Archive for the 'Gaurdianships/Conservatorships' Category

New “Asisted” Suicide Case in Austrailia

CNN reports that an Australian man, Christian Rossiter, recently won his right to die, by refusing food and water, from the Australian Supreme Court.  The case is interesting for two reasons: 1) Chief Justice Wayne Martin wrote “Mr. Rossiter is not a child, nor is he terminally ill, nor dying. He is not in a vegetative state, nor does he lack the capacity to communicate his wishes, and 2) Mr. Rossiter is a quadriplegic thus requiring the intervention of the nursing home workers (where he resides) to assist him with taking pain medications.

It is this latter point that lead Mr. Rossiter’s nursing home to file the suit seeking a declaration from the court that they would not face liability for assisting Mr. Rossiter with his wishes.  In Australia one is able to make their own decision regarding their right to to die but assisting someone else in actualizing those wishes can lead to a life sentence.

It appears this is the first case of an individual not under a legal disability or otherwise lacking capacity that has made this decision in Australia.

Most ironic quote:  “Rossiter appeared ‘very happy’ afterward.”

Professor Berry posted on this story yesterday.

Dana-Faber Cancer Institute Says: Pious Fight Death Hardest

An interesting article from Slashdot today linking to this BBS story:

A US study suggests that people with strong religious beliefs appear to want doctors to do everything they can to keep them alive as death approaches. The study, following 345 patients with terminal cancer, found that ‘those who regularly prayed were more than three times more likely to receive intensive life-prolonging care than those who relied least on religion.

The BBC story says:

Those who regularly prayed were more than three times more likely to receive intensive life-prolonging care than those who relied least on religion.

The team’s report was published in the Journal of the American Medical Association.

It suggests that such care, including resuscitation, may make death more uncomfortable.

Just over 30% of those asked agreed with the statement that religion was “the most important thing that keeps you going”.  

The poster on /. opines:

one would think that a strong belief in an afterlife would lead to a more resigned acceptance of death than nonbelievers who view death as the end of existence, the annihilation of consciousness and the self. Perhaps the concept of a Judgment produces death-bed doubts? (‘Am I really saved?’) Or, given the Judeo-Christian abhorrence of suicide, and the belief that it is God who must ultimately decide when it is ‘our time,’ is it felt that refusing aggressive life support measures or resuscitation is tantamount to deliberately ending one’s life prematurely?

I don’t know that I have any specific thoughts, other than to say that this is the opposite of what I would have expected.

Antipsychotics Increase Risk of Death in Dementia Patients, FDA Warns

FDA ALERT [6/16/2008]:  FDA is notifying healthcare professionals that both conventional and atypical antipsychotics are associated with an increased risk of mortality in elderly patients treated for dementia-related psychosis.

In April 2005, FDA notified healthcare professionals that patients with dementia-related psychosis treated with atypical antipsychotic drugs are at an increased risk of death.  Since issuing that notification, FDA has reviewed additional information that indicates the risk is also associated with conventional antipsychotics.

Antipsychotics are not indicated for the treatment of dementia-related psychosis.

The Food and Drug Administration warned doctors Monday that prescribing a certain group of psychiatric drugs (the atypical kind) to seniors suffering from dementia can increase their risk of death.

In April 2005, [the] FDA informed healthcare professionals and the public about the increased risk of death in elderly patients receiving atypical antipsychotic drugs to treat dementia-related psychosis.  “The analyses of 17 placebo-controlled trials that enrolled 5377 elderly patients with dementia-related behavioral disorders revealed a risk of death in the drug-treated patients of between 1.6 to 1.7 times that seen in placebo-treated patients.”  Most of the deaths appeared to be either cardiovascular (e.g., heart failure, sudden death) or infectious (e.g. pneumonia) in nature.


Though the FDA opine that “the methodological limitations in these two studies preclude any conclusion  that conventional antipsychotics have a greater risk of death with use than atypical antipsychotics”, they nonetheless have determined “that the overall weight of evidence, including these studies, indicates that the conventional antipsychotics share the increased risk of death in elderly patients with dementia-related psychosis that has been observed for the atypical antipsychotics.”

