Posts Tagged ‘stroke’

Evidence of Living Will Intent Must Be Clear and Convincing


Many patients approaching the end of life feel very strongly that they would not want to be kept alive by feeding tubes, artificial breathing machines or other devices. Signing appropriate advance directives helps, but there is no guarantee that they will be located, properly understood and followed in every case. Discussions with family members, caregivers and medical providers can dramatically increase the likelihood that the patient’s wishes will be carried out.

Consider, for example, the case of Delores Cameron. She had been married for over 40 years to James Cameron, but she had two sons from an earlier marriage. In 1995 she signed a living will, using the form provided by the Alabama Legislature. It directed that “artificially provided nutrition and hydration” should be withheld if she were ever in a persistent vegetative state.

In March of 2000, after a series of strokes, Ms. Cameron became completely unresponsive. She was cared for in an Alabama nursing home, and fed through a feeding tube. Mr. Cameron directed the nursing home to remove the feeding tube.

Ms. Cameron’s sons filed a lawsuit to prevent removal of their mother’s feeding tube. After five days of hearings lasting over two months, the judge ruled that Ms. Cameron’s wishes should be honored, and her sons appealed. They made two arguments that serve as a warning for other patients who execute living wills, durable powers of attorney or other advance directives.

First they argued that Ms. Cameron was not really in a persistent vegetative state. Although one physician testified that she was slightly responsive to some stimulation, two others insisted that she lacked “thought, sensation, purposeful action, social interaction and awareness of self and environment.”

The sons also insisted that it was impossible that their mother really understood the meaning and effect of her living will when she signed it. If she had realized that it would have meant withdrawal of a feeding tube, they argued, she would not have signed the pre-printed form. They did not provide specific evidence of her wishes, but doubted that she had intended to sign the living will.

The Alabama Supreme Court decided that Ms. Cameron’s wishes should be followed—but only if the evidence of those wishes was “clear and convincing.” The trial judge had not used that phrase, so the case was sent back for a further hearing. Knight v. Beverly Health Care, August 31, 2001.

Would it have helped for Ms. Cameron to discuss her wishes with her sons in advance? The financial and emotional cost of legal proceedings might have been avoided if family members had talked over the documents and their meaning before Ms. Cameron’s final illness.

The moral of Ms. Cameron’s story: It is not enough to just sign a directive—family members should be informed and wishes discussed in advance.

Testator Partially Revokes Will By Handwriting On Original

MAY 31, 1999 VOLUME 6, NUMBER 48

J.B. Warren, Jr. had two children, Paul Warren and Anita W. LeCornu. After the death of his wife, he prepared a will leaving one piece of real estate to his son, another to his daughter, and all of his stocks, bonds and financial accounts to his son.

Mr. Warren suffered a stroke in 1987, and his ability to handle his own finances began to slide. He turned to a niece, Becky Taliaferro, to take care of his business matters. She later testified that she reviewed his will in 1991, and that there was a line drawn on the document itself. She did not investigate further because, she said, she felt like she was invading Mr. Warren’s privacy.

When Mr. Warren died in 1997, the original will was found in his papers. Someone had underlined the provision leaving all his stocks and bonds to his son, had enclosed it in double parentheses, and had written the word “void” and the initials “J.B.Jr.” above that section.

Several questions were immediately raised by the markings on Mr. Warren’s will. Were they made by Mr. Warren, or by someone else? If they were someone else’s markings, were they made at Mr. Warren’s direction? If they were made by Mr. Warren, did they have the effect of revoking all of his will, or any part of it?

Mr. Warren’s daughter insisted that she recognized the initials as her father’s, even though she had only seen him once in the six years before his death. Ms. Taliaferro, the niece handling his affairs, agreed that the initials were Mr. Warren’s. Paul Warren, Mr. Warren’s son, claimed that the writing and initials did not look like his father’s. The court, after considering the evidence, found that the markings were made by Mr. Warren.

