Posts Tagged ‘Rasmussen v. Fleming’

Developmentally Disabled Man Dies Before Court Decides His Fate


Though once viewed as slightly out of the mainstream of American thought, the “right-to-die” movement has become widely accepted today. Few would argue with the notion that a competent patient has the right to refuse life-sustaining treatment, even when the medical community collectively believes that the treatment should continue. Just this week, Rochester, New York, resident Bill White ordered that his ventilator be disconnected after 32 years; though officials were initially uncertain how to respond, after a quick legal review Mr. White was permitted to make the decision for himself. He died last Friday.

Mr. White was mentally competent at the time he made his decision. A more difficult question arises where the patient is not currently competent, but left an advance directive (a living will, or a health care power of attorney). Interpreting the directive, and trying to determine what the patient would have wanted in the present circumstance, can present legal, ethical and emotional challenges.

More difficult still is the dilemma posed by the patient who never was competent to express his or her wishes. In the case of a patient who has been developmentally disabled since birth, for example, should the fact of that disability compel a decision to aggressively treat every illness? Is it ever permissible to disconnect life-sustaining treatment from the never-competent patient? If so, how should the decision be made?

These are the questions that faced officials in the case of Matthew Woods. The 54-year-old Kentucky resident had a tested IQ of 71, and had resided in state facilities since age 18. His parents were deceased, and his two closest relatives were a brother and sister; his brother was not closely involved in his care and his sister resided in a Kentucky nursing home.

Mr. Woods was asthmatic, and was on his way to treatment at the University of Kentucky when he suffered a cardiopulmonary arrest in April, 1995. He suffered irreversible brain damage, and was in a permanently unconscious state, residing in another hospital.

Mr. Woods had never been able to tell anyone how he would want to be treated, and family was not available to help make the decision. Did that mean that he must be kept alive as long as possible on a mechanical ventilator?

The Kentucky court considering that question decided that it was permissible to withdraw the ventilator support, and Mr. Woods’ court-appointed guardian ad litem appealed. Ironically, Mr. Woods died (of “natural causes”) while the appeal was pending, but the Kentucky Court of Appeals nonetheless rendered its decision, finding that a guardian has the power to withdraw life-sustaining treatment even in the absence of any indication of the ward/patient’s actual wishes. Woods v. Commonwealth, July 30, 1999. The opinion was later withdrawn when the Kentucky Supreme Court accepted jurisdiction of the appeal. (Editor’s Note: the Kentucky Supreme Court did not rule until August, 2004. See Elder Law Issues for September 13, 2004, for an update.)

Arizona courts would reach the same result. In fact, the Kentucky case relies heavily on the logic of the leading Arizona case on this question, that of Tucsonan Mildred Rasmussen. Ms. Rasmussen was not developmentally disabled, but had never given any indication of her wishes regarding treatment. When she later was diagnosed as being in a persistent vegetative state, her guardian was authorized to withdraw the artificial tube feedings that kept her alive. Just as in the case of Matthew Woods, the final irony was that Mildred Rasmussen died while courts were still considering her legal fate.

Population Trends Among The Elderly In America


The “Aging of America” is a familiar theme. Almost everyone knows that our population is growing collectively older, and that seniors are the fastest growing segment of our society.

Aging Americans are not monolithic, however. A number of demographic trends appear among the increasing numbers of the elderly.

The dimensions of the change in society are astonishing. Although only one in twenty-five Americans was over the age of 65 at the turn of the last century, one in eight are at least that old today. Shortly after the next turn of the century, “Baby Boomers” will begin to join the ranks of the elderly, and one in five Americans will be elderly by the time the last Boomers turn 65 in the year 2030.

Older Americans will be increasingly diverse in coming decades. Although about 10% of seniors are members of at least one minority group today, that percentage will double in 50 years. Hispanics, for example, will increase from 4% of the elderly population to 16%. But the biggest increases in the elderly population will continue to be among the oldest Americans.

Since 1960, the country’s population has increased by about 45%. The number of over-65 Americans doubled in the same period. But the over-85 crowd has almost quadrupled in the same period. And those trends will continue; by 2050, the number of over-85 Americans will increase by over 500%, and the ratio of over-85s to over-65s (currently about 9%) will triple.

Women live longer than men and so make up a majority of the elderly. In the first five years after age 65, women outnumber men 6 to 5; among 85-year-olds the ratio is 5 to 2. And women are more likely than men to require assistance with activities of daily living, and to live in nursing homes.

The “old old” are more likely to need help. About 1% of those aged 65 to 74 live in nursing homes today; among those over age 85, that figure increases to 25%. Half of the “old old” need help with activities of daily living, while only 9% of those 65 to 74 require assistance.

As the population ages, demands for nursing care and nursing home placements should be expected to increase, both in absolute terms and as a proportion of all health care needs and spending.

Q & A

Q: The attending physician for one of our nursing home patients has recommended both “Do Not Resuscitate” (DNR) and “Do Not Hospitalize” (DNH) orders. The patient’s court-appointed guardian agrees. Our corporate policy seems to require that someone secure Court approval before the orders can be entered. Can this be the law?

A: No. Under Arizona law, a guardian has the power to make medical decisions for her ward, including the power to sign necessary consents and authorizations. In fact, it is clear (thanks to theRasmussen v. Fleming case) that a guardian can even authorize removal of feeding tubes in appropriate cases.

