Posts Tagged ‘traumatic brain injury’

Attorney’s Position on Ending Guardianship Case Approved

MARCH 8, 2010  VOLUME 17, NUMBER 8

{Ed. Note: this week’s Elder Law Issues was written for us by our friend, and nationally-known elder law authority, Prof. Rebecca C. MorganProf. Morgan holds the Boston Asset Management Chair in Elder Law at the Stetson University College of Law, and she is the Director of Stetson’s Center for Excellence in Elder Law.]

The ethical rules for attorneys (the Rules of Professional Conduct) impose a number of duties upon lawyers in their dealings with clients. Sometimes the rules require an attorney to take protective action on behalf of a client who has diminished capacity, even when the client disagrees with the attorney doing so.

Janet Clark suffered a traumatic brain injury as a result of a serious car accident. She was subsequently determined to be incapacitated and a North Carolina probate judge appointed a guardian of the person and property for her. A little over eighteen months after her accident her husband petitioned to end her guardianship, arguing that she had been returned to competence.

In the meantime a personal injury case filed on her behalf settled for $4,000,000, and after the payment costs and fees the balance was to be paid to the trustee of a special needs trust to be established by the attorney’s firm. The attorney had earlier created a pooled special needs trust, and he sat on its Board of Directors. He used that trust for Ms. Clark’s settlement funds.

During the case the attorney had come to the conclusion that the husband was attempting to influence Ms. Clark while she was incompetent. The attorney concluded that the pooled SNT would be the best way to ensure that funds would be both protected and available for Ms. Clark’s future needs. Because of this concern, the attorney opposed the proceeding filed by Mr. Clark to terminate the guardianship, and he sought a new evaluation of Ms. Clark’s competency.

Ultimately Ms. Clark was restored to competency and motions were filed, included motions regarding attorney’s fees. The appellate court rejected the Clarks’ argument that it was wrong to award the fees, especially in light of the guardian’s and attorney’s opposition to efforts to end Ms. Clark’s guardianship. After reviewing state law the appellate court concluded that the attorney’s fees should be paid.

The appellate court noted that the facts supported the guardian’s concerns regarding efforts to end Ms. Clark’s guardianship. The trial judge had found that the attorney had a good faith belief that terminating Ms. Clark’s guardianship was not in her best interest and the attorney had a duty to “exercise his best judgment” which, according to the trial court, is exactly what he did.

The appellate court also upheld the trial court’s finding that there was no conflict of interest because the attorney had fully disclosed his relationship with the pooled trust. According to the court, the Clarks failed to prove that this relationship in any way adversely affected the attorney’s representation of Ms. Clark. In re Clark, February 2, 2010.

Appellate Court Ruling May Allow Feeding Tube Removal


Just over eighteen months ago Elder Law Issues reported on the tragic story of Robert Wendland (“Lack of Advance Directives Contributes to Family Tragedy,” August 10, 1998). Last week the California Court of Appeals added a new chapter to the Wendland story, and may have completely changed the ending.

Mr. Wendland was injured in a 1993 automobile accident. Because of brain damage from the accident he has been completely dependent on others for his care; since the accident he has received food and fluids through a feeding tube.

Mr. Wendland has been married to his wife Rose for over twenty years, and they have three children. In late 1995, Mrs. Wendland asked the court to appoint her as conservator of her husband’s person (California’s term for a guardian), and it was apparent she would be appointed. At the same time she asked the court for permission to disconnect Mr. Wendland’s feeding tube.

About the same time, Mr. Wendland’s mother Florence received an anonymous telephone call informing her that a move was underway to remove her son’s feeding tube. She and her daughter (Mr. Wendland’s sister) filed an objection with the court.

Despite some improvement in his condition, Mr. Wendland remains a total-care patient. He is paralyzed on one side and he can not feed himself or control his bladder or bowels.

Mr. Wendland has been fed by artificial means since his accident—at first by a “jejunostomy” tube stapled directly into the inside of the small intestine. Such a tube requires general anesthesia, and Mr. Wendland’s tube became dislodged three times in the first half of 1995. When his wife refused to consent to the fourth replacement of the tube, doctors insisted on a nasogastric feeding tube (inserted through the nose and directly into the stomach). For nearly five years, he has been fed by a “PEG” tube inserted directly into the wall of his stomach and small intestine. It is that tube that Mrs. Wendland now seeks to remove.

Mr. Wendland never signed any “living will,” health care power of attorney or other advance medical directive. Mrs. Wendland testified that he did say he “would never want to live like that” after watching his father die three months before his own accident. That testimony was corroborated by Mr. Wendland’s brother, who told of warning him about drinking and driving just five days before the accident.

Removal of artificial feeding devices from brain-injured patients, tragic though it may be, is all too familiar in medical-legal circles. Since the late 1970s the issue of removal of life-sustaining medical treatment from incapacitated patients has been a rapidly-developing area of the law, with the U.S. Supreme Court even weighing in at one point, in the case of Missouri resident Nancy Beth Cruzan. Mr. Wendland’s story, however, is different from almost all the other cases reported in the courts.

Nancy Beth Cruzan (and, before her, Karen Ann Quinlan) was diagnosed as being in a “persistent vegetative state” (PVS). Although the diagnosis is relatively new, it has been well-described in the past quarter-century. PVS is not the same thing as “comatose;” comatose patients are completely unresponsive to external stimuli, while PVS patients often respond to noises, temperature changes and touch. In fact, PVS patients may appear to be awake, and even follow movement with their eyes. Properly diagnosed PVS patients, however, do not recover significant cognitive functioning—unlike comatose patients, who may awaken even after extended periods of unconsciousness.

