Monday, June 29, 2015
California Court Says Law Permitting Nursing Homes to "Make Routine Decisions for Incapacitated Residents" Is Unconstitutional
On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR). Lots of interesting and important issues here, including:
- the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;
- the conclusion that the California law in question, Calif. Health & Safety Code Section 1418.8, is unconstitutional, both facially and as applied;
- the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.
The 44 page opinion concludes:
"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court. The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate.... The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling. The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death. A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."
Congratulations to the hard-working advocates at CANHR, and particularly to Golden Gate Law Professor Mort P. Cohen, who brought the action on behalf of CNHR and several nursing home residents. Here is a link to the full opinion in CANHR v. Chapman, Case No. RG13700100. Here is a press release from CANHR.
June 29, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink
Friday, June 26, 2015
On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit. In Javallena v. State, the 4th DCA ruled:
The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.
On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.
"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).
The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million. No word on the status of any appeal on the separate conviction of Javallena's wife.
June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, June 24, 2015
One of our readers in England sent an item from The Independent, about a dispute between a husband and a publically-operated care home where his wife lives:
An 87-year-old man is taking Derby City Council to court after being told he must stop "constantly" kissing his wife, who has dementia, in order to continue visiting. Thomas Middleton said he has "lost the will to live" after care home staff told him to stop "constantly" kissing his wife Joan, 84, when he visits.
Mr Middleton has been made to sign an eight-point agreement to continue seeing her, which says he can only kiss his wife of 67 years once on arrival and once on departure. Mr Middleton’s daily two-hour visits are supervised by staff after a court in 2012 ruled that his wife lacked the capacity to make decisions on her needs.
The rules came after a review claimed he was "constantly kissing, pulling and poking his wife, which she protests about." The review also said Mr Middleton became "nastier and nastier" if she did not respond to him. Care home staff reported feeling intimidated by Mr Middleton, while there were also concerns that he would not return his wife if she were allowed a visit home.
Mr Middleton disputes this criticism as inaccurate: "I’ve done nothing to my wife. I love her so much. I don’t want to leave her."
In sending us this piece, our reader commented about the troubling fact that this matter has degenerated to the point where parties are going to court, noting the similarity in theme with the Rayhons case in Iowa.
Friday, June 19, 2015
The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012).
The impressive list of contributors includes:
- Naomi Cahn (George Washington Law), Continuity and Caregiving: Comments on Someday All This Will Be Yours
- Mary Anne Case (University of Chicago Law), When Someday is Today: Carrying Forward the History of Old Age and Inheritance into the Age of Medicaid
- Nina A. Kohn (Syracuse Law), The Nasty Business of Aging
- Dorothy E. Roberts (University of Pennsylvania Law), Race, Care Work, and the Private Law of Inheritance
Plus, historian Hendrik Hartog provides his own commentary and response!
- Hendrik Hartog (Princeton), Somedays I Have Second Thoughts.
Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future.
The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.
June 19, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, June 17, 2015
In 2014, the California Court of Appeal issued a decision recognizing broad application of California's Elder Abuse laws to contract-related disputes. In Bounds v. Superior Court, the appellate court set the stage for the important ruling:
Bounds, an 88–year–old widow allegedly suffering from Alzheimer's disease, alleges in her cross-complaint that for approximately six months, Real Parties in Interest Gerry Mayer (Mayer), Joseph Sojka (Sojka), and their associated businesses entities (KMA Group, LLC, Kopykake Enterprises, and Sojka–Nikkel Commercial Realty Group) engaged in abusive conduct, resulting in her signing, among other documents, escrow instructions authorizing the sale of real property owned by the Trust. Because escrow was cancelled, the Trust retains title to, and Bounds remains in possession of, the property. However, petitioners allege that the existence of the escrow instructions significantly impairs their right to sell the property at fair market value or to use it to secure a loan on favorable terms.These alleged facts raise an issue of first impression: whether to allege a “taking” of a property right under the [California Elder Abuse] Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which, in effect, significantly impairs the value of the elder's property, or whether the Act requires that the agreement have been performed and title have been conveyed.....
As explained more fully below, we conclude that because property rights include, among other things, the right to use and sell property ... petitioners' allegations that Bounds entered into an executor agreement which significantly impaired the value of the property owned by the Trust adequately pleads a "taking" -- that is, adequately pleads that Bounds has been "deprived of [a] property right .... by means of an agreement," within the meaning of [California law] section 15610.30(c).
