detailed photos of eyes in this article).
Monday, August 28, 2017
From Oregon, known for its "death with dignity" laws, the dilemma facing a couple who are learning the limits of the laws:
Bill Harris is blunt: For more than a year, he has been trying to help his wife die.
The 75-year-old retired tech worker says it’s his duty to Nora Harris, his spouse of nearly four decades, who was diagnosed with early-onset Alzheimer’s disease in 2009.
“Let me be honest: Yes. It’s what she wanted,” he said. “I want her to pass. I want her to end her suffering.”
Nora Harris, 64, a former librarian, signed an advance directive after her diagnosis to prevent her life from being prolonged when her disease got worse. Now, her husband said, she’s being kept alive with assisted eating and drinking against her stated wishes.
For more of the story, read "Despite Advance Directive, Dementia Patient Denied Last Wish, Says Spouse."
August 28, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, August 22, 2017
Mark your calendars for September 6, 2017 at 2:00 p.m. edt. DOJ's Elder Justice Initiative will be hosting another in its series of webinars on elder abuse. More information and registration for Financial Exploitation in the Context of Guardianships and Other Legal Arrangements will be available soon.
Update 8/28/2017: registration is now open!
August 22, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Friday, August 11, 2017
Here is another tragic news story for a man, age 82, "who had begun showing signs of dementia and would become 'disoriented at times.'"
On Aug. 2, nearly a month after he went missing, maintenance workers reported to fire authorities a discovery: a decomposed body in an elevator car in the parking garage. The body was soon identified as Komisarchik’s. . . .
At some point on or before July 6, Komisarchik stepped inside the parking garage elevator. For reasons that remain unclear, he struggled to get out.
So in an attempt to seek help, Komisarchik pushed the elevator’s emergency button — twice over the course of eight minutes, a Denver Fire Department spokesman told the Denver Post. But no one responded.
Electronic records show that the elevator’s emergency alarm was pressed at 9:09 p.m. and 9:17 p.m. on July 6, the day after Komisarchik was last spotted, according to KUSA. Pushing this emergency button should trigger an alert to an elevator monitoring group or the fire department. But during the time Komisarchik was in the elevator, the fire department received no emergency calls from that car, the Denver Post reported.
“Something is not right,” Capt. Greg Pixley, a Denver Fire Department spokesman, told the Denver Post.
For more details, read "He pushed an elevator's alarm button but no one came. . . ." from the Washington Post
Wednesday, August 9, 2017
The Washington Post carried a recent story by Samantha Schmidt on the tragedy that befell the Tarnowski family in Minnesota when Mary, age 78, and Ron, age 81, somehow wound up stranded with their car on a remote rural trail. Sadly, they both perished, with heat and dehydration likely factors in their deaths.
One element of the story has attracted a lot of reader attention -- the report that Ron Tarnowski, who had been his wife's primary caregiver for more than 35 years, was "showing signs of early-stage dementia" in recent years. Implications from this label raise questions for many.
From the article, a facebook page, and the obituary, it is apparent that the couple's two sons were very caring and attentive. One son had built them a home "adjacent to his own so he could keep an eye on them." That son's wife had given his mother a bath and cooked breakfast for the couple earlier on the day they went missing, and the fact that they were missing was reported the very same day. Despite the sons' attentiveness, and the all-out efforts of authorities and volunteers to locate the missing couple, the search lasted eight days.
I read with interest the comments to the story posted on-line at the Washington Post website. I expected there would be "flamers" and shaming, so typical of many on-line comment websites. But for the most part, the readers showed kindness and empathy, especially as they told their own stories of struggles to balance protection with respect, attempting to preserve autonomy of beloved family members who are aging.
Significantly, many readers addressed the potential for modern technology in the form of automated trackers on cars and cell phones to help avoid, if not completely prevent such a tragedy.
Friday, August 4, 2017
The Uniform Law Commissioners recently approved the new guardianship act. The prior act, the Uniform Guardianship & Protective Proceedings Act was approved in 1997. The new act, the Uniform Guardian, Conservatorship & Other Protective Arrangements Act was approved in mid-July at the ULC's 126th annual meeting. Terminology has changed with this new act, with the use of incapacitated person falling by the wayside. Instead, the act refers to "adult subject to guardianship" or adult subject to conservatorship" both of which are defined in Section 102. Less restrictive alternative now includes supported decision-making, along with other alternatives such as a health care or financial power of attorney or representative payee. More emphasis is put on protective arrangements (Article 5 of the Act) as an alternative to guardianship. Another version of the new act with a prefatory note and commentary will be available on the ULC website soon.