Tennessee law, like that of most states, provides that a will can be revoked in its entirety or in parts. The revocation can be made by the will “being burned, torn, canceled obliterated or destroyed.” The question then became whether crossing out a paragraph and marking “void” is an effective revocation of that paragraph of a will. The Tennessee Court of Appeals ruled that Mr. Warren’s markings did revoke that provision of his will, leaving all of his stocks, bonds and securities to his two children equally. Estate of J.B. Warren, April 6, 1999.

Arizona law is similar to Tennessee’s. In Arizona, a will can be revoked in whole or in part, just as in Mr. Warren’s case. The law provides that revocation can be accomplished by any “revocatory act” upon the will itself–in other words, “by burning, tearing, canceling, obliterating or destroying the will or any part of it.” Mr. Warren’s marks would have been just as effective in Arizona as they were in Tennessee.

Even though Mr. Warren accomplished what we assume was his goal, there remain many questions. Did he really intend to leave all his assets to both of his children, notwithstanding the fact that he apparently was substantially estranged from his daughter? Did he perhaps intend to benefit others, maybe including his niece, or to leave his real estate in equal shares as well? Is it possible that someone else persuaded him to mark his will, or even marked it for him and forged his initials? All of these questions would be easier to answer if Mr. Warren had consulted with his attorney, explained his goals and had his will properly amended. Of course, his attorney might have simply prepared a new will for him–one that would have expressly revoked his old will.

Illinois Woman’s Death Does Not Give Rise To Family Claim

MARCH 17, 1997 VOLUME 4, NUMBER 37

Dorothy Ficke was admitted to an Evangelical Health Systems hospital in Illinois in March, 1993. Ms. Ficke was 81 years old and suffered from a recent stroke, and diabetes, arthritis, gout, hypertension, congestive heart failure, respiratory disease and depression.

Ms. Ficke had never signed a Living Will or Health Care Power of Attorney, but her hospital chart was marked Do Not Resuscitate by her physician, Dr. Jose Aruguete, a little more than a week after her admission. Ms. Ficke died soon after.

Claiming that they had not been told about Illinois’ law permitting surrogates to make health care decisions, and that they had been forced to stand by while Dr. Aruguete continued to aggressively treat their mother, Mrs. Ficke’s children Darlene, Thomas and Michael brought suit against Dr. Aruguete and the hospital. Their claim against the hospital asserted that hospital staffers knew that Ms. Ficke lacked capacity and that the hospital took no steps to determine whether family members could make health care decisions for her; they also argued that the hospital failed to tell them they had the power to make decisions regarding her care.

The Illinois trial court judge dismissed the Ficke children’s suit against the hospital, and they appealed. The Illinois Court of Appeals has now agreed that the children have no lawsuit against the hospital.

Illinois’ law is similar to Arizona’s surrogate decision-making law. It provides that, where a patient is terminally ill, permanently unconscious, or suffering from an incurable or irreversible illness, family members may make decisions regarding health care even if the patient has not signed an advance directive. [Ed. note: Arizona law permits the family member to make any decision except a decision to withhold or withdraw food or fluids]

The Court of Appeals decided that any fault in Ms. Ficke’s case could not be assigned to the hospital. Although the hospital has a duty to determine whether surrogates are available to act, it must do so only after the terminal condition, permanent unconsciousness or incurable or irreversible condition has been certified. “[I]t is for the attending physician, not the hospital or its staff,” said the Court, “to determine whether the Act applies to a particular patient.” In other words, any claim the family may have must be against Dr. Aruguete.

Furthermore, the Court found that family members do not have a cause of action for their own suffering from having to watch the treatment and, ultimately, the death of their mother. While their mother’s estate might have a claim against Dr. Aruguete, the law does not provide protection for family members; to do so, said the Court, would leave open the question of whether only close family members might make claims, or only those family members who truly “cared about” the decedent.

Although not a model of linguistic clarity, the Court acknowledged that “the death of a parent is indeed an event occasioned by the continued suffering or grieving of the decedent’s family.” Suffering and grieving, however, do not give rise to a legal claim. One member of the three-judge court disagreed with the majority, arguing that the family members should have a cause of action against the hospital because the facility knew (or should have known) that Ms. Ficke was in fact covered by the surrogate law, whether or not her physician filled out the requisite form certifying her condition. Ficke v. Evangelical Health Systems, Illinois Court of Appeals, December 13, 1996.

