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.