Wednesday, August 2, 2017
Clark County, Nevada has been at the center of serious allegations of abuse by court-appointed guardians, including "public" guardians, as we have reported here in the past. Most recently, the county was the site of a conviction and sentencing of a woman who was charged with theft from her "long-time companion," the incapacitated person she was appointed to protect.
Helen Natko was found guilty by a Las Vegas jury in April of theft and exploitation of a vulnerable person:
Natko raised suspicions when she transferred nearly $200,000 out of a joint account. Natko returned the money but that's when Del's daughter, Terri Black, tried to protect her father leading to a guardianship case.
"That began our 4 year odyssey of pain and sorrow that continues to this day for my family," says Terri. She says the most painful part was not having quality time with her father in his final days.
Although the prosecutor (and the protected person's family members) sought "prison time" following the conviction, ultimately the state court judge sentenced Natko to 5 years probation, a $10,000 fine and a bar on "gambling." Further, according to Las Vegas Contact 13 KTNV news reports, "she's disqualified to be a guardian under new laws passed" since the channel's investigation and news series exposed problems in the county's guardianship system.
For more see Contact 13: Guardian Sentenced to Probation. My thanks for the update from Rick Black, the son-in-law of the victim in this case. It's been a long haul for the family. Mr. Black commented, "We are satisfied with the [July 31, 2017] sentence. Although we wanted prison time, it wasn't in the statutes. Thanks to the many victim family members and advocates who came to support Terri [Rick's wife]."
Mr. Black is a volunteer with Americans Against Abusive Probate Guardianship (AAAPG), which was founded in Florida in 2013 by Sam J Sugar, M.D., in response to his own experiences in the Miami-Dade probate court.
My thanks to those who wrote to correct my earlier mistake in describing the history of AAAPG.
August 2, 2017 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Friday, July 28, 2017
Neuroscientist Lisa Genova PhD, author of the novel Still Alice (that, in turn, became the movie with Julianne Moore in the leading role), has an encouraging new piece on Ted Talk on what all of us can and should do now to reduce the risk of Alzheimer's or even slow the disease after diagnosis. As she says, "DNA alone does not determine whether you will be symptomatic for Alzheimer's." It is one of a multi-part feature on Ted Talk addressing various "Prevention" topics. Here's and NPR link to the 14 minute podcast for Lisa's piece, "What You Can Do to Prevent Alzheimer's?"
Correction: My thanks to the readers who caught my typo -- it's "Still Alice," not Still Alive, for the title to the book and movie I've linked here!
Wednesday, July 26, 2017
Good news for all of us! The July 2017 issue of Today's Research on Aging from the Population Reference Bureau reports a proportional decline in dementia. Dementia Trends: Implications for an Aging America explains that
While the absolute number of older Americans with dementia is increasing, the proportion of the population with dementia may have fallen over the past 25 years, according to a recent U.S. study (Langa et al. 2017). Researchers say this downward trend may be the result of better brain health—possibly related to higher levels of education and more aggressive treatment of cardiovascular risk factors such as high blood pressure and diabetes.
After discussing the research, the research report also notes this
The decline in dementia prevalence coupled with longer life expectancy may be contributing to another change: A growing share of older Americans are spending less of their lifetimes with cognitive impairments, another recent study based on HRS data and vital statistics shows (Crimmins, Saito, and Kim 2016). The gains in life expectancy between 2000 and 2010 represent more time older Americans spend cognitively intact, the researchers report. The share of Americans 65 and older without cognitive problems increased by 4.5 percentage points for men and 3.4 percentage points for women during the decade. At the same time, the average time older people spent with dementia or cognitive impairment shortened slightly.
The report discusses the various theories and work done to help with "brain training", the correlations (if any) between certain diseases and dementia, and policy and budgetary implications. The report concludes:
Improvements in understanding, diagnosing, preventing, and treating Alzheimer’s disease and other dementias are top NIA priorities. The 2011 National Alzheimer’s Project Act and related legislation lay the foundation and provide new funding for “an aggressive and coordinated national plan to accelerate research.” This initiative includes research designed to better answer the following questions:
•What roles do education and intellectual stimulation play in delaying or preventing dementia?
•What are the connections among dementia, cardiovascular disease, obesity, and diabetes?
•What are the best ways to reduce the dementia risks that minority group members face?
Refining our understanding of the answers to these questions can enable policymakers and
planners to design and test prevention strategies that can contribute to continued future decline
in dementia prevalence.