Although Arizona law is similar in some respects, it is not clear whether the same result would be reached in similar facts. Absent special circumstances, facilities are well-advised to consider the wishes of family members regarding cessation of life-sustaining treatment.

Long Term Care Insurance: Who Needs It? Which Policy?


With nursing home costs approaching $40,000 per year for most residents, the government’s Medicaid program has for decades been the “safety net” for families with long-term care needs. In recent years, escalating Medicaid costs and increases in the portion of national nursing home bill paid by the program have resulted in Congressional efforts to reduce Medicaid eligibility and coverage. Prudent elders should be considering other ways to ensure that nursing home stays can be paid for if needed.

A relative handful of individuals have long-term care available from religious or service group affiliations. Another small portion of the population can rely on government programs other than Medicaid, but for most elders the only alternatives are to accumulate substantial personal wealth (a common goal, though sometimes difficult to realize) or purchase long-term care insurance (LTCI).

A recent review of LTCI purchasing strategies by Elder Law Forum (a newsletter published by Legal Counsel for the Elderly, Inc., and sponsored by AARP) points out some of the considerations for typical buyers. The review makes several points for the “typical” LTCI buyer:

  • About half of 65-year-old women and a third of the men will spend some time in a nursing home.
  • Most nursing home stays will be short, with the median length of institutionalization being slightly less than one year.
  • LTCI premiums currently average about $1,000 per year for 60-year-olds, and rise to $1,500 for 65-year-olds and $2,000 for 70-year-olds.

If you (or a relative or client) are concerned about long-term care costs, some pertinent questions to consider include:

  • When should you buy? The average age of new policyholders is currently 67. Many employers now offer group plans, and a few younger people may buy policies. But for most people, waiting until age 60 to make the purchase is probably reasonable.
  • Should both a husband and wife buy policies? In many cases, one spouse or the other may be uninsurable due to illness or age. The “well” spouse should particularly consider LTCI, since she (most commonly) is likely to survive the “ill” spouse, and therefore have no spouse to care for her. Of course, this is another way of saying that the well spouse is likely to spend some considerable time providing care for the ill, uninsurable spouse, as well.
  • Does family history matter? If a potential LTCI buyer has a family history of strokes, high blood pressure, dementia, Parkinson’s or other conditions likely to require long-term care, insurance is more strongly indicated. Such persons should make the initial purchase at younger ages, since the onset of disability will usually make them uninsurable.
  • Does net worth make a difference? Couples with a net worth of less than $100,000 (not counting the family home), and individuals worth less than $50,000, may not need to consider LTCI, since (current) Medicaid rules will permit them to receive government assistance within a year or two of nursing home admission. Prospective LTCI buyers with large estates may not need the insurance, particularly if their estates generate $40,000 in annual income over and above their (or their spouse’s) other living expenses. In other words, LTCI is primarily of interest to the middle-class elderly.
  • How important are individual policy provisions? Very. Some policies provide excellent coverage for home health care, while others do not; a policy without home care provisions might unnecessarily force the owner into an institution.

A checklist for comparison shoppers can help frame some of the issues. For a helpful checklist, contact FLEMING & CURTI at the fax, e-mail or street address below.
330 N. Granada Avenue, Tucson, Arizona 85701
520-622-0400 / FAX: 520-203-0240

Local Alzheimer’s Support Project


Tucson’s Jewish Family and Children’s Service Center and the Southern Arizona Chapter of the Alzheimer’s Association have announced the receipt of a $46,809 grant from the Flinn Foundation. The grant money will be used to establish a program to provide relief for family caregivers of dementia, Parkinson’s and stroke patients.

The program will utilize volunteers to provide respite care. Volunteer recruitment, supervision and retention will be the responsibility of the Jewish Family and Children’s Service Center, and the Alzheimer’s Association will develop a training program for the volunteer caregivers.

