APRIL 8, 1996 VOLUME 3, NUMBER 41
Stories about relatives and friends taking advantage of the elderly are widespread. Several cases reported in Elder Law Issues involve courts setting aside transfers by vulnerable adults to caregivers, family members or others. But what about the capable adult who, though elderly, truly wishes to make a gift?
Ohioan Harold Hawkins was diagnosed as suffering from Parkinson’s disease ten years before his wife’s death in 1991. After her death, Minnie Nash and her husband Ples, friends of the Hawkins’, moved in with Mr. Hawkins to help take care of him.
Nearly from the beginning, Hawkins and the Nashes had an understanding about the assistance. Mr. Hawkins would provide a home for the three of them, Mr. and Mrs. Nash would provide care for Mr. Hawkins and necessary upkeep and repairs, and Mr. Hawkins would transfer his interest in the property to the Nashes. In March, 1992, Mr. Hawkins signed a power of attorney naming Mrs. Nash as his agent, and a month later he quit-claimed his home to the Nashes. At about the same time, he also changed the beneficiary on his VA life insurance to name the Nashes.
Mr. Hawkins died a little more than a year later. His sister, Clover Elliott, brought an action to set aside the transfers and to recover the property and VA insurance benefits.
Many cases establish the principle that such transfers are suspect, based on the “confidential relationship” between Mr. Hawkins and Mrs. Nash. In this case the trial judge acknowledged that the Nashes had the burden of proving the transfers valid. Still, the court noted that they could show Mr. Hawkins knew what he wanted to do and acted out of his own volition.
At trial, the Nashes introduced evidence that Mr. Hawkins was lucid and alert right up until his death. The trial judge ruled (and the Court of Appeals later agreed) that the Nashes had shown “competent and credible evidence showing the quit-claim deed and the VA Change of Beneficiary Form were executed pursuant to decedent’s declarations and wishes.” The Nashes prevailed, and Mr. Hawkins’ wishes were upheld. Elliott v. Hawkins, Ohio Court of Appeals, December 28, 1995.
Perspectives on Death and Dying
According to a recent article in the Journal of the American Medical Association, different ethnic groups may have distinctly different views of medical care issues at the end of life. The article reports on a University of Southern California of 800 elderly patients.
Study results indicate that immigrants from South Korea and Mexico are particularly likely to differ from the more common views of European-Americans and African-Americans. While the latter groups (and the legal system) focus on a patient self-determination model, the immigrant groups were much more likely to rely on family consensus and less inclined to permit patients to make their own decisions.
A second study reports on Do Not Resuscitate orders among terminally ill AIDS patients. Perhaps surprisingly, the study reveals that about 2/3 of such patients would want to be resuscitated. About half of even those who rated their own prognosis as poor wanted resuscitation.