Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, July 15, 2019

Note on Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model

AlzLauren Padama recently published a Note entitled, Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model, 28 S. Cal. Interdisc. L.J, 173-201 (2018). Provided below is an introduction of the Note.

After receiving a diagnosis of Alzheimer's, journalist Greg O'Brien analogized his experience with the disease to a plug in a loose socket. The light from the lamp starts to flicker, so he pushes the plug back in to the socket. It flickers more; Greg now becomes frustrated as he continues to push the plug back in. Eventually, the plug falls out of the socket entirely, and the light is extinguished permanently. This metaphor tracks the progression of Alzheimer's as a typical patient loses his memory and other core cognitive functions. It does not, however, consider that the cognitive decline is typically accompanied by a revocation of medical autonomy.

Most adults are familiar with the myriad forms they are required to sign before receiving medical treatment. These consent forms are designed to reiterate a physician's warning of the risks and benefits of the procedures to ensure that the patient is fully informed before agreeing to the procedure. This basic idea was famously articulated by then Judge Cardozo when he noted, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body … ." Since then, every jurisdiction has developed a doctrine of informed consent, which requires the doctor to make a "reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." The physician's efforts to apprise the patient of the risks and benefits of the treatment or procedure would, however, be futile if the patient were unable to evaluate the risks and benefits of the procedure and come to an informed decision on whether to accept or reject treatment. Thus, informed consent also requires that the patient have the capacity to consent  to treatment. For patients with Alzheimer's or dementia, the cognitive decline associated with the disease eventually precludes the patient from meeting the medically determined competency standards. This means that the patient can no longer give consent to receive or refuse treatment. The patient is therefore forced to rely on the judgment of the physician or another statutorily approved decision-maker for all medical decisions after loss of capacity.

Informed consent was created to preserve patient autonomy, but dementia effectively revokes a patient's right to consent or decline treatment. A dementia diagnosis is followed by a determination of incompetency at a time when critical treatment decisions are made, such as the decision to administer psychotropic medications. Most decision-makers follow a physician's treatment recommendation, which means psychotropic medications are frequently prescribed to manage symptoms of dementia. When patients refuse, caregivers in both professional and private settings covertly administer medication without the patient's knowledge or consent. 

This article explains the challenges facing both the medical and legal community as the aging population in the United States leads to an inevitable increase in the number of dementia patients. In particular, the variety of accepted instruments used to assess competency has created variability in who is considered incompetent, which forces the patient to rely on statutorily approved methods of decision-making, such as conservators, family members, and advance directives. Since requirements for each vary by jurisdiction, this paper primarily focuses on California law. After discussing the deficiencies with each form of decision-making in the context of concealment of psychotropic medication, this paper explores a new approach to decision-making that focuses on the patient as opposed to the physician's recommendations. The proposed model combines elements of enhanced consent and supported decision-making to create a new method of decision-making. This method of decision-making gives a patient in the early and moderate stages of Alzheimer's more control over her healthcare decisions by forcing decision-makers to communicate directly with the patient instead of assuming the patient's preference. This aims to preserve autonomy in early stages of Alzheimer's by shifting the focus from substituted decision-making to decision-makers actually assisting the patient in deciding whether to accept or reject psychotropic medication and then articulate that choice effectively to the physician.

This paper begins with an overview of dementia and one of the most commonly prescribed treatments for Alzheimer's patients: psychotropic medications. I then discuss informed consent, the right to refuse medication, and assessing capacity both generally and in Alzheimer's patients. After explaining the problems with current competency assessments, I then review the most common methods of decision-making after loss of capacity for Alzheimer's patients as well as alternative methods of decision-making used in other populations. I demonstrate the deficiencies in the statutorily approved methods of decision-making by applying each method to a common real-world problem of medication concealment. Lastly, I illustrate the benefits of utilizing my proposed model, a hybrid of enhanced consent and supported decision-making. This model aims to preserve patient autonomy in the early stages of Alzheimer's while also providing a tool to plan for the later stages of the disease.

July 15, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 27, 2019

Britney Spears' Father Sues Free Britney Blogger for Defamation Over Conservatorship Comments

BritneyA creator of a blog devoted to the theory that singer Britney Spears, 37, is being controlled by her father and appointed conservator, Jamie Spears, 66, has now been sued by Jamie. The singer's father became her conservator (referred to as guardian in other jurisdictions) after her highly public mental breakdown in 2008.

