Posts Tagged ‘In Re: Sidney A. Head Sr.’

Georgia/Arizona Guardianship Dispute: An Update

MARCH 3, 1997 VOLUME 4, NUMBER 35

Several weeks ago, Elder Law Issues told the story of Sidney Head, a Georgia resident moved to Arizona by his son, using a health care power of attorney, despite his wife having been appointed his guardian in Georgia (see Elder Law Issues Vol. 4, No. 32). In that report, we explained that the Arizona courts had declined to get involved in the dispute, referring the matter to Georgia courts even though Col. Head continues to reside in a Tucson-area nursing home.

In that Georgia court proceeding, Col. Head’s wife (and guardian) objected to the relocation of Col. Head by his son (and health care agent). His son argued that his actions were not prohibited by Georgia law, and that he had acted in his father’s best interests. Col. Head’s son pointed to the allegedly inadequate care he received in a Georgia nursing home, and to his wife’s failure to respond to complaints from Col. Head’s children.

The Georgia court has now agreed with the son, and ordered that Col. Head may remain in the Tucson nursing home. In making its decision, the court relied on evidence that a Georgia ombudsman found that Col. Head received improper hygiene care, was not released from physical restraints for even short periods, and was not adequately hydrated. Based on the shortcomings of Col. Head’s Georgia placement, and the particular language of Georgia law regarding health care powers of attorney, the court found that Col. Head’s son/agent acted appropriately and ordered his wife/guardian to acquiesce in and pay for the placement (from Col. Head’s funds).

Col. Head’s situation was potentially complicated by the fact that his son had also arranged for a controversial and expensive treatment regimen. Col. Head receives large doses of testosterone, pituitary growth hormone and placental gonadotropin by regular injections. Experts procured by the guardian expressed concern that the treatment was unproved, potentially dangerous and very expensive. The Georgia court, however, was persuaded by the affidavits of the physicians involved in Col. Head’s treatment to the effect that his condition has improved since removal from Georgia. His guardian was ordered to pay for the continuing injections. In Re: Guardianship of Head, Jackson County, Georgia Superior Court, February 21, 1997.

Col. Head’s case turns at least partially on the specific language of Georgia’s statute, which expressly provides that appointment of a guardian does not override a prior valid health care power of attorney. In Arizona (and many other states) the law is less than clear about the relationship between guardians and health care agents; the results might differ in each state.

Col. Head’s legal problems also point out the growing likelihood of interstate guardianship disputes. His care has been the subject of two separate court proceedings, and it would not be difficult to imagine the involvement of more states. Recent news stories about a California man transported to Michigan (allegedly to meet with Dr. Jack Kevorkian) point out the growing potential for interstate guardianship disputes. Few states have adopted express rules for dealing with these kinds of problems, and legal experts disagree about the validity of out-of-state guardianship orders and the interplay of guardianship and powers of attorney.

Arizona Court Defers Decision On Georgia Man to Georgia

FEBRUARY 10, 1997 VOLUME 4, NUMBER 32

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.

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