Posts Tagged ‘dementia’

Jury Awards $1 In Freezing Death Of Demented Patient


Homer Cone suffered from dementia. As a result, he was placed in a nursing home in Missouri, run by national nursing home chain Beverly Enterprises. Apparently because of his confusion, he wandered out of the nursing home one winter day, got lost and died of hypothermia.

Mr. Cone’s daughter, Barbara C. Ragle, brought an action in Missouri Federal Court against Beverly Enterprises for its alleged negligence in allowing Mr. Cone’s death. The jury in the case found that Beverly Enterprises had been negligent, but that the damages for Mr. Cone’s wrongful death should be set at $100. Furthermore, ruled the jury, Mr. Cone was himself at fault, and his failure was responsible for 99% of the loss (his own death). Consequently, the jury awarded Ms. Ragle $1 for her father’s death.

Although the notion of finding a nursing home resident liable for his own confusion may at first seem completely out of line, there was evidence of Mr. Cone’s contribution to his own dilemma. Mr. Cone and his wife Ethel (who lived with him in the nursing home) deliberately removed a security bracelet that was designed to alert nursing staff of any attempt to leave the facility.

Ms. Ragle appealed to the Eight Circuit Court of Appeals, arguing that the amount of the judgment was grossly inadequate. She also argued that the jury should not have been permitted to find her father partially at fault for his own death.

Ms. Ragle first argued that the total damages of $100 were woefully inadequate. Her argument was based on the testimony of the investigating police officer responding to the emergency call on the morning of Mr. Cone’s death, coupled with the language of Mr. Cone’s death certificate (which starkly described his death as resulting from the fact that he “wandered out of nursing home in cold weather”). That, ruled the judges, was insufficient to show that the jury’s small damage award was “against the weight of the evidence”—the standard which Ms. Ragle was required to meet before a new trial could be ordered on damages.

Ms. Ragle also asked the judges to rule that a demented nursing home patient could never be responsible for his own injury or death, since he could not understand the nature or consequence of his acts. The court disagreed, however, observing that “mental infirmities exist in infinite degrees and with infinite levels and varieties of behavioral impairment.” Because of the variability of a demented patient’s level of understanding, the question of comparative fault should be left to the jury’s decision, and the Court of Appeals let stand the $1 award of damages against Beverly Enterprises. Ragle v. Beverly Enterprises, November 5, 1999.

Arizona Court Defers Decision On Georgia Man to Georgia


Sidney Head lived in Georgia with his wife, Martha. He had married Martha late in life, after the death of his first wife; he had four grown children from his first marriage.

Col. Head’s ability to care for himself began to slip and, a few months after his eighty-fourth birthday, Martha sought appointment as his guardian and conservator and placed him in a Georgia adult care facility.

Over several visits, Col. Head’s children became alarmed that the care he received in the Georgia care home was inadequate. They complained that his confusion worsened due to a lack of appropriate programs for demented patients, that his personal dignity was not respected, and that he was inappropriately medicated (primarily with Haldol) during his stay.

Sometime prior to Col. Head’s placement in the Georgia care home, and before the guardianship and conservatorship was initiated, he had executed a durable medical power of attorney naming one of his sons as agent. After reading Georgia law as permitting a health care agent to act even after the appointment of a guardian, his son took steps to secure the treatment and care he believed his father desperately needed.

First, Col. Head’s son transferred his father to a clinic in the Chicago area which specialized in the treatment of Alzheimer’s patients by injection of testosterone, pituitary growth hormone and placental gonadotropin. After a brief stay at that facility, Col. Head was transferred to a Tucson-area nursing home, where the hormone treatments were continued.

After Col. Head’s arrival in Tucson, several of his children sought appointment as temporary guardian. They alleged that, despite Martha’s appointment as guardian in Georgia, she had not acted in his best interests, and that an emergency existed requiring their appointment, to assure the nursing home that he would not be removed and to authorize the continuation of his treatment program.

Martha Head, for her part, objected to the Arizona courts assuming jurisdiction of the matter. She argued that the Georgia guardianship gave her authority to make medical decisions for her husband, and that any objections to her decisions should be dealt with in those Georgia proceedings. She sought dismissal of the Tucson petition and a return to the Georgia courts for resolution of the dispute.

While proceedings were pending in Arizona, both parties continued to press their respective positions in the Georgia court. Martha Head secured an order directing that she could “exercise the powers” of Col. Head with respect to the power of attorney (in other words, revoke or restrict the appointment of Col. Head’s son as agent). The children, meanwhile, secured a Georgia court order compelling Martha Head (as conservator) to pay for the expensive hormone treatment program. Each party appealed the rulings in favor of the other.