Anthony Elia, the man behind the Absolute Britney blog, may have to explain certain comments that he made about Jamie Spears. The lawsuit claims that Elia made false and malicious claims that Jamie and his conservatorship controlled Britney's Instagram account to make her seem less stable and more in need of psychiatric help than she actually is. The blog has also strongly influenced the #FreeBritney movement, which questions why Jamie still has a conservatorship over Britney, despite the progress she has made in her mental health over the last 11 years. A conservator is usually only appointed for the severally debilitated, whether mentally or physically, or a person in their minority.

The pop singer has not commented publicly on her conservatorship, but did request to speak to the judge in her case at a closed hearing in May. The judge subsequently ordered a court review of Britney's situation before another hearing, currently scheduled for September.

See Jessica Sager, Britney Spears' Father Sues Free Britney Blogger for Defamation Over Conservatorship Comments, Fox News, June 27, 2019.

June 27, 2019 in Current Events, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, Music | Permalink | Comments (0)

Sunday, June 16, 2019

The Best Father’s Day Gift, a Father Can Give

FathersdayOn the day that is meant to celebrate fathers and the role they play in their children's lives, they usually receive the typical gifts: a stand-out tie, a shiny new grill, maybe a nice set of tools. But what about the ultimate gift that fathers can give to their children and other loved ones?

While a ballgame sounds great on the penultimate holiday for fatherhood, any real dad will tell you that the true reward is having a sense of accomplishment, in knowing you left everything on the field when providing for your family. An effective estate plan with all the appropriate and necessary documents will pass on your legacy and keeping your loved ones safe and protected even after you have passed on.

A health care proxy allows you to designate a person to make the difficult decisions if you become seriously ill or incapacitated. A living will details the end-of-life instructions to be carried out by a medical facility as it pertains to life sustaining care. Having a durable power of attorney can be established for other decisions in a time of need, such as financial decisions that are need when you cannot. Of course, no estate plan is complete with a disposition of property, so either a living trust or a will is necessary to transfer your assets as you desire.

See The Best Father’s Day Gift, a Father Can Give, OC Estate Lawyers, June 13, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

 

June 16, 2019 in Current Affairs, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Games, Trusts, Wills | Permalink | Comments (0)

Friday, June 14, 2019

Note on Reading the Tea leaves: Sifting Through Jicarilla and Garner to Construct a Workable Fiduciary Exception Framework for ERISA Insurers

InsuranceTed A. Hages published a Note entitled, Reading the Tea leaves: Sifting Through Jicarilla and Garner to Construct a Workable Fiduciary Exception Framework for ERISA Insurers, 80 U. Pitt. L. Rev. 409-455 (2018). Provided below is the introduction to the Note.

Mark secures a new manager-level job with a $200,000 base salary and a guaranteed bonus of $300,000 for his first full year of employment. His employer also offers a competitive benefits package, which includes a long-term disability plan. Unfortunately, after only three months on the job, Mark gets into a terrible bicycling crash, rendering him permanently disabled.

Mark informs human resources that he will be applying for disability benefits under the disability plan, but he is told that the administration of the plan has been outsourced to an insurance company. He applies for disability benefits with the insurer responsible for evaluating his eligibility for benefits under the plan and paying them if appropriate. The insurer approves Mark's claim, but deems him eligible for a monthly benefit payment based on only his $ 200,000 base salary. Feeling cheated, Mark files an appeal arguing that his benefits should be based on his total compensation of $ 500,000. The insurer denies his appeal, stating that he did not work a full year prior to the accident and any bonus paid to him would be mere goodwill by his employer.

Mark decides to sue the insurance company. During discovery, he requests to see a memo written by the insurance company's lawyer for the claims analyst that oversaw Mark's claim. The insurer, however, contends that this memo is protected by the attorney-client privilege.

What happens next, strangely enough, depends on where the suit takes place. If Mark's claim is litigated in a federal court in Pennsylvania, New Jersey, or Delaware, then Mark is out of luck. His request to compel production of the memo will be automatically rejected. But, if he happens to be on the West Coast, he will automatically prevail through a common law fiduciary exception to the attorney-client privilege. If he is somewhere in between, the result is uncertain.

This inconsistency and uncertainty in the law denotes a current circuit split in the federal courts of appeal. The Third and Ninth Circuits disagree as to whether a beneficiary of an employee benefit plan can defeat an insurer's assertion of the attorney-client privilege, where the insurer is tasked with evaluating and paying benefit claims as a third-party claims administrator. In the Ninth Circuit, beneficiaries automatically defeat the privilege pursuant to Ninth Circuit caselaw on the fiduciary exception to the attorney-client privilege, and in the Third Circuit, just the opposite. Where the fiduciary exception applies, it precludes fiduciaries who obtain legal advice in the execution of their fiduciary obligations from asserting the attorney-client privilege against their beneficiaries. No circuit beyond the Third and Ninth has yet examined this issue, leaving much uncertainty for benefit plan participants and insurer-fiduciaries across the country.