Conventional Antipsychotic Drugs Atypical Antipsychotic Drugs
Compazine (prochlorperazine) Abilify (aripiprazole)
Haldol (haloperidol) Clozaril (clozapine)
Loxitane (loxapine) FazaClo (clozapine)
Mellaril (thioridazine) Geodon (ziprasidone)
Moban (molindone) Invega (paliperidone)
Navane (thiothixene) Risperdal (risperidone)
Orap (pimozide) Seroquel (quetiapine)
Prolixin (fluphenazine) Zyprexa (olanzapine)
Stelazine (trifluoperazine) Symbyax (olanzapine and fluoxetine)
Thorazine (chlorpromazine)
Trilafon (perphenazine)

The Increasing Amount of Guardianship Litigation

While not directly on point, the above from Legal Antics nonetheless got me thinking more about this post by Philip Bernstein at The New Your Probate Litigation Blog about the increase that he is seeing in family fights over whom should/will care for mom and dad’s last illness.

Don’t think for a second that these fights are truly over who wants to help mom from her bed to the bathroom, no, its all about money… Reasoning that those children who assist mom or dad in the last illness will get more from their parent’s estate, some kids seem willing to throw their relationships with their siblings out the window. Its something we worry about constantly here when doing guardianships… By statute the court has to ask whether the guardianship applicant seeking to be appointed for mom or dad is the best person to be in that position but Phil is right to counsel greater caution. So we regularly ask the client – is anyone going to object to your appointment? Its not like any of this can kept secret. The other siblings are going to get notices from the court. If there is a way to preemptively mediate any potential disputes over the client’s appointment (to the extent that our duty of loyalty to our clients let us), such efforts are well spent if the goal is avoiding litigation. That saves everyone a great deal of time and money.

I do wonder whether the increasing amount of guardianship litigation really is the result of a change in the landscape itself, or if there are just more guardianships in the aggregate now that the boomers are “at that age.”

Kaplan’s Top Ten Myths of Social Security now available via SSRN

From The Elder Law Prof Blog and Kim Dayton comes a link to Dick Kaplan’s Top Ten Myths of Social Security:

(1) there is a trust fund,
(2) Social Security does not increase the federal budget deficit,
(3) retirees are only recovering their own money,
(4) Social Security will not be there when one retires,
(5) retirement benefits are proportional to one’s lifetime earnings,
(6) Social Security favors two-income married couples,
(7) Social Security favors long-lived marriages,
(8) one could do better investing directly,
(9) working after retirement makes financial sense, and;
(10) retirement benefits are taxed more heavily than other pension payments.

The full paper (from SSRN) is available here.

Thanks Kim!

Elder Abuse Roundup

No one wants to talk about it but it happens all the time… Much more than is actually reported. Loved ones of residents need to be constantly on the look-out for signs of abuse as reflected by their behavior.

The growing issue of elder abuse in [Western North Carolina]

This article contains some good (and scary stats).

In 1997, 12 percent of the population in North Carolina was older adults, and the projection for 2020 is that the number will grow to 18 percent. To contrast, the 2000 Census states that persons over 65 make up 19.6 percent of Haywood County, 13.9 percent of Jackson County, 22.8 percet [sic] of Macon County and 16.7 percent of Swain County.

In a recent survey of professionals who work with the elderly in the seven western counties, 72 percent suspect that abuse is going on in their communities and 91 percent believe that elder abuse goes underreported.

Barnet acts to prevent elder abuse

Over 280 health and social care staff attended an innovative event staged this week by Barnet Council to train them to prevent the abuse of vulnerable adults.

At the event actors from AFTAThought acted out case scenarios featuring the types of situations that staff encounter in their day to day work. Staff then had opportunity to discuss and share their views in relation to the scenarios presented.

This particular article mentions the government’s Dignity Challenge which, frankly, was news to me. More info here. In a nutshell its a challenge to service providers, “commissioners” (whoever they are), and the public espousing laudable aspirational goals for those concerned with Elder Care.

Two Caregivers Arrested In Elder Abuse, Exploitation

TALLAHASSEE, FL – Attorney General Bill McCollum today announced that the owner and operator of a Santa Rosa County Adult Family Care Home has been arrested and charged with exploiting an elderly resident of the facility.

Apparently, after his caregivers went out of town, the victim was placed in the Tolbert Adult Family Care Home. After being forced to sleep on a couch for weeks and being constantly harassed by the owner, a despicable human being named Marian Tolbert, the victim eventually altered his life insurance policy to name Ms. Tolbert a beneficiary.

“[U]p to five years imprisonment and a $5,000 fine” hardly seems enough.