Wednesday, June 10, 2015
An essay I read when it was first published in the New York Times Magazine in 2010, "What Broke My Father's Heart," has stayed with me. It is the deeply personal tale of a journalist-daughter's observation of her father's last years, as his pacemaker kept his heart pumping while dementia destroyed his quality of life. The daughter, Katy Butler, later turned the story, supplemented by impressive research, into a book, Knocking on Heaven's Door: The Path to a Better Way of Death.
In the essay, one of the key moments in the chronology was when Katy's father faced the prospect of surgery for a painful inguinal hernia, which doctors were not willing to perform unless his weak heart was first aided by implementation of a pacemaker. Earlier, his father, while still competent, had rejected a pacemaker, but the decision was now in the hands of his wife because of his dementia:
"When [Dr.] Rogan suggested the pacemaker for the second time, my father was too stroke-damaged to discuss, and perhaps even to weigh, his tradeoffs. The decision fell to my mother — anxious to relieve my father’s pain, exhausted with caregiving, deferential to doctors and no expert on high-tech medicine. She said yes. One of the most important medical decisions of my father’s life was over in minutes."
Ms. Butler makes it pretty clear that if the decision had been hers alone, she would not have made the same choice as her mother. Additional research demonstrates the medical, moral and legal dilemmas faced by all parties in considering the use of pacemakers for the elderly. For example, in "Pacing Extremely Old Patients: Who decides -- the doctor, the patient, or the relatives?," two physicians in the U.K. report on a three-case study where individuals, family members and doctors were not in agreement about implantation of pacemakers for patients aged 101, 90, and 87.
Wednesday, June 3, 2015
On March 17, 2015, Missouri executed "convicted cop killer Cecil Clayton." Clayton's prosecution was a matter of much legal commentary from the very outset of his arrest and prosecution in the 1990s, because of the documented history of removal of 1/5 of the frontal lobe of his brain following a sawmill accident in the 1970s.
However, as his prosecution, appeals, and post-conviction challenges wended their way through state and federal courts on issues of effective assistance of counsel, insanity and mental defect, an additional cognitive impairment was underway. By the time of his execution Clayton was reported to be Missouri's "oldest death row prisoner" at age 74 and at least five years before his last day, he had been diagnosed with progressive, neurological deterioration, consistent with "dementia."
The last court to consider the Clayton's last (and last minute) challenges to the death penalty, the United States District Court for the Western District of Missouri, wrote on the same day as his execution:
Should the Atkins [v. Virginia, 536 U.S. 304 (2002)] reasoning be applied, by analogy, to cases involving persons with physical brain damage and progressive deterioration, and an Atkins-like evaluation performed to determine whether the death penalty may be properly imposed? It seems fair to analogize the diminished capacity of the mentally retarded that lessens personal culpability and prohibits execution of the mentally retarded...to those whose physical brain damage and progressive deterioration have, for example, lessened their capacity to meaningfully participate in legal proceedings. Using a different analogy, it would be difficult to imagine, for example, that a civilized society would execute a person who was not mentally retarded at the time of the commission of a capital crime, but who subsequently developed advanced Alzheimer's disease by the time of the execution.
Ultimately, the court ruled that no relief was available to Clayton on the record before it, but the court clearly was concerned about the potential for evidence of post-conviction dementia to establish independent grounds for a valid 8th Amendment challenge. The court concluded:
Again, at this very late date, the question of whether the death penalty can be imposed against a person such as Clayton with physical brain damage—a hole in his frontal lobe—associated with progressive deterioration over time, has not been litigated here, and it may be too late. In the time available, the Court cannot conclude under the deferential AEDPA standard that the Missouri Supreme Court's decision should be disturbed.
For more on the litigation history of Clayton's mental impairment(s), see Clayton v. Al Luebbers, 2015 WL 1208786 (W.D. Mo., May 17, 2015).
Saturday, May 30, 2015
The Washington Post recently profiled Alzheimer's activist Michael Ellenbogen, including the possibility that the very disease he's urging public authorities to confront by committing to find a cure, has impaired his ability to use sound judgment about his tactics:
When Michael Ellenbogen calls for a more aggressive fight against Alzheimer’s disease, he speaks with passion that comes from experience. As someone who was diagnosed with early-onset dementia, Ellenbogen can convey firsthand the pain and frustration at what he sees as insufficient government support for research to find a cure or better treatments.