Many perspectives have been written on whether the Ninth or Third Circuit "got it right," in holding the fiduciary exception per se applicable to insurers and per se not, respectively. This Note, however, focuses not on which court came to the right result, but rather, it scrutinizes the underlying legal framework that allowed the courts to divide. After reviewing the basic doctrinal test--a two-rationale framework which determines the fiduciary exception's applicability--and how it has been applied both historically and in the circuit split, this Note "reads the tea leaves" that is an uncertain fiduciary exception jurisprudence in an effort to establish uniformity. This is accomplished by a two-part solution. First, this Note extracts the key principles from the Supreme Court's only fiduciary exception case to define the proper doctrinal elements for each part of the two-rationale framework. But even if the courts are in accord as to the exact legal test by which the fiduciary exception should be applied, uncertainty still remains given the pliability of that framework. To resolve this shortcoming, a new prong to the fiduciary exception test for ERISA insurers is proposed: a good cause prong, borrowed from the shareholder derivative suit context, but modified so that the insurer bears the burden of showing cause for nondisclosure.

Part I of this Note provides background on the fiduciary exception. Part I-A traces the doctrine's trust law origins, whereby the two-rationale framework was established as the legal test for the exception. Part I-B discusses how that test has been extended, focusing on its use in shareholder derivative suits through the Garner doctrine. Part II explores the fiduciary exception in ERISA cases, with Part II-A covering trustee-like ERISA cases. Part II-B dives into an ERISA context where the doctrine has not been so easily applied: the insurer-fiduciary context of the circuit split. Part II-C discusses the uncertainty surrounding the split and its causes. Finally, Part III offers a two-part solution to rework the doctrine. In Part III-A, the Supreme Court's Jicarilla decision is probed to establish the proper elemental tests for the two-rationale framework. Part III-B then proposes a new doctrinal prong for the fiduciary exception framework in the ERISA insurer context: a good cause prong deriving from Garner, but with a modified burden standard.

June 14, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (1)

Thursday, June 13, 2019

Article on Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners

CourtThomas W. Mitchell recently published an Article entitled, Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Over the course of several decades, many disadvantaged families who owned property under the tenancy-in-common form of ownership – property these families often referred to as heirs’ property – have had their property forcibly sold as a result of court-ordered partition sales. For several decades, repeated efforts to reform state partition laws produced little to no reform despite clear evidence that these laws unjustly harmed many families. This paper addresses the remarkable success of a model state statute named the Uniform Partition of Heirs Property Act (UPHPA), which has been enacted into law in several states since 2011, including in 5 southern states. The UPHPA makes major changes to partition laws that had undergone little change since the 1800s and provides heirs’ property owners with significantly enhanced property rights. As a result, many more heirs’ property owners should be able to maintain ownership of their property or at least the wealth associated with it.

June 13, 2019 in Articles, Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, June 11, 2019

Mary Max, Wife of Peter Max, is Found Dead of an Apparent Suicide

PetermaxA friend of Mary Max, 52, the wife of artist Peter Max, found her body Sunday inside the couple's 15th floor apartment on Manhattan's Upper West Side on Riverside Drive near West 84th Street. The cause of death is an apparent suicide of nitrogen asphyxiation. Mary and her stepson, Adam, had been steeped in legal turmoil revolving around the failing health of 81-year-old Peter and his artwork.

Peter has an advanced state of dementia, and his mental state has steadily declined in recent years. Adam had sued Mary in 2015 claiming that she was trying to kill his father to gain control over his multi-million dollar art collection. Mary asked then asked the court to appoint a guardian to oversee her husband's business after Adam and three business associates took over the artist's studio, increasing production and profit through a series of art auctions on cruise ships. After the appointment of the guardian, Adam removed his father from his home and moved him around New York for more than a month, to which Mary accused him of "kidnapping" Peter and withholding his whereabouts from her.

A judge ordered Peter to be returned to Mary's care at their Manhattan apartment and that a guardian oversee both his business and personal affairs. Peter's daughter who lives in Los Angeles, Libra, took over her father's studio in January and filed a lawsuit to stop her brother from being able to interact with the company.

See Bridie Pearson-Jones and Ariel Zilber, Mary Max, Wife of Peter Max, is Found Dead of an Apparent Suicide, Daily Mail, June 11, 2019.