Once established, the program will provide volunteer relief caregivers for some families. There will be no fee, but families will be permitted to make contributions toward the cost of the program.

State Medicaid Waivers Challenged

States may have a more difficult time securing federal waivers to permit experimental Medicaid programs in the future. A lawsuit filed by a group of community health clinics against state plans in Tennessee and Oregon challenges the use of such waivers.

Under federal Medicaid administrative rules, states must secure specific waivers before implementing variations on Medicaid funding or service delivery structures. Arizona has operated under such a waiver since the establishment of its AHCCCS program.

The Clinton administration has indicated its intention to permit state experimentation by making the waiver process easier for states to navigate. The Tennessee experiment, for example, would transfer Medicaid recipients into health maintenance organizations and other discount-price networks of health providers. Similar waivers have already been granted to Hawaii and Rhode Island, and another half dozen states have either applied for waivers or are considering doing so.

The lawsuit alleges that the effect of the waivers is to permit state-by-state health care reform, rather than to encourage Medicaid improvement. The clinics also claim that low-income patients are hurt by placing them in HMOs, because they need health education and encouragement to seek care. Since HMOs are rewarded when patients make fewer visits to the doctor’s office, they are not a good way to deliver care to the poor, according to the suit.

Recent Court Cases

APRIL 25, 1994 VOLUME 1, NUMBER 22

More court cases of note to those caring for or working with elders:

No Duty to Have Monitors

In 1990, Kenneth Emerson moved to Adult Community Total Services, a Pennsylvania retirement community. His contract provided that ACTS would furnish a residence, meals and other services for his lifetime. Mr. Emerson paid $83,000 up front and agreed to make monthly dues payments.

Mr. Emerson suffered a stroke and died five months after moving to ACTS. His body was not found for two days.

Mr. Emerson’s estate sought to recover the $83,000, claiming that ACTS had misrepresented the services provided. The estate pointed out that the agreement promised a “trained security team,” and argued that permitting ACTS to keep the initial payment would unjustly enrich the organization.

The estate also argued that ACTS had an affirmative duty to provide “an effective passive monitoring system and medical response system.” The absence of a system, insisted the estate, was negligence.

The Court ruled that ACTS had no duty to provide a monitoring system. It also noted that the contract specifically ruled out refund of the initial fee unless the resident died within four months of entry into the community. The estate’s claims were dismissed. Emerson v. Adult Community Total Services, Inc. (Eastern District Pennsylvania, January 6, 1994).

Interstate Guardianship

The Florida Public Guardian was appointed as “Jimmie L.”‘s guardian after an injury at his job. His ex-wife sought to have him transported to Wisconsin to be near his family, and initiated a Wisconsin guardianship (with the Florida guardian’s consent) to facilitate the transfer.

The Wisconsin court ruled that Jimmie was no longer a Wisconsin resident, and that the pending Florida guardianship precluded a Wisconsin proceeding. The Wisconsin court of appeals reversed, holding that there was evidence Jimmie intended to return to Wisconsin. Furthermore, the Florida court had specifically ruled that Jimmie could return to Wisconsin once the guardianship was in place, thereby implicitly agreeing that the two courts could share responsibility for the guardianship. In re Jimmie L., Wisc. Court of Appeals, December 30, 1993.

[Ed note-Jimmie L.’s case may provide some help in analyzing the increasingly common problems of guardianship across state lines. In most cases, however, the guardian’s authority will simply be accepted in other states.]

Stroke Treatment

New research shows that prompt treatment for stroke victims may significantly reduce brain damage. Several studies indicate that the medical community should learn to think of strokes as “brain attacks,” similar to heart attacks in the need for immediate intervention in most circumstances.

Much of the research focuses on drug treatments to restore blood flow to the brain or block the action of harmful substances released during strokes. But some of the projects have shown that controlling blood pressure, lowering blood sugar levels or even lowering body temperature may reduce the damage to the brain from strokes.

About 500,000 Americans suffer from strokes each year. Nearly 150,000 die of strokes in a given year.

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