Finally, Arizona’s court ruled on the question of jurisdiction. In a short ruling, Pima County Superior Court Judge William Sherrill (in one of his last rulings as chief Probate Judge for the Tucson area) ruled that “[b]ecause Mr. Head has a guardian and conservator appointed in the State of Georgia who is able to act on behalf of Mr. Head, this court finds no emergency necessitating its exercise of jurisdiction.” Furthermore, Judge Sherrill found that to relitigate any of the issues currently in controversy in Georgia “would be disrespectful to a competent court of a sister state.” In Re: Sidney A. Head, Sr., January 10, 1997.

Col. Head’s case was returned to Georgia for further resolution, even though he remains (for the moment, at least) in Arizona. While it may not be the final answer, it suggests that another state’s guardianship order will be respected in Arizona.

Long Term Care Insurance: Who Needs It? Which Policy?


With nursing home costs approaching $40,000 per year for most residents, the government’s Medicaid program has for decades been the “safety net” for families with long-term care needs. In recent years, escalating Medicaid costs and increases in the portion of national nursing home bill paid by the program have resulted in Congressional efforts to reduce Medicaid eligibility and coverage. Prudent elders should be considering other ways to ensure that nursing home stays can be paid for if needed.

A relative handful of individuals have long-term care available from religious or service group affiliations. Another small portion of the population can rely on government programs other than Medicaid, but for most elders the only alternatives are to accumulate substantial personal wealth (a common goal, though sometimes difficult to realize) or purchase long-term care insurance (LTCI).

A recent review of LTCI purchasing strategies by Elder Law Forum (a newsletter published by Legal Counsel for the Elderly, Inc., and sponsored by AARP) points out some of the considerations for typical buyers. The review makes several points for the “typical” LTCI buyer:

  • About half of 65-year-old women and a third of the men will spend some time in a nursing home.
  • Most nursing home stays will be short, with the median length of institutionalization being slightly less than one year.
  • LTCI premiums currently average about $1,000 per year for 60-year-olds, and rise to $1,500 for 65-year-olds and $2,000 for 70-year-olds.

If you (or a relative or client) are concerned about long-term care costs, some pertinent questions to consider include:

  • When should you buy? The average age of new policyholders is currently 67. Many employers now offer group plans, and a few younger people may buy policies. But for most people, waiting until age 60 to make the purchase is probably reasonable.
  • Should both a husband and wife buy policies? In many cases, one spouse or the other may be uninsurable due to illness or age. The “well” spouse should particularly consider LTCI, since she (most commonly) is likely to survive the “ill” spouse, and therefore have no spouse to care for her. Of course, this is another way of saying that the well spouse is likely to spend some considerable time providing care for the ill, uninsurable spouse, as well.
  • Does family history matter? If a potential LTCI buyer has a family history of strokes, high blood pressure, dementia, Parkinson’s or other conditions likely to require long-term care, insurance is more strongly indicated. Such persons should make the initial purchase at younger ages, since the onset of disability will usually make them uninsurable.
  • Does net worth make a difference? Couples with a net worth of less than $100,000 (not counting the family home), and individuals worth less than $50,000, may not need to consider LTCI, since (current) Medicaid rules will permit them to receive government assistance within a year or two of nursing home admission. Prospective LTCI buyers with large estates may not need the insurance, particularly if their estates generate $40,000 in annual income over and above their (or their spouse’s) other living expenses. In other words, LTCI is primarily of interest to the middle-class elderly.
  • How important are individual policy provisions? Very. Some policies provide excellent coverage for home health care, while others do not; a policy without home care provisions might unnecessarily force the owner into an institution.

A checklist for comparison shoppers can help frame some of the issues. For a helpful checklist, contact FLEMING & CURTI at the fax, e-mail or street address below.
330 N. Granada Avenue, Tucson, Arizona 85701
520-622-0400 / FAX: 520-203-0240

Health Care Agent Overruled By Temporary Guardian


Elma Mason, a 77-year-old Massachusetts woman, suffered from congestive heart failure, anemia, diabetes, pulmonary hypertension and mild dementia. She was being treated in Massachusetts General Hospital, and her treatment team agreed that she should not be treated aggressively in the event of cardiopulmonary arrest.