But to some, Ellenbogen’s passion recently went too far.
After he submitted remarks to the national Advisory Council on Alzheimer’s Research, Care and Services that mentioned the Columbine massacre — asking whether it would require a mass shooting by someone with dementia to draw more attention to the crisis — the Department of Health and Human Services deemed Ellenbogen a security threat. The federal agency, which hosts the council’s meetings, banned him from its premises.
For the full story, see Frederick Kunkle's article More People with Alzhemier's Are Becoming Activists -- Which Brings Its Own Challenges.
Thursday, May 28, 2015
From our roving reporter (okay, actually from my great Dickinson Law colleague, Professor Laurel Terry) we get headline news in Palm Beach, Florida and a front-page question about whether an older man has the capacity necessary under that state's "unique" law to seek an end to his later-in-life second marriage. You won't be surprised to read that money is involved in this lawsuit:
Sitting in his oceanfront condominium in Palm Beach, [87-year old] Martin Zelman can’t immediately name the president of the United States, isn’t sure what year it is and admits he can’t remember the month or the date of Valentine's Day. But he knows he wants to divorce his wife [age 80], whom he married in 2000, 7 years after they began dating.
Or does he? That's the $10 million dollar question that surrounds Zelman vs. Zelman, a unique and legally complex divorce case wending its way through Palm Beach County Circuit Court.
While the issues raised are intensely personal, they lay bare the ways adult children could use the court system to manipulate prenuptial agreements designed to protect spouses in second marriages. They also expose quirks in Florida's divorce laws, particularly a little known caveat that imposes a three-year waiting period in cases where one of the spouses has been declared mentally unfit.
For more, see Can Florida Man with Dementia File for Divorce? by Jane Musgrave for the Palm Beach Post. This story brings to mind regular reader Jennifer Young's recent, wry comment on a separate post, strongly recommending "shacking up" to avoid late-in-life second guessing of second marriages. All kind of sad, isn't it?
May 28, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 27, 2015
In my preparation for an upcoming talk show on WPSU on "Caring for Mom & Dad," I had the incentive to get to my stack of "must read" books to focus on The Aging of Dignity: Preparing for the Elder Boom in a Changing America, by Ai-Jen Poo (New Press 2015). What I very much like about this book is the broad lens it brings to aging demographics, focusing not on "burdens" but on "opportunities" to be a more productive, healthy society by dealing realistically with the need for both professional caregivers and family caregivers. Ai-Jen Poo writes:
Aging at home necessitates home care workers. Yet the 3 million people currently in the home care workforce cannot meet even the current need, let alone the demand for care that will accompany the elder boom. We will need at least 1.8 million additional home care workers in the next decade. As a result, care giving, specifically home care, is the fastest growing of all occupations in the nation....
With some course corrections in our culture and in our institutions, we can have the care infrastructure that will enable us to live our full potential. . . . The moral of this story is that a caring America is entirely within reach.
Not surprisingly, given her inspiring call for action, Ai-Jen Poo was a MacArthur "genius" grant recipient in 2014. She is one of the commentators on Caring for Mom & Dad, and in Pennsylvania, she will be part of our panel for WPSU's Conversations Live following the airing of the documentary on Thursday, May 28. The documentary is at 8 p.m., and the audience can "call-in, e-mail or text-in"beginning at 9 p.m. More details and links available here about the documentary and schedules here.
May 27, 2015 in Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Medicaid, Medicare, Statistics, Television | Permalink | Comments (0) | TrackBack (0)
Thursday, May 21, 2015
St. Louis Elder Law Attorney Martha Brown recently recommended a 2013 documentary, writing: "It is called 'Moving with Grace.' It is played a lot in St. Louis on the local PBS station as reporter Stone Phillips and his parents lived in St. Louis. It is a wonderful documentary about the trials and tribulations of aging parents without the drama of a dysfunctional family." That is an important message, right? The challenges associated with "growing older" can hit everyone, even the "best" of families.
American Public Television, that distributes the program, previews it and offers a link to scheduling in your area here, explaining:
Like many baby boomers, former NBC anchor Stone Phillips and his siblings found themselves caring for their aging parents. Ninety-two-year-old Vic, a World War II veteran, copes with chronic heart issues, although his mind and memory remain "as reliable as a Bob Gibson fastball." Grace, his wife of 66 years, suffers from dementia, which robs the once-gregarious former teacher of her short-term memory. MOVING WITH GRACE, an intimate documentary Phillips produced and shot, follows this charming couple as they move out of the family home in Missouri and adapt to life first in a retirement community and later in an assisted-living facility. This honest and, at times, poignant story highlights the common struggles associated with elder care and its consequences.