June 11, 2019 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Friday, May 31, 2019

‘Star Trek’ Actress Nichelle Nichols, 86, said to be Heard Screaming for Help in Audio Recording: Report

NicholsA recording that allegedly contains the voice of Nichelle Nichols, the actress that played Lieutenant Nyota Uhura on the original “Star Trek” television series in the 1960s, shrieking and screaming for help. Nichols is currently in a guardianship battle with her son over her suffering from dementia. 

“You get your hands off me! You’re trying to get rid of me!" the voice shouts from the recording. Gilbert Bell, a longtime friend of Nichols, supplied video and audio in which Nichols reportedly discusses her son’s efforts to gain control of her estate. Later the voice claims, “I didn’t give permission to have conservatorship over me. I didn’t know what he was doing.”

Nichols was praised by Dr. Martin Luther King Jr. for helping to break racial stereotypes with her role on the show. One year later Nichols and William Shatner, who played Captain Kirk, made TV history when they shared an interracial kiss.

See Dom Calicchio, ‘Star Trek’ Actress Nichelle Nichols, 86, said to be Heard Screaming for Help in Audio Recording: Report, Fox News, May 29, 2019.

May 31, 2019 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Television | Permalink | Comments (0)

Sunday, May 26, 2019

Americans Delaying Plans for Life and Death

SurveyBetween February 26 and March 2, 2019, DHM Research asked 625 respondents nationwide questions pertaining to planning for their retirement and death. The research found that an alarming amount of people are putting off important intentions that should be performed earlier rather than later.

The results showed that only 19% of those surveyed had an advance directive, 26% had a will, 15% had a power of attorney, 30% had a general financial plan for the future, an astounding 44% said they did not have any of the above named items. More women had an advance directive, will, or power of attorney, and more men had a financial or life plan. As the age of the respondents increased, the likelihood of them having a will also increased.

The survey found that the better-educated the respondent, the more likely he or she had at least one or more plans for life, finances, health and death. This was also true if the respondent earned a higher income. Respondents earning $25,000 or less a year were only 16% likely to have a financial or life plan.

See Joyce Blay, Americans Delaying Plans for Life and Death, Financial Advisor, April 5, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

May 26, 2019 in Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, May 22, 2019

Fears About Parents' Finances Causing Some U.S. Adults to Cut Spending

TiaaAccording to an online survey conducted by TIAA consisting of 1,003 American adults, 27% of adult children lack confidence in their parents’ financial security, and are twice as likely to lack confidence in their own retirement. The older the generation, the more concerned they are about their parent’s financial security, according to the results of those surveyed: 35% of Generation Xers and 26% of baby boomers believed their parents were in good or excellent financial circumstances, compared to 52% of millennials.

Many of the next generations also believe that they will be handling their own personal finances better than their parents did. 39% of Generation Xers and 35% of baby boomers disagreed that their parents’ approach to saving and investing is admirable and one to emulate, while only 25% of millennials felt the same.

Dan Keady, chief financial planning strategist at TIAA, noted that people’s financial habits and retirement planning are shaped by the experiences of their parents. “The confidence that millennials have about their parents’ finances may actually create a false sense of security, especially when individuals mistakenly believe they will receive an inheritance when their parents don’t have the same plans or intention.”

See Jacqueline Sergeant, Fears About Parents' Finances Causing Some U.S. Adults to Cut Spending, Financial Advisor, May 20, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

May 22, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Sunday, May 19, 2019

Legal-Ease: What to do When Facing a Nursing Home Decision

NursinghomeThe decision whether to place an aging parent in a nursing home, provide in-home care, or move them in with their adult children can be an extremely difficult one. This decision can be prompted by illness, injury, or a series of absentmindedness. The tight-knit nature of the families in the Midwest can motivate people to try to care for their loved ones themselves. But even for a medical professional, the toll of being a caretaker for a loved one usually becomes too mentally and physically overwhelming.

There are three steps that should be undertaken as soon as possible to determine if the correct path should be a nursing home, assisted living or professional in-home healthcare.

  • First, ensure that the loved one has updated his or her powers of attorney and living will (advanced directives). These legal documents are necessary for another person to make financial and/or medical decision for another individual.
  • Second, develop a financial plan under the advice of an attorney. This should include an analysis of all assets, liabilities, monthly income and monthly expenses. Investigate Medicaid's five-year lookback rule to determine eligibility for the program.
  • Third, work closely with the attorney so that the agent does not become personally liable for the long-term care bills of the aging individual and asset transfers can be accommodated at the proper times. This can ensure that applications for Medicaid and other programs are not done too soon nor too late.

See Lee R. Schroeder, Legal-Ease: What to do When Facing a Nursing Home Decision, Lima Ohio, May 11, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

May 19, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)