Ms. Mason’s son Joseph was actively involved in his mother’s care. In fact, in the view of the hospital, he was too actively involved. Hospital personnel complained that Joseph had disrupted the hospital’s schedule, abused the staff and repeatedly claimed that the staff had neglected and mistreated his mother. The hospital sought to have a disinterested person appointed as guardian for Ms. Mason.

After the appointment of the hospital’s nominee on a temporary basis, the new guardian consented to entry of a “do not resuscitate” order for Ms. Mason. Joseph appealed the guardian’s decision, and produced three different documents, apparently signed by Ms. Mason, naming Joseph as the person to make medical (as well as financial) decisions for her. Joseph argued that the temporary guardian should have no power to make medical decisions in the face of the medical powers of attorney.

The Massachusetts Court of Appeals agreed that the guardian could be permitted to place the “do not resuscitate” order. The court specifically found that the evidence showed Joseph was “incapable of making health care determinations based upon a true assessment of Elma’s best interests.” Even assuming that the health care powers of attorney were valid, the temporary guardian’s decisions would stand. In Re Guardianship of Mason, September 17, 1996.

The Mason case illustrates a common potential for conflict. With the growing prevalence of advance directives generally, and durable health care powers of attorney in particular, what should health care providers do when family members and agents do not appear to be acting in the “best interests” (a phrase admittedly open to interpretation) of the patient? More importantly, what should they do when the family member or agent is making decisions different from those directed in the living will or other advance directive?

Arizona law is very clear. Health care providers are required to comply with the stated wishes of patients (as set out, for instance, in living wills). Surrogates (including both agents and family members) are also required to follow the patient’s wishes. Where surrogates choose not to follow the instructions of the patient, there is provision for a relatively simple and speedy court proceeding to determine the patient’s wishes and direct the surrogate to act accordingly.

Are health care providers required to take every such concern (or dispute) to court? No, but providers should be aware of their ultimate duty to carry out the patient’s wishes regarding treatment. If family members persist in their refusal to act according to an advance directive after counseling, negotiation, involvement of ethics committees and good medicine and social work practice, legal action may be required.

Ms. Mason’s case implies a subtly different question. What should the health care provider do when there is not clear direction from the patient, but the surrogate is acting inappropriately? Of course, disruption and abuse may be in the eyes of the beholder, and health care providers should be slow to try to overrule family wishes. But when there is no clear expression of the patient’s wishes, the treatment team must look to the patient’s “best interests.” If family members are acting contrary to that principle, once again court action may be the only option.

Arizona law on the duties of health care providers to follow surrogates’ instructions can be found at Arizona Revised Statutes ’36-3204.

Frequency of Dementia Varies By Age, Diagnosis, Placement

JULY 15, 1996 VOLUME 4, NUMBER 3

The common usage of “dementia” usually refers to loss of intellectual functioning or diminished mental capacity. Frequently, the term is used to describe any of a wide variety of illnesses or conditions, without distinguishing among the possible causes.

In a similar way, “Alzheimer’s” is commonly used to describe almost all demented individuals, regardless of the actual reason for the diminution of capacity. It is commonly understood that Alzheimer’s Disease is a diagnosis of exclusion; other than autopsy, it is usually impossible to definitively diagnosis Alzheimer’s, and the diagnosis is reached by excluding all other possible diseases.

For many purposes, the difference between a diagnosis of Alzheimer’s and, for example, vascular dementia is unimportant. Most dementias are irreversible, and there is little evidence to suggest that the progress of many dementing illnesses can be slowed. Still, it is both important and interesting to know what different illnesses might cause dementia, and the relative frequency of each.

In their 1992 book “Dementia: A Clinical Approach,” medical researchers Jeffrey L. Cummings and D. Frank Benson survey the existing literature about dementia. Among demented patients, the frequency of each cause varies according to the researcher. Cummings and Benson caution that the estimates of Alzheimer’s disease, in particular, are almost certainly overstated, but the research suggests the following frequencies:

  • Alzheimer’s Disease–25-50%
  • Vascular (multi-infarct) Dementia–10-25%
  • Depression and other psychiatric disorders–10-20%
  • Alcoholic Dementia–2-12%

Other causes, each accounting for between one or two percent and ten percent of all dementias, include metabolic conditions, infections, toxic conditions, Huntington’s and Parkinson’s diseases and other, less frequent causes.

Clearly, Alzheimer’s Disease is the most common dementing condition, but other causes collectively account for more dementia. The very fact that Alzheimer’s is a diagnosis of exclusion operates to inflate its reported frequency, since unidentified dementias will usually be lumped into that category.

