 Phinney Estate Law added some additional phone lines yesterday to provide better access to clients. Unfortunately, technical problems led to our having no phone service for much of yesterday and early this morning and the possibility of lost voicemails left during that period. If you called yesterday and couldn't get through, we apologize. If you left a message and haven't heard back from us yet, please call back! Thanks. Add Comment  Resa Raven v. Department of Social & Health Services (Washington State Court of Appeals Division 2, March 27, 2012), is a sad case that highlights in many ways the limits of guardianship to resolve care issues for seniors. The case involves the neglect and death of senior under the care of a professional guardian. The senior, referred to in the case only as Ida due to privacy issues, became bedridden after a fall in 1996. Her condition declined and became complicated by dementia that lead her to believe that family members who were providing care were imposters. Ida was uncooperative with care and evidence suggests that her family were unable or unwilling to properly administer pain medication and other care. After numerous reports and a prior inconclusive investigation, in 2204 APS filed for guardianship and Resa Raven, a certified professional guardian was appointed as her limited guardian. ”The trial court gave Raven authority to (1) consent to or refuse medical treatment and (2) decide who would provide care and assistance.” Raven served as her guardian for 20 months. Based on her historical and ongoing refusal to nursing home placement, Raven attempted to have her cared for at home. Ida's refusal to cooperate with care along with doctor who quit and care agencies that lack staff to provide sufficient hours of care or who were unwilling to cooperate with orders for more regular turning lead to a further decline in health. In the Winter storm of 2006, Ida was left unattended and declined further and died after a brief hospitalization. After Ida's death DSHS charged Raven with neglect under the Abuse of Vulnerable Adults Act, RCW ch. 74.34. The Court of Appeals described Raven’s duty to Ida: A court-appointed guardian owes a duty of care to her ward. RCW 11.92.043(4). Specifically, a guardian has a duty “to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person’s freedom and appropriate to the incapacitated person’s personal care needs, [and to] assert the incapacitated person’s rights and best interests.” RCW 11.92.043(4). The court acknowledged Raven's duty "did not include guaranteeing effective care and treatment" but did include making every reasonable effort to provide the care Ida needed. Raven argued that because the law does not allow involuntary detention in a residential treatment facility and mental health evaluators had refused to find Ida qualified for involuntary commitment she had not breached any duty. The court found in "failing to aggressively pursue transitioning Ida from home care to residential care, Raven was not balancing Ida's wishes against her medical needs." The court appears to suggest that Raven's obligation was to convince Ida to go into residential care, find adequate in home care, or "step aside" and allow a more experience guardian to be appointed. The decision made it clear that in negligence cases under the Vulnerable Adult statute it was not necessary to prove the neglect lead to the harm finding that the Act requires DSHS to prove a pattern of conduct resulting in a deprivation of care. But it plainly does not require DSHS to prove that such pattern of conduct caused Ida harm or that if Raven had offered an alternative care plan, Ida would have accepted it.. and that the standard was a mere preponderance of the evidence. There is much about Raven's handling of the situation that is problematic. She was not making regular visits to Ida to fully assess the seriousness of the situation and try to convince Ida to reconsider residential care. She did not make efforts to find staff to fill all of the care slots funded by DSHS when the care agency had inadequate staff to work all funded shifts or replace doctors and nurses that quit or replace health care workers who refused to comply with hospice orders on care because they disagreed with them. But she also ran up against many problems that plague even the best of guardians. Guardianship does not give the guardian the power to force a ward into residential care and many wards refuse to consent even when the issue is aggressively pursued. Good in home care can be difficult to find or prohibitively expensive for wards who require round the clock care. It is not uncommon for workers, facilities, and even doctors to refuse to continue to work when resources dry up, families are difficult, and wards are uncooperative and the guardian has little control over any of those factors. The courts response to these very real structural problems with our society's resources and systems of care for the aging is to "agree that Ida’s case presented difficult problems. . . . [which] frustrates the very purpose of her appointment as Ida’s guardian. When Raven reached the conclusion that obstacles were beyond her control, she should have stepped aside." While every professional who works in the realm of guardianship hates to see a ward this