Posts Tagged ‘Jack Kevorkian’

Georgia/Arizona Guardianship Dispute: An Update


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.

Major New Developments In Physician- Assisted Suicide

MARCH 11, 1996 VOLUME 3, NUMBER 37

Although physician-assisted suicide has been much discussed in recent years, few legal developments have advanced the state of the law since Oregon voters approved an initiative measure in November, 1994. That changed dramatically this week, with two major developments. On Wednesday, a Federal Appeals Court ruled that Washington State’s ban on assisting with suicide is unconstitutional, at least as applied to “physician-aid-in-dying.” Then on Friday, a Michigan jury found Dr. Jack Kevorkian not guilty in his second criminal trial for allegedly assisting terminally ill patients to commit suicide.

Although the Kevorkian case is probably better-known, the Federal Court of Appeals decision is of far more significance, particularly in Arizona. The case, Compassion in Dying v. State of Washington, was decided by the Court of Appeals responsible for reviewing Arizona, California, Washington, Oregon, Nevada, Idaho and Montana laws. Since it is based on the U.S. Constitution, the case stands as precedent for all those states, at least until the U.S. Supreme Court rules otherwise.

The Compassion in Dying case began after Washington voters turned down an initiative measure on physician-assisted suicide. In spite of the election results, a group of Washington doctors formed Compassion in Dying, a non-profit group, to help terminally ill patients effectively and painlessly end their lives.

Compassion in Dying, its doctor members, and three terminally ill patients sued in Federal Court to invalidate Washington’s criminal statute on assisting suicide. The patients, all three of whom have since died, are described in the Court of Appeals decision by pseudonyms:

  • Jane Roe, 69, a retired pediatrician. Ms. Roe had suffered from cancer for six years, and the disease had metastasized throughout her skeleton by the time the lawsuit was filed. She was in constant pain, and suffered from swollen legs, bedsores, nausea, vomiting, impaired vision and other effects of her illness.
  • John Doe, 44, an artist suffering from AIDS. Mr. Doe had been diagnosed three years earlier, and had lost 70% of his vision, suffered from pneumonia, skin and sinus infections, seizures and extreme fatigue.
  • James Poe, 69, a retired sales representative suffering from emphysema. Mr. Poe was connected to an oxygen tank at all times, constantly felt he was being suffocated and took morphine regularly to calm his panic reaction. Like the others, he was in the terminal phase of his illness.

The Court, in an eloquent and thoughtful decision, found that the U.S. Constitution permits a competent terminally ill patient to have aid from a physician in ending his or her life. Washington’s statute (which is nearly identical to Arizona’s) is therefore invalid as applied to physician-aid-in-dying.

In reaching its conclusion, the Court assayed the history of suicide in ancient times and modern opinion. According to the Court, ancient Greeks, Romans and Christians viewed suicide as acceptable, particularly where the victim was ill and in pain. And public opinion polls show a dramatic shift on the subject in recent years: while 37% of respondents favored permitting doctors to assist terminally ill patients to commit suicide in 1947, more than half were in favor in a 1973 poll. By 1983, 63% favored physician-aid-in-dying.

Although there is no guarantee that the U.S. Supreme Court will rule on the question, an appeal to that court is expected.

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