Cummings and Benson also report several studies about the frequency of dementia in various groups. Among those 65 or over, approximately 6% can be expected to suffer from severe dementia, and another 10% to 15% evidence mild to moderate impairment.

The frequency of dementia, not surprisingly, increases with age. The percentage of demented individuals can be expected to double for each five-year increment in age, so that about 20% of those over age 75 will show severe symptoms of dementia.

Dementia should be expected to appear more frequently in more restrictive medical facilities, and that expectation is borne out by the research. About 54% of state hospital patients demonstrate severe dementia, while 30% of nursing home residents and 15% of retirement community residents are severely demented. Mild dementia (or worse) can be expected in 94% of state hospital patients, 87% of nursing home residents and 80% of retirement community residents.

What do these figures mean for the treatment or care of demented patients? The high frequency of dementia other than Alzheimer’s Disease suggests the importance of differential diagnosis of dementing illnesses. While most dementia is irreversible, some (such as metabolic conditions and infection) may be treated, and the progress of others (notably vascular dementia) may be slowed by drug therapy and/or diet. And diagnosis and treatment regimens become more important with age and type of treatment facility.

Nursing Home Resident Is Not Liable for Injuries to Nurse

MARCH 18, 1996 VOLUME 3, NUMBER 38

Roland Monicken resided in the St. Croix Health Care Center, a Wisconsin nursing home. Mr. Monicken suffered from dementia, and had a history of combativeness and disorientation. On one occasion, head nurse Sheri Gould found Mr. Monicken in another resident’s room and attempted to return him to his own room. Unfortunately, Mr. Monicken resisted Ms. Gould’s attempts and apparently struck her or pushed her down, injuring her.

Ms. Gould brought an action against Mr. Monicken and his wife. Mr. Monicken’s homeowner’s insurance company defended, arguing that he could not be held liable for his actions because of his dementia.

After the evidence had been presented to the jury, the trial judge instructed jurors to ignore Mr. Monicken’s mental condition in determining whether he should be held liable. The jury subsequently awarded Ms. Gould damages against Mr. Monicken’s insurance company.

The Wisconsin Supreme Court disagreed with the trial judge’s view of the law. The Supreme Court noted the long-standing rule used by the trial court; since at least 1616, most English (and, subsequently, American) courts have agreed that mental disability is no defense to a personal injury action. The reasons for holding disabled individuals liable for their actions include:

  • As between two “innocent” persons (the mentally disabled person and the injured person), it is better to charge damages to the person who caused the injury.
  • If disabled individuals are held liable, family members will exercise more caution to restrain them and monitor their behavior.
  • Permitting defendants in civil actions to, in effect, plead “insanity” would encourage them to feign illness to avoid liability.

Despite three centuries of precedent, the Wisconsin Supreme Court decided that the rationale for imposing liability did not apply to Mr. Monicken. Analyzing the three principles as they applied to Ms. Gould’s injury, the Court noted:

  • Ms. Gould was not the kind of “innocent” victim imagined by previous cases. She worked in a facility devoted to treating disabled individuals, and was well aware of the risks associated with the care, specifically, of Mr. Monicken. Placing the duty of care on Mr. Monicken was, therefore, too great a burden, since his disability was the precise reason for his institutionalization.
  • Mr. Monicken’s family could not be expected to do more to contain his violence. In fact, placement in Ms. Gould’s care was precisely the sort of precautionary measure they should be encouraged to take.
  • While the Court was concerned about malingering defendants, it seems unlikely that Mr. Monicken would be willing to pretend dementia for years in order to avoid civil liability.

As a result, Ms. Gould’s lawsuit against Mr. Monicken was thrown out. Wisconsin’s Supreme Court has carved out a narrow exception to the rules governing liability, but one which could have widespread effect in nursing and similar facilities. Gould v. American Family Mutual Insurance Co., January 30, 1996.

While Arizona has not expressly adopted the new Wisconsin approach to liability in nursing homes, the logic seems compelling. A similar result might well be expected if and when Arizona’s courts are asked to address the question.

ECT Treatment Considered by Courts In Two States


Two recent cases involved the availability and use of electroconvulsive therapy (ECT), with different results. Since Arizona appeals courts have not ruled on the use of ECT, the different conclusions of these recent decisions may be instructive in analyzing the use of ECT in Arizona.