vulnerable receive this little care or attention with this tragic result, we also need to recognize that there may be cases, even with the best of professionals, without good answers. Everyone stepping aside may simply leave no one responsible and even less care for the ward. We regularly see cases where facilities, family, and friends seek a guardianship to try to force their loved one into residential care when they refuse. It is often our job to explain that guardianship doesn't give them that power although it may give them more tools, such as financial control, to influence the ward. With this case, we will also need to explain that if those tools don't work and a good in home plan cannot be created, they may need to step aside or face claims of negligence. In many of these case what is needed is a plan to get the ward, if possible, to agree to care and get people in place with the legal authority to implement the plan. That may not always be guardianship and may be best pursued through ADR outside the courts. Another good take away message from the case is that guardians, when appointed, need legal representation. In this case Raven was advised by the court to seek legal representation to address the issue and declined. An attorney might have been able to assist her in petitioning for instructions from the court on how to overcome the challenges she faced, documenting her attempts to get Ida care, and ultimately helping her to resign if no solution could be found. There are many volunteer family guardians operating without legal representation with even less access to community resources and understanding of their legal rights and obligations. That may be unwise. Assuming the duties of a guardian is not a small step and I think all guardians need some assistance from an attorney. Failure to get help when needed can lead to legal liability for them and inadequate care for their ward. If you would like to set up a consultation to discuss options for caring for a declining loved one or are a guardian needing representation to protect you and your ward, contact us at info@phinneyestatelaw.com or call us at (206) 459-1908.  Forbes Magazine has an interesting article this week on reasons why Boomers should revisit their estate plan. Inspired? Contact us to set up a free 1/2 hour consultation to review your estate plan and see if it is time to make some changes to better match who you and your family are now. Email us at info@phinneyestatelaw.com or call us at 206-459-1908. Please join the WSBA ADR Section’s Membership Committee for our third Panel Discussion and Networking Event, Thursday, March 29, 5:30pm at the Red Lion Hotel in Downtown Seattle. We’ll be featuring a panel of experts on the topic of Collaborative Probate. Our panelists are:
 The first step in any good Health Care Disability Plan, and probably the most important, is to choose your Health Care Agent. A Health Care Agent, also sometimes called a Health Care Proxy, is the person you select to speak for you in a medical crisis, in case you are not able to speak for yourself. Under Washington State’s default statute for those who do not makes their own plan, spouses or registered domestic partners are given priority in decision making, followed by adult children. However, the ultimate decision maker is the patient’s guardian, if one exists, and family disputes can erupt and health care decisions be delayed if family members or friends attempt to be named guardian when there is a lack of consensus about care. For those who are single and have either multiple children or no children the need to make it clear who has decision making authority is even more important. In any case, medical crisis decision making usually goes best when the hospital is clear about who the decision maker is and are confident that disputes about who is in charge are not part of the equation. In naming a health care agent, it is usually easiest to name one person or agent to serve at a time, with at least one successor, or back-up person, in case the first person is not available when needed. However there may be good reasons for selecting more than one person to serve at a time as well, such as a desire to include all of your children. If you do chose more than one person you will need to include how you want decisions to be made (i.e.. all must agree v. majority rule.) It is also possible to include a request that your primary agent consults with others, be it family members or a close friend with greater medical knowledge, while still leaving only one final decision maker. It may also be possible to name someone you trust who lives near you to serve as a temporary agent until your first choice agent is able to come to the treatment facility if the person you must trust to make ultimate decisions lives far away. An Attorney familiar with disability planning can help you to think through the pros and cons various arrangements and think creatively about solutions to potential problems that might arise. The following are come important questions to ask when weighting possible agents. Keep in mind that the importance of some of these factors may depend on whether your top priority is having your wishes honored or having your family feel best about the process. 