Thank you, Martha, for sharing this resource!
May 21, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Television | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 19, 2015
Recently I had the opportunity to read a report of Northern Ireland's independent Commissioner of Older People advocating for "a change of culture" to better protect older people in care settings. The thirteen primary proposals strike me as concise, reasonable, and extraordinarily important, for any (make that every) country, including the U.S.. See what you think:
1. The rights, quality of life, dignity and care needs of vulnerable older people should be at the heart of planning, delivering, regulating and inspecting care services; it is their needs that must matter the most.
2. Standards for the care of vulnerable older people should be clearly displayed and available to all service users and their families and relatives of all nursing, residential and domiciliary care services as well as for any prospective users.
3. Inspection processes should be rigorous, with decisive and timely enforcement action taken when failings are detected.
4. The regulation and inspection service should include a rating system for care homes and domiciliary services. In addition to an overall rating, it should clearly identify if there are any breaches of regulations or failures to comply with improvements required.
5. There should be clear and rigorously applied sanctions taken against care providers for non-compliance with the minimum standards.
Thursday, May 14, 2015
PBS is premiering a powerful documentary special, Caring for Mom & Dad, during the month of May, with Meryl Streep as the narrator. A sample? Many of us might find resonance with one adult's "bad daughter" (or "bad son") feelings of guilt, candidly admitted here.
Even more important than the video itself will be the conversations that follow viewing. Check your local public t.v. schedule to see when the program will air in your area. (You can check here, to see if the documentary is scheduled yet in your viewing area -- go to the drop down menu for "Schedule.") Plus, in some markets, the documentary will be combined with a live call-in opportunity for individuals and families to explore health care, social care, financial topics and legal issues with a panel of experts.
My own university, Penn State, is hosting the special on Thursday, May 28, 2015 at 8:00 p.m. (Eastern time), followed by Conversations Live at 9:00 p.m. That is two weeks from today on WPSU-TV, a station that reaches a viewing area of 29 counties in central Pennsylvania. In addition, the Conversations Live program will be broadcast on WPSU-FM radio and can be viewed "on-line" at WPSU.org.
As a result of an invitation to be part of the WPSU studio panel, I've had the opportunity to watch the documentary -- several times (it's that interesting!) -- in preparation to help in responding to audience comments, emails and call-in questions. Additional Conversations Live guests include:
Ai-jen Poo, co-director of Caring Across Generations and director of National Domestic Workers Alliance, will be joining via satellite from D.C. Ai-jen Poo is featured in the documentary, and she also has a particular interest in enactment of a Domestic Workers' Bill of Rights, to deal realistically and fairly with the work force that will be necessary to meet the boomer generation's care needs.
Dr. Gwen McGhan, Hartford Center for Geriatric Nursing Excellence at Penn State, with a research background on informal family caregiving.
Jane McDowell, Hartford Center for Geriatric Nursing Excellence at Penn State, and a geriatric nurse practitioner.
The documentary was produced by WGBH-Boston, with funding assistance from AARP and Pfizer.
Please join us and share your stories and observations. The documentary starts with personal stories, but the public policy messages that emerge are ones that need to be heard at state and federal levels -- and heard clearly -- for there to be hope for realistic, necessary and timely solutions.
May 14, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Film, Health Care/Long Term Care, Medicaid, Medicare, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, May 11, 2015
I'm catching up on news items after being away for a few days. There are additional insights about the sad trial of Henry Rayhons in Iowa, that ultimately resulted in his acquittal, from one of the jurors, who also happened to be a reporter. Too often it is easy to focus about what is wrong with the court system, but here is a reminder of just how seriously most jurors take their duties.
Read, "The Rayhons Trial: A Juror's Perspective," by Angela Nelson. And my thanks to Bryan Gruley who made sure we did not miss this powerful coda to the trial.
May 11, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Wednesday, April 29, 2015
After my blog piece earlier this week about "elder guardianship" concerns in Florida, I've received communications about similar concerns in other states, including Nevada.