ECT is, as most clinicians know, one of the most reviled and misunderstood therapies available to modern psychiatric medicine. Although most lay people believe they have some familiarity with ECT, few know more than the impressions they gained from such depictions as One Flew Over the Cuckoo’s Nest. While ECT is utilized as a treatment of last resort in most cases, it may be tremendously effective for dealing with some illnesses, particularly depression, after conventional drug therapy has failed.

ECT has been legally banned in some localities, and has been the subject of public demonstrations and intense political pressure in many jurisdictions. As administered today, however, the procedure is relatively safe and frequently offers relief where no other therapy is helpful.

In Illinois, Lucille Austwick admitted herself to a psychiatric unit specializing in geriatric patients. She was diagnosed as suffering from chronic depression and dementia. Physicians recommended that she be treated with ECT, insisting that her life was otherwise in danger. Her guardian (the Illinois equivalent of the Public Fiduciary’s office) sought emergency court approval for the treatment.

The trial court hearing Ms. Austwick’s case found that she lacked capacity, that there was no evidence whether she would have approved the ECT if she were able to communicate, and that the treatment was in her best interests. On review, the appellate court agreed that she lacked capacity and that the question should be whether the treatment was in her best interests. Citing the dangerous nature of ECT and specifically finding ambiguity in one physician’s testimony, however, the appellate court found the trial court’s decision “manifestly erroneous” and barred the ECT treatment. Austwick v. Legal Advocacy Service, Ill. App. Ct., 9/7/95).

In Wisconsin, meanwhile, in a case strikingly similar, the court reached the opposite conclusion. Ruth E.J. was severely depressed, and physicians told her guardian that ECT was the only hope for treating her depression. Wisconsin law dictates that ECT may be administered only with the patient’s “express and informed consent,” notwithstanding that Ruth E.J. was incompetent to give such consent.

Ms. E.J.’s guardian, like Ms. Austwick’s, brought an action for court approval of the ECT. The Wisconsin court, however, reacted quite differently; finding that the statute as applied to Ms. E.J. was unconstitutional, the court ruled that ECT may not be withheld from a patient simply because they lack capacity to give specific consent. In re Guardianship of Ruth E.J. v. Ruth E.J., Wis. Ct. App., 9/6/95).

Recent Court Cases

MAY 15, 1995 VOLUME 2, NUMBER 45

Court decisions from other states may give only indirect guidance on Arizona legal problems. Two recent cases suggest possible concerns for advocates for the elderly.

Nursing Home May Not Exclude Aggressive Patient

Fair Acres Geriatric Center, a county-operated intermediate care nursing home in Pennsylvania, decided it could not admit Margaret Wagner. Ms. Wagner was a demented patient inclined to screaming, agitation and aggressive behavior. Fair Acres decided that Ms. Wagner’s admission would have violated its policy against admitting psychiatric patients.

Ms. Wagner’s attorney argued that the federal Rehabilitation Act of 1973 required Fair Acres to admit her. Since Ms. Wagner was otherwise qualified for admission, Fair Acres’ denial was based on her disability. And since Fair Acres received federal funds, the Rehabilitation Act prohibited the facility from discriminating against Ms. Wagner.

The Federal Court of Appeals upheld the jury verdict requiring Ms. Wagner’s admission. The court specifically found that Fair Acres had failed to show that Ms. Wagner would impose an undue burden on the facility, despite evidence that she was “a challenging and demanding patient.”Wagner v. Fair Acres Geriatric Center, 3rd Circuit Ct. Of Appeals, March 15, 1995.

OBRA Recovery Statute Not Retroactive

Arkansas (like Arizona) adopted a new estate recovery program after the federal OBRA ’93 requirement that states do so. OBRA was effective August 13, 1993; Arkansas’ statute was effective August 15, 1993.

When Helen H. Wood died in October, 1993, the Arkansas Medicaid agency made a claim against her estate for the cost of her care from December, 1991, until her death. Her estate argued that the estate recovery program could not be applied retroactively, and that only the cost of the last two months of her care could be recovered.

Arkansas’ Supreme Court agreed with the estate, finding that the statute created a new legal right and could not be extended back in time. (Arizona has not made any effort to make its estate recovery program retroactive, but this case suggests that any such attempt would fail.) Estate of Wood v. Arkansas Dep’t of Human Services, Arkansas Supreme Court, March 6, 1995.

Recent Court Cases

MARCH 13, 1995 VOLUME 2, NUMBER 36

Recent court decisions of interest to those dealing with the elderly:

Care Home Liable for Condition of Resident

Sylvia Kyro, a demented patient, was a resident at Country Home Care in the Reno, Nevada, area. After she had been at the home for about two years, she became bedridden. Four months later, in April, 1993, she was taken to an area hospital.