Arizona statutes do not specifically address DNR or DNH orders. There is provision, however, for a “Prehospital Medical Care Directive,” better known as the “orange form.” By executing an “orange form” a competent patient can express her wishes not to be resuscitated by emergency medical personnel, including paramedics. While this is not the same as a DNH order, it does address the same issues as a DNR. Both kinds of orders are “entered” by physicians, though consent of the patient, agent or guardian is required.

Guardians are specifically authorized to execute the “orange form” on behalf of wards. It is clear that a guardian has the power to make medical decisions generally, and the decision to approve a DNR or DNH order specifically.

Treatment Decision May Not Depend On Living Will


Two recent cases demonstrate that the presence or absence of an advance directive may not always control whether a patient’s treatment is continued. In Delaware, a patient without any advance directive was permitted to die after removal of her feeding tube. Less than two months later, a Texas court refused to permit the withdrawal of feeding tubes from a woman who had executed both a living will and a health care power of attorney.

In the Delaware case, Charlotte F. Tavel, 88, was being fed by tube after a major stroke and the resulting “coma vigil.” Her daughter, Barbara Tavel-Lipnick, secured appointment as her guardian and sought to discontinue the tube feedings. Although the Court permitted her to withdraw the artificial food and fluids, the judge also authorized the State and Ms. Tavel’s appointed attorney to appeal the decision.

Delaware did appeal, alleging that the state’s living will legislation was the exclusive method for residents to exercise the right to die. In other words, no patient without a living will could ever be removed from life-sustaining treatment.

The Delaware Supreme Court ruled that a guardian could remove the feeding tubes in appropriate circumstances. Furthermore, the Court specifically ruled that the court-appointed attorney for Ms. Tavel was not required to object to the termination of treatment.

Meanwhile, in Texas, Mary Sibley was also being fed by artificial means. Ms. Sibley, however, had executed both a durable health care power of attorney (naming her daughter as agent) and a living will. When Ms. Sibley’s daughter tried to utilize the power of attorney to authorize discontinuance of treatment, a local judge ruled that she could not.

The problem in Ms. Sibley’s case was that her living will was too specific. In an effort to prevent the removal of life support too early, she had provided that her living will would not be effective until she had been “comatose” for at least 15 days.

Although Ms. Sibley’s living will did not provide the basis for removal of her feeding tube (since she was not in a coma at all, but “only” in a persistent vegetative state), her daughter argued that her power of attorney permitted her to make the decision for her mother. The court disagreed; Ms. Sibley died while being fully treated, before the local judge’s order could be appealed.

What do these two disparate cases indicate for patients at the end of life? First, Delaware’s decision permitting guardians to withdraw treatment, even without a living will or power of attorney, is consistent with the Arizona rule announced in Rasmussen v. Fleming a decade ago.

The Texas case was not an appellate court decision. Still, while most attorneys recommend that patients should be as specific as possible in a living will, Ms. Sibley’s story suggests that it is possible to be too specific. In Arizona the health-care agent is likely to be permitted to make decisions to discontinue treatment, so long as they are not in direct conflict with the patient’s living will.

Standards for Adult Day Care Centers


From The Wall Street Journal, January 6, 1994

“An adult day-care boom propels a move to set up a national accrediting system.”

Adult day-care centers have multiplied tenfold since the mid-1980s to an estimated 3,000 nationwide, and the trend is expected to continue as more parents of employed baby boomers reach ages at which they need daytime care. Many employers have begun providing referrals to adult day care and other services to aid the estimated 20% of workers who care for aging relatives

But only about half the states regulate adult day-care centers, and quality is uneven. Facilities range from high-quality centers offering health care and educational, exercise, cultural and social programs, to warehouses where aged and emotionally ill people are thrown together to spend most of their days watching television.

Now, the National Council on Aging, with partial funding from American Telephone and Telegraph and two of its unions, has begun setting up an accreditation program to encourage centers to upgrade quality and help consumers find high-quality care.

The council is training aides at adult day-care centers in five states and urging state organizations of center directors to embrace uniform quality standards, says Donna L. Wagner, the council’s vice president, programs. By 1996, the National Institute on Adult Day Care, a council unit, plans to endorse centers based on quality of programs and staff.”

Guardianship and Divorce

It occasionally happens that an incapacitated person needs to be divorced from his or her spouse. This may be because the spouse is abusive, because benefits have been reduced or because the spouse refuses to cooperate in applying for benefits, for instance. Until recently, it was not clear what steps could be taken to secure a divorce in such cases.

In the recent case of Ruvalcaba v. Ruvalcaba (174 Arizona 436, 1993), the Arizona Court of Appeals addressed this question. Mrs. Ruvalcaba’s mother became her guardian after she suffered a serious head injury and entered a coma. Mrs. Ruvalcaba ultimately recovered from her coma, but continued to suffer from amnesia and remained unable to make her own medical decisions or living arrangements.

Mrs. Ruvalcaba’s mother, fearing that her daughter’s husband would become abusive, determined that it would be in her ward’s best interest to pursue a divorce. She initiated the proceedings on her daughter’s behalf. Her daughter’s husband objected, alleging that the power to start a divorce is too personal to be delegated to a guardian. The Court of Appeals disagreed, and held that a guardian may pursue a divorce on her ward’s behalf. The Court cited Rasmussen v. Fleming, the Arizona “right-to-die” case, to show that very personal rights may be exercised by a guardian.

The guardian also sought custody of the couple’s minor children for her incapacitated daughter. The Court permitted this, indicating that the best interests of the children might be served by leaving them with their mother (and grandmother)!

©2021 Fleming & Curti, PLC