1. Does your agent meet the legal criteria for acting as agent or proxy or representative? (In Washington State, that includes a requirement that the person be at least 18 and not be your doctor or otherwise employed by your health care provider unless they are an immediate family member.) 2. Would your agent be willing to speak on your behalf? 3. Would your agent be able to act on your wishes and separate his/her own feelings from yours? 4. Does your agent lives close by or could they travel to be at your side if needed? 5. Does your agent know you well and understands what’s important to you? 6. Could your agent handle the responsibility? 7. Will your agent talk with you now about sensitive issues and will listen to your wishes? 8. Will your agent likely be available long into the future? 9. Would your agent be able to sensitively handle conflicting opinions between family members and friends? 10. Can your agent be a strong advocate in the face of an unresponsive doctor or institution? The decision of who you select as your Health Care Agent should be document in a valid Durable Power of Attorney for Health Care which will be discussed in later posts. If you would like help selecting your Health Care Agent or crafting a Durable Power of Attorney, please call or email now for a free half hour consultation to see if our services are right for you. Tel. 206.459.1908 or info@phinneyestatelaw.com or attend one of our free classes. On March 21, 2012, Jamie Clausen will be a half day CLE on Collaborative Probate and Elder Law for the King County Bar Association. If you haven't registered yet, it isn't too late. Other presenters include Jeff Bean, David Strickland, Former Commissioner Eric Watness, Kathleen Wareham, Joanna Roth, and Alexandra Moore-Wulsin. When:March 21, 2012 12:00 to 4:30 Where: Rainier Square Conference Center, 1301 Fifth Avenue, 3rd Floor Atrium, Seattle Credits: 3.50 General and .50 Ethics CLE Credits AGENDA: 11:30-12:00 Registration and Coffee Service Attendees are welcome to bring a brown-bag lunch 12:00-12:15pm Welcome and Overview Jamie Clausen, Phinney Estate Law, Chair 12:15-12:45pm Making the Collaborative Law Choice Jeffrey P. Bean, Beyond the Courthouse Mediation
David A. Strickland, Attorney at Law Alexandra Moore-Wulsin, Strata Law Group
1:45-2:30pm Collaborative Approaches to Classic Probate Conflicts The Honorable Eric Watness, Jams, King County Superior Court Commissioner (Ret.) Jamie Clausen, Phinney Estate Law
Kathleen Wareham, WAMS Mediation & Arbitration Panel Member Alexandra Moore-Wulsin, Strata Law Group
3:15-3:45pm Ethics in Collaborative Probate and Elder Law Joanna Roth, Attorney at Law
All Speakers 4:30pm Evaluations and Adjournment  In past posts we have talked about the situations that might arise that would require someone else to make health care choices for you if you couldn't give informed consent and the kind of choices that they might have to make. In upcoming posts we will discuss how to plan to have the right person make these choices and how to make sure they get enough instruction to do the job well. But before we get to that, we thought it would be helpful to explain what happens if you don't make a plan. In Washington those choices are governed by Statute, specifically RCW 7.70 which is commonly known as the "consent statute." Under Washington law, if the patient is incapacitated and cannot understand and/or communicate to give informed consent to give or decline a medical treatment, your medical provider must turn to someone else to make that decision. Washington has a statute that gives a list of people who can provide that consent. RCW 7.70.065 That statute states that members of the classes of people can provide such consent in the following order of priority: (i) The appointed guardian of the patient, if any; (ii) The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions; (iii) The patient's spouse or state registered domestic partner; (iv) Children of the patient who are at least eighteen years of age; (v) Parents of the patient; and (vi) Adult brothers and sisters of the patient. If the health care provider makes reasonable efforts to locate and secure authorization from a competent person in the first or succeeding class and cannot find that person, authorization may be given by any person in the next class in the order of descending priority. However, no person under may provide informed consent to health care: (i) If a person of higher priority under this section has refused to give such authorization; or (ii) If there are two or more individuals in the same class and the decision is not unanimous among all available members of that class. The people named in the statute are suppose to do what they believe the patient would have wanted if that can be determined. If they cannot determine that, then to do what they believe to be in the patient's best interests. For people who do not engage in advance planning this statute creates a number of pitfalls. Without a health care agent named in a proper durable power of attorney, many clients will not have surviving family in any of these categories so that their medical choices can only be made with the appointment of a legal guardian. The people listed in the statute may not be the right people to make choices for them, especially if they are not close to members of their