At the hospital, Ms. Kyro was found to be malnourished and suffering contractures of both legs. The contractures were determined to be the result of lack of movement and muscle degeneration from inadequate blood circulation.

At the time of admission hospital staff also found infected bedsores on Ms. Kyro’s hips, knees and elsewhere. The most serious sores were Stage IV–the most advanced categorization.

Ms. Kyro’s guardians sued the care home, alleging that the home should have taken steps to transfer Ms. Kyro to a higher level of care when she became bedridden. The guardians also alleged that the home failed to notify Ms. Kyro’s physician of her worsening condition, which would have been a violation of Nevada licensing regulations.

In November, 1994, Country Home Care settled the claims. The amount of the settlement: $410,704. Kyro v. Frederick d.b.a. Country Home Care, (Washoe County District Court, Nevada, November 10, 1994).

Veteran’s “Aid and Attendance” Reduces Medicaid

Roland Kreuger, a North Dakota nursing home resident, was a veteran. In 1992 the Veteran’s Administration increased his “aid and attendance” payment. Since his care was being subsidized by Medicaid, his “turnover” amount (the amount he had to contribute to his nursing home care each month) was increased by the same dollar amount, resulting in no net increase to Mr. Kreuger.

Mr. Kreuger attempted to transfer his aid and attendance increase to his wife rather than use it to pay a portion of his nursing care. His argument (which was successful in the North Dakota trial court): federal law expressly provides that aid and attendance is not “income” and therefore not available for calculation of the turnover amount.

The North Dakota Supreme Court, however, reversed the lower court holding. Since the aid and attendance allowance was intended to provide care for veterans, and since Medicaid does not provide similar care when other payors are liable to do so, aid and attendance is a third-party program legally liable for the care before Medicaid makes a contribution. Kreuger v. Richland County Social Services (North Dakota Supreme Court, December 20, 1994).

The “Vanishing” Income Cap


Several recent cases from courts around the country should be of interest to those who deal with the elderly:

Incompetent Patient Not Liable

Roland Monicken, a Wisconsin nursing home resident, struck Sheri Gould, a nurse in the Alzheimer’s ward where Monicken was cared for. Gould was injured, and brought suit against Monicken and his insurance company.

The jury found Monicken negligent and awarded damages. On appeal, the Court of Appeals determined that a person in Monicken’s condition could not be negligent because of his dementia. The Court directed the trial judge to determine whether Monicken actually understood or appreciated the consequences of his actions. Gould v. American Family Mutual Insurance Co., Wisc. Court of Appeals, September 27, 1994.

Jointly Owned Property May Not Be Available

Laimomi Golis, a Hawaii resident, owned a one-fourth interest in real property. The Hawaii Medicaid agency valued her interest by dividing the assessed value by four; the result was that Golis was ineligible for Medicaid.

Golis brought a class action in Federal Court. She alleged that Hawaii’s method of valuing fractional interests violated federal law. The Court agreed, finding that her interest was worthless, since there was evidence that no one would purchase her fractional interest at any price. The Court disagreed with Golis’ additional argument that Medicaid was required to give her an open-ended opportunity to sell the property; Medicaid is permitted to revalue her interest in conformance with federal law.Golis v. Rubin, Hawaii District Court, July 20, 1994.

Lawyer Liable for Mistake

New Hampshire lawyer Christopher Calivas wrote a will for Robert Simpson in 1984. Unfortunately, the will contained a drafting ambiguity which resulted in an interest in 100 acres of land and buildings being distributed to someone other than Simpson intended. His son, who was supposed to receive the land, sued Calivas.

Although Calivas did not represent Simpson’s son, and therefore did not owe him any duty directly, the New Hampshire Supreme Court found that he was liable. The Court noted that the “risk” to Simpson’s son was “apparent” at the time of the drafting. Simpson v. Calivas, New Hampshire Supreme Court, September 21, 1994.

Deed Signed by Incompetent Cancelled

Glenn Bowen talked Delaware resident Raymond Barrows into selling him Barrows’ investment real estate under an arrangement whereby he paid only $100 down and carried the balance for an indefinite term with no interest. The Delaware Court, finding that Barrows lacked capacity to contract, simply voided the entire transaction. The Court particularly focused on the terms of the note in finding the sale invalid. Barrows v. Bowen, Del. Chancery Ct., May 10, 1994.

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