Monday, July 10, 2017
The ABA Commission on Law & Aging and the Virginia Tech Center for Gerontology have released a report, Restoration of Rights in Adult Guardianship: Research & Recommendations. The report is divided into four parts: (1) introduction & background, (2) research on restoration of rights, (3) discussion & recommendations on key issues to restoration, and (4) conclusion. The report runs 69 pages and is available for download as a pdf. Section 3 covers a number of topics, including lack of knowledge of the availability of restoration, review by courts re: continuing need for guardianship, court access, attorney representation (and the attorney's role), the guardian's role, supports available to the person, evidence and evidentiary standards, and data and research. Here is the conclusion
The time is ripe for restoration of rights to be become a viable option for people subject to guardianship. In the context of the emergent paradigm of supported decision-making, restoration can be a path to self-determination and choice. For courts, attention to restoration can weed out unnecessary cases from dockets, allowing a stronger focus on problems needing judicial intervention, and saving administrative costs of carrying unnecessary cases.
To make restoration work:
• State legislation must ensure sufficient notice that the option exists, provide for regular court review of the continuing need for guardianship, afford the right to counsel, and set workable evidentiary standards.
• Courts must assess cases for possible restoration, find ways to make individuals and families more aware of the option, make the process more accessible, take into account available supports in making determinations, and track data on restoration.
• Guardians must perceive their role as enhancing self-determination and working toward termination of guardianship with sufficient support – more as "supporters" guided by the person’s expressed wishes if possible. There must be sufficient legal decision-making tools, family supports, technological supports, and community supports readily available to bolster functional abilities.
• Lawyers must recognize and act on the potential of restoration in guardianship cases.
This study has set the stage for such actions, bringing to life the possibility that guardianship is not automatically an end but can be "a way station and not a final destination."
July 10, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, June 1, 2017
Kaiser Health News ran an interesting story about the need for a team for aging. Putting In Place An A-Team Of Allies reports on elders who met to talk about those who would be "allies" going through the aging process, especially for those who have no nearby family. One participant, Mr. Gordon, described his allies system:
The setup has four tiers. In the first are three close friends who have powers of attorney for legal, financial and health care decision-making, should Gordon not be able to handle these responsibilities.
In the second are more than 25 friends and acquaintances whom Gordon — disabled by degenerative motor neuron disease — can call on for a ride to the doctor or a trip to the grocery store.
In the third tier are Gordon’s primary care doctor, lawyer and financial adviser, with whom he has close personal relationships. In the fourth are helpers he pays for services, including a driver and a handyman.
The article gives some examples of those who have organized their allies and recommendations for criteria in choosing allies.
Wednesday, May 24, 2017
Kaiser Health News ran a story about a series from the LA Times on Alzheimer's. The LA Times did a 3-part series on the brain and Alzheimer's. The first story focused on when the brain begins to be affected, the second about the benefits of exercise and the third about 8 items to do now to protect against dementia later. Some examples of those 8 items: exercise, eat right, don't smoke, get enough sleep, don't be isolated, be happy, and use your brain.
Monday, May 22, 2017
In what is described as a "first" for the National Academy of Elder Law Attorneys (NAELA), the organization through its New York Chapter will present argument on behalf of individuals seeking to establish access to "aid in dying." On April 27, the New York Chapter was granted leave to appear as amicus curiae in Myers v. Schneiderman before the New York Court of Appeals. Oral arguments are scheduled in Albany on May 30, 2017.
At issue is New York's penal law prohibiting assistance in "suicides." The original suit, filed in February 2015, sought a ruling that the statute, characterized by opponents as "antiquated," should be interpreted as not reaching the conduct of a physician that provides aid-in-dying where the patient is terminally ill and mentally competent and voluntarily seeks "terminal medication." Alternatively, the opponents of the law argue that the statute violates the rights of privacy and/or equal protection guaranteed by the New York State Constitution. New York's trial level court dismissed the challenge as a matter of law, on the grounds that New York's penal law was "clear on its face."
In joining the challenge to the dismissal, which was affirmed by appellate division, New York NAELA wrote:
As an organization of lawyers who represent the elderly and persons with disabilities, the New York Chapter [of NAELA] believes that a proper interpretation of New York's "assisted suicide" laws and due consideration of Appellants' constitutional challenges should be based on a fully developed factual record. These are issues of great moment to the elderly and those who love them and to the administration of justice in this State. This Court should have the benefit of a hearing and findings of relevant evidence before deciding them. . . .
What would assist this Court in fairly construing the Penal Law are facts relating to aid-in-dying. While the language of the statute is the starting point for interpretation, its words do not exist in a vacuum.
For more on the arguments, including links to the various parties' appellate briefs in Myers, see the "End of Life Liberty Project."
May 22, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Discrimination, Ethical Issues, Health Care/Long Term Care, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)