Although Mr. Wendland was in a sixteen-month coma immediately after his accident, he is now awake and at least partly responsive. He can (after repeated instructions) operate a motorized wheelchair’s joystick control, and has drawn the letter “R” on command. Sometimes he cooperates with therapists enough to match colored blocks, again after instructions have been repeated multiple times.

Most remarkably, Mr. Wendland has (on at least one occasion in 1997) communicated with his physician by pushing or pointing at bars on an “answer board” set up to assist him. The physician first ascertained that Mr. Wendland’s answers were not random by asking “Are you Robert?” [Yes] “Are you Michael?” [No] and similar questions. Then he moved on to the questions central to Mr. Wendland’s future:

“Do you have pain?” [Yes]
“Do your legs hurt?” [No]
“Do your buttocks hurt?” [No]
“Do you want us to leave you alone?” [Yes]
“Do you want more therapy?” [No]
“Do you want to get into the chair?” [Yes]
“Do you want to go back to bed?” [No]
“Do you want to die?” [No answer]
“Are you angry?” [Yes]
“At somebody?” [No]

Despite his ability to respond to questions appropriately, his physician opined that Mr. Wendland did not seem to understand all the questions, and his answers could not be trusted.

The trial court appointed Mrs. Wendland as her husband’s conservator, but specifically limited her authority so that she could not remove his feeding tube. She appealed, and was joined by Mr. Wendland’s court-appointed attorney. Mr. Wendland’s mother and sister asked that the trial judge’s ruling be upheld.

The Court of Appeals’ 70-page opinion begins with a simple, but eloquent, observation: “This is the hardest case.” The appellate court then directs the case back to the trial court level, instructing the judge to hold further hearings and to permit Mr. Wendland’s mother and sister to put on any evidence they might have about his wishes prior to his injury.

After that evidence is in, according to the Court of Appeals, the question for the trial court is whether Rose Wendland has made her decision in good faith and based on medical advice. The trial judge’s determination that the feeding tubes could not be removed was reversed, though the final outcome is not certain, even seven years after Mr. Wendland’s tragic accident. Conservatorship of Wendland, February 24, 2000.

Surviving Parent Not Entitled To Custody Of Disabled Child

MARCH 15, 1999 VOLUME 6, NUMBER 37

Parents of minor children are usually entitled to have custody of those children. In a divorce proceeding the court will decide which parent should retain custody of the child, or whether custody should be shared. Of course, those proceedings are often hotly contested and may result in bitterness and distrust.

Frequently, the custodial parent wishes to make arrangements for the future placement of the child in the event of the custodial parent’s death. Because the legal system protects the rights of parents to raise their own children, however, the designation of a non-parent as guardian of the child will ordinarily be ineffective; upon the death of the custodial parent, the surviving parent has the presumptive right to take custody of the child.

That is what happened in the Illinois case of Kirsten Johnson. When her mother Barbara died in 1995, Kirsten’s aunt Vera Howse petitioned for guardianship of Kirsten, then 16. Although Barbara’s will named Vera as guardian, and the trial court agreed that her appointment was in Barbara’s best interests, the Illinois Court of Appeals reversed her appointment, ruling that Kirsten’s father Eric Johnson was able and willing to take custody, and the appointment of a guardian was therefore inappropriate.

In Kirsten Johnson’s case, however, that was not the end of the issue. As a result of an automobile accident when she was nine, Kirsten’s ability to make her own decisions is limited. She not only sustained a serious head injury in that accident, she also has a sizable estate as a result of a lawsuit filed after the accident. She owns the home where she lives (with Vera and several other family members) and an annuity which will make payments totaling over $4 million.

Coincidentally, the Court of Appeals decision directing that Kirsten’s father be given custody was rendered just one month before her eighteenth birthday. Two days after the court order, Vera filed a petition to be appointed guardian of Kirsten under the guardianship system dealing with disabled adults. Eric Johnson objected, arguing that his priority as father should be as strong in adult guardianship cases as it is in minor custody issues.

After the trial judge appointed Vera as guardian, Eric appealed. Once again the Illinois Court of Appeals was faced with the question of who should have control over Kirsten’s future.

The answer on this second trip to the Court of Appeals was different. The judges pointed out that the rights of parents to raise their own children are no longer at issue when the children are of legal age, and the question therefore becomes one of the best interests of the disabled adult. In addition, the guardianship law provides that the wishes of the disabled person be strongly considered in making the choice; Kirsten Johnson was clear that she preferred to live with her aunt Vera. In re: Estate of Johnson, March 2, 1999.

The legal battle over custody of Kirsten Johnson was lengthy, costly and divisive. Both sides leveled accusations of impropriety–Eric Johnson pointed out that the home in which Vera and Kirsten lived had been purchased with Kirsten’s money from Vera, and that Vera paid no rent. He also suggested that Kirsten had been coached to tell court personnel that she preferred to live with her aunt. Vera, on the other hand, pointed out that Eric had been delinquent in child support payments and had not participated in Kirsten’s care before his ex-wife’s death. In the end, however, the central question was what would be in Kirsten’s best interests.

Special Needs Trust Created Too Late; Funds Go To State


Virgil Lamont Hamilton, a California child, was injured in a tragic swimming pool accident in 1982. Hamilton suffered severe brain damage, and will require total care and extensive medical treatment for the rest of his life. Since the accident, Hamilton has lived in a California state institution, Agnews Developmental Center.

Attorneys for Hamilton brought suit against the swimming pool owner and, in 1984, settled