Posts Tagged ‘Journal of the American Medical Association’

Lifetime Transfers By Elderly Patient Upheld After Death


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.

Patient’s Treatment Wishes Usually Ignored, Study Says


A disturbing new study calls into question the very basis for patient’s advance directives. According to researchers, doctors are likely to honor patients’ about treatment options only in about half of all cases.

The $28 million study, funded by the Robert Wood Johnson Foundation and published in the Journal of the American Medical Association, also found that efforts to increase doctors’ understanding of individual patients’ wishes had no positive effect on the problem. While the study did not directly address living wills or durable powers of attorney for health care, the results call into question the value of such directives in the real world.

Researchers interviewed hospital patients at six medical centers around the country to find out whether they would want to be resuscitated in the event of cardiopulmonary arrest. Nearly a third declined CPR, but fully 80% of doctors either misunderstood or ignored their patients’ wishes. The result for half of the patients; although they refused CPR, their hospital records indicated that they were to receive such treatment in the event of an attack.

Even in those cases where doctors correctly understood their patients’ wishes, the delay in securing “no code” orders in medical charts was unreasonably long. The average length of time between the request for a “no code” order and its insertion in medical records varied by facility, but the most prompt hospital averaged 22 days; the least prompt took, on average, 73 days before charting the patient’s wishes.

Perhaps the most disturbing element of the study emerged during its second phase. Researchers utilized specially trained nurses to document the patients’ wishes and estimate their prognoses for doctors (using specially designed computer software). The result of this expensive intervention: no improvement in the rate of compliance with patients’ wishes.

At the same time the study reviewed the circumstances of death for those patients who died in the facilities. Half were found to have died in moderate to severe pain and half were receiving mechanical ventilation for at least eight days at the end of life. Neither result changed after the intervention of the specially trained nurses.

The same JAMA issue included a number of commentaries on these striking study results. Observers suggested that the entire medical system is constructed to promote disregard for patients’ wishes not to be treated. One commentator noted that doctors usually have a financial incentive to treat patients aggressively. Another observed that the best course for patients and their families is to aggressively insist on their preferences.

While the study did not assess the value of advance directives, one conclusion seems inescapable. While doctors may ignore the wishes expressed in a living will, naming an agent for health care decision-making should help produce compliance with patients’ instructions. But no one should assume that doctors will determine and follow patients’ wishes in most cases.

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