According to a report by Contact 13 (ABC affiliate), on April 21 Commissioners in Clark County (Las Vegas area) conducted a "first-of-its-kind" hearing on alleged guardianship abuses that were described by some as "appalling, frightening and plagued by problems." At the heart of the complaints by individuals and family members was frequent court appointment of "private guardians" rather than family members, and an alleged absence of notice to family members about court hearings. A "blue ribbon" panel or expert may be appointed to audit Clark County's court-supervised guardianships. A recent statement by the Chief Judge for the district court, set forth in full on the Contact 13 website, pledges the court's commitment to "ensuring clarity and instilling public trust in the process of handling guardianship cases.
According to the Las Vegas Review-Journal, the Chief Judge's response follows a series of stories by the Review-Journal about "thousands of elderly and mentally ill in Clark County open to exploitation."
As reported by the Las Vegas media, the problems reported in Nevada are not unique to one county or even to one state, as demonstrated by an Associated Press series of articles in 1987 titled "Guardianships of the Elderly: An Ailing System." See also the national Center for Elders and the Courts for more information on guardianship reforms in state courts.
April 29, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
Monday, April 27, 2015
Recent news reports in the Sarasota Herald-Tribune have focused on "elder guardianships" in Florida. The articles include:
- The Kindness of Strangers: Inside Elder Guardianship in Florida, a three part "special project."
- A Civil Dispute Over Guardianship, detailing a conflict between co-trustees for a man in his 90s over costs of care. One trustee was concerned about what appear to be charities named as remainder beneficiaries and was described as making "imaginative" use of a guardianship to challenge the wife's role as the other named trustee. A sidebar in this article describes bills pending in the Florida legislature seeking to clarify the legal effect of a "power of attorney" when a guardianship petition is filed.
- Film to Detail Horror Stories from Florida Guardianship, describing a video project to share "stories about Florida's adult guardianship system," supported by a local "nonprofit organization called Americans Against Abusive Probate Guardianship."
April 27, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
On April 24, 2015, Iowa's Governor signed SF 306 into law, amending Iowa's Guardianship Law to recognize an express right of adult wards to "communication, visitation, or interaction with other persons." The law's effective date is July 1, 2015.
The law further provides that a court shall deny such rights "only upon a showing of good cause by the guardian." In the absence of an ability to give "express consent to such communication, visitation or interaction with a person due to a physical or mental condition, consent of an adult ward may be presumed by a guardian or a court based on an adult ward's prior relationship with such person."
This is an interesting law, especially coming on the heels of the Henry Rayhons trial in Iowa, even though there appears to be no direct correlation. The new provision does not, for example, define "interaction."
According to news reports, Kerri Kasem, the daughter of radio D.J. Casey Kasem, was present at the ceremony and lobbied for the bill after her late father was moved from his nursing home in California, first to Nevada and then to Washington without his children's knowledge or consent:
“This is a silent epidemic,” she said. “There are so many abuses of guardianships and so many abuses of caretakers.”
April 27, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, April 26, 2015
Sunday's New York Times has a feature article on aging and financial skills, and the message is not "just" for individuals with dementia:
"Studies show that the ability to perform simple math problems, as well as handling financial matters, are typically one of the first set of skills to decline in diseases of the mind, like Alzheimer’s, and Ms. Clark’s father-in-law, who suffered from mild dementia, was no exception. Research has also shown that even cognitively normal people may reach a point where financial decision-making becomes more challenging."
The article gives several example of individuals who were vulnerable to exploitation, because of their reduced interest in or understanding of financial decisions. David Laibson, an economics professor at Harvard, one of the researchers cited in the article said "he believed that crystallized intelligence tended to plateau when people reached their 70s." Further, "he wishes all 65-year-olds would start by simplifying their financial lives, reducing the money clutter to just a few mutual funds at a reputable institution."
The article, As Cognition Slips, Financial Skills Are Often the First to Go, offers several links to recent reports and studies, as well as examples of "early signs."
Hat tip to Penn State's Dickinson Law 1L student Spencer Flohr for sharing the link to this article -- and noting the probable relevance to law students' studies of trusts and estates law. Good catch!