family of origin or if they have very different opinions from them on issues surrounding health care. There may be more than one person in the relevant category who do not agree, that is common when parents, adult children, and siblings must make unanimous decisions. Even if every person in the highest category agrees, family members, friends, or other interested parties can always try to override that decision my seeking to be appointed as the person's guardian, which is what has happened in many of the highly publicized family fights over end of life issues in recent years. Because hospitals know that this can happen, some will want to wait to make decisions in cases without advanced planning until everyone with a possible interest agrees, this can lead to delays in providing or withdrawing care even in cases where no guardianship petition is ever filed. The decision maker(s) also may have no idea what the client would want them to decide. That can lead to them making the wrong choice or, even if they are making the right choice, experiencing real agony about not knowing that they are. These problems can best addressed by selecting a health care agent and appointing them in a Durable Power of Attorney for Heath Care and preparing an Advanced Health Care Directive, Advanced Mental Health Care Directive, or POLST as needed. If you would like more information on how the consent statute might work in your particular case, are having trouble getting a health care provider to honor your role in the statute, wish to file a guardianship because the statute is resulting in the wrong decisions being made, or you want to create a plan to avoid the problems described above, contact us for a free 1/2 hour consultation at info@phinneyestatelaw.com.  One of the most talked about choices a health care agent may have to make for someone unable to make their own medical choices is whether to keep a patient alive through artificial hydration and/or nutrition. If a person is unable to consume or keep down food and fluids they must be given liquids directly into their bloodstream and liquid nutrition needs to be put directly into their stomach through a feeding tube to keep them alive. This isn’t food and drink in the way that we normally experience it. Hospice workers report that when a person is dying, their organs shut down, and they stop feeling hungry or thirsty. Until that time, what makes a person feel thirsty is having a dry mouth, which is remedied by ice chips or other water in the mouth. IV liquid won’t prevent thirst and people on feed tubes rarely would feel hungry without. But these tools are necessary to keep them alive. While people often take a black and white approach to these tools, the reality is that people often make different choices about them depending on the circumstances. Most people, if otherwise healthy, would want IV fluid if they became dehydrated due to flu or other illness. Many would want both fluids and nutrition if they were in a coma that was potentially reversible at least for a few weeks to see if they would regain consciousness. Most of my clients indicate that they wouldn't want to be kept alive for years through these tools if they were in a permanent conscious condition. But even if the choice changes from condition to condition, I think it is helpful if the agent understand the choice is to prolong life or not prolong life and not a choice of leaving a patient thirsty or starving as they die.  We are pleased to announce the three new charities being added to our Charity Discount Program in 2012. The groups nominated and receiving the most votes by our facebook fans are:
 As part of our commitment to have a practice that matches our values and provides a way for clients to express theirs, Phinney Estate Law has established a charity discount program. Under that program, clients leaving gifts of $500 or more to our list of selected charities in their will or trust receive a 10% discount off of their estate planning fees. Current charities on the list include: Seattle Milk Fund, PAWS, Within Reach, and Food Lifeline. Each year we ask our clients and friends to nominate and vote on new charities to add to the list. To nominate a charity go to our facebook page and post the name of your nominee on our wall. We will be accepting nominations until February 14th. Our only requirements for nomination is that the charity match our firms values of peace, justice, community and family, equality, environmental stewardship, and service to children and vulnerable adults. On February 15th we will name our nominees and start accepting votes on Facebook. The winners will be added to our list on March 15th. Once a charity is added to the list they are not removed so you don't need to re-vote for any past winners. In addition to donations from clients, the selected charities are given three Planning Packages a year to use for auctions or other fundraising efforts, the option of free classes for staff, members, or volunteers, and free content on relevant issues to their charity for their website or newsletters. We are planning to add two more charities this year so we hope you will give us some great choices! | PEL Blog
This Blog is written by Seattle Attorneys Jamie Clausen & Michael Ballnik. ArchivesMay 2012 CategoriesAll |
RSS Feed