In another case Shirley Burch, an employee of South Florida State Hospital was arrested on charges that she abused a disabled resident of the hospital who is suffering from schizoaffective disorder by pushing her to the ground. “Burch was arrested by law enforcement officers with the Attorney General’s Medicaid Fraud Control Unit. Witnesses reported that Burch, 51, often became angry at a 68-year-old resident and on at least two occasions pushed him hard enough to cause him to fall. The elderly victim sustained multiple facial lacerations as a result of the abuse.”

Burch was subsequently terminated from her employment at the hospital.

Good riddance.

Grim pattern to reports of abuse

The details about John R. Riems’ alleged assaults against nursing home residents seem grimly familiar to social workers. They say assaults against mute and helpless victims fit a pattern.


A fact sheet on elder sexual abuse from the Maryland Coalition Against Sexual Assault says perpetrators are most likely to be male, and victims most often are women older than 70 who are “totally dependent or functioning at a poor level.”

Riems, recently fired from his position as a nurse at Concord Care and Rehabilitation Center, is accused of raping a 55-year-old man unable to talk or see because of a stroke.

Sexual abuse cases in Ohio verified by the Ohio Long-Term Care Ombudsman office:

    2007: 15
    2006: 9
    2005: 7

Because this blog is public I’ll refrain from listing the preferred treatments that should be forced on this cockroach for the duration of his sad life.

Thanks to Kim Dayton of the Elder Law Prof Blog.

A Good Example Of Fiduciary Duty – And Of Its Breach

Joel A. Schoenmeyer of The Death & Taxes Blog writes here about an oft-repeated issue: How do you define fiduciary duty?

This question is obviously important when a client comes to you alleging that such a duty has been breached.

Wikipedia has 11 relationships in which a fiduciary duty is commonly found but then it follows those up with additional “possibilities”… Its not exactly a science. The duty is one that encompasses principals of equity and fairness and therefore necessarily lives in a gray area.

This case (PDF) though gives us a pretty good example of the duty and of its breach.

Mr. Schoenmeyer summarizes the facts as follows:

The case pitted a decedent’s executor (his brother and business partner) against the decedent’s widow. The case revolved largely around appraisals of the business owned by the decedent and his brother, and the court found that the executor abused his discretion in obtaining low-ball appraisals and hiding more accurate appraisals from the widow.

And it feels that the court decided correctly doesn’t it?

Judge Cardozo is famous for saying:
“A [fiduciary] is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of honor the most sensitive, is the standard for behavior.”

I’m not sure what that means either but like another Judge is famous of saying (about a slightly different topic), you know it when you see it.

List of Worst Nursing Homes in U.S. Released by Feds

A few days ago Michael J. Keenan of The Connecticut Elder Law Blog posted this story pointing to a list of the worst nursing homes in the US by the federal government’s Center for Medicare and Medicaid Services (CMS).

The homes in question are among more than 120 designated as a “special focus facility.” CMS began using the designation about a decade ago to identify homes that merit more oversight. For these homes, states conduct inspections at six month intervals rather than annually.

With only 120 on the list its a pretty exclusive club. And thankfully not a single facility in Ohio ‘made the cut.’

This list is available here.

Amy Winehouse, Drugs and Alcohol, and Guardianship

Joel A. Schoenmeyer writes an entertaining post about how to potentially cure/deal with the intransigence/fixed delusions of someone who is causing harm to themselves or others with their ongoing drug abuse.

In Illinois, there’s a solution more concrete than “trying to reach out to an adult child in trouble.” Article XIa of the Illinois Probate Act deals with guardianships for disabled adults, and the definition of “disabled person” (in Section 11a-2) includes “a person 18 years or older who… because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.” In other words, someone can petition the court to find a person with drug or alcohol problems to be disabled, and be appointed as that person’s guardian. This could allow the guardian to make decisions about the ward’s finances and health care, among other things.

I’m not a fan of her music but if her poor mother’s statements (I heard on NPR) are any indication, this sounds like good advice.

Thanks Joel!

Medicare Reimbursement For Hospice Providers

This story from today’s NYT is another in the long line of disturbing stories about Medicare payback requirements:

Hundreds of hospice providers across the country are facing the catastrophic financial consequence of what would otherwise seem a positive development: their patients are living longer than expected.

Over the last eight years, the refusal of patients to die according to actuarial schedules has led the federal government to demand that hospices exceeding reimbursement limits repay hundreds of millions of dollars to Medicare.

The charges are assessed retrospectively, so in most cases the money has long since been spent on salaries, medicine and supplies. After absorbing huge assessments for several years, often by borrowing at high rates, a number of hospice providers are bracing for a new round that they fear may shut their doors.