April 26, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (1) | TrackBack (0)
Friday, April 24, 2015
For me, a chilling moment in the trial of State of Iowa v. Henry Rayhons came during the prosecution's case-in-chief, with the reported testimony of a physician at Mrs. Rayhons' nursing home. According to the coverage of the trial, the doctor testified that based on her decreasing score on the BIMS (Brief Interview for Mental Status), he determined Donna Rayhons lacked the cognitive ability to give consent to sex. In contrast, a defense expert was reported to have testified it was a "medical mistake" to have used such minimal evaluations of capacity to draw an arbitrary line between permission to kiss or hug, as opposed to engaging in more intimate relations.
The contrasting testimony put a spotlight on the very serious questions of who makes decisions -- and how decisions are made -- about "capacity" to engage in essential behaviors such as sex for persons with dementia. This topic is further explored, with great prescience, by a law student at the University of Illinois in the current issue of the Elder Law Journal, written well before the Rayhons trial. Stephanie Tang, who was also the managing editor for the journal in 2014-15, writes:
To best balance the interests of the elderly with those of the states, states should develop and adopt a model assessment tool that employs a clinical perspective to evaluate a person’s capacity to consent to sexual activity. Model assessment tools provide courts with a clear and objective standard, which would increase predictability and uniformity of court decisions.
Moreover, identifying specific cognitive functions that need to be assessed would constitute a major step forward in those states that have not yet done so.This Note advocates for the use of two tests: 1) the Socio-Sexual Knowledge and Attitudes Test (SSKAT) and 2) Cognisat. Authors have previously argued for the adoption of the SSKAT to assess sexual capacity to consent among mentally retarded patients. The American Bar Association and American Psychological Association cited use of Cognistat to assess cognitive capacity to consent to sexual activity among hypothetical patients with diminished capacity.
To put this simply, in her article,When "Yes" Might Mean "No": Standardizing State Criteria to Validate The Capacity to Consent to Sexual Activity for Elderly with Neurocognitive Disorders, Ms. Tang is arguing that far more sophisticated and appropriate tools are available and should be used to assist in evaluating capacity to participate in sex. Brava, Ms. Tang!
Ms. Tang's article draws in major part on the detailed factual reporting of Bryan Gruley for Bloomberg News, in his important series on rights of the elderly with dementia. Mr. Gruley's articles began to appear as early as 2013, and became even more relevant with his investigation of the events underlying the 2014 charges against Mr. Rayhons.
Wednesday, April 22, 2015
On Wednesday, April 22, 2015, at approximately 2:30 p.m. central time, after almost two full days of deliberations on a single count of statutory sexual abuse of his wife, a nursing home resident with dementia, the jury found 79-year-old former Iowa legislator Henry Rayhons NOT GUILTY.
As shown with pictures posted by KIMT.com Twitter, there are many tears in the courtroom.
Interestingly, as another indication of the State's aggressive prosecution of this case, the prosecutor filed a "Statement" with the court in Garner, Iowa yesterday, while the jury was still deliberating, asking that in the event of a conviction, Mr. Rayhons be taken immediately into custody. The explanation? The state contended that under Iowa law, sexual abuse in the third degree is covered by Iowa Code Section 709.4.(2)(a), and that any exception to "forcible felony" treatment for criminal sexual acts occurring between husband and wife does not apply, because they were not "cohabiting," at the time.
Therefore, argued the state, if convicted Mr. Rayhons would have been barred from posting bail pending appeal. Further, the prosecution argued the defendant would not have been eligible for a deferred or suspended sentence, and, once released, would be subject to restrictive, special parole terms for the rest of his life. See Iowa Code Section 701.11(1) on "forcible felony." See also Iowa Code Section 811.1. See also Iowa Code Section 907.3.
Fortunately for this defendant, the incarceration arguments are now moot.
This case has demonstrated, all too clearly, that we need better understanding of the relationship between dementia and legal capacity. The Rayhons case challenges us to consider carefully the appropriate balance between protection of individuals with Alzheimer's and recognition of fundamental human rights.
As additional details emerge, we'll supplement this post.
Here are two early stories on the aftermath of the jury's verdict:
From Bloomberg News' Bryan Gruley: Iowa Man Accused of Raping Wife with Alzheimer's is Acquitted, noting that this case "offered a rare look at a complex dilemma that will become more common as the 65-and-over population expands."
From The Des Moines Register (Tony Leys): Jury finds Henry Rayhons Not Guilty.
And from Iowa Public Radio and the local Globe Gazette, a brief video interview with a tearful Henry Rayhons. (Note the comments posted by viewers after the interview.)
April 22, 2015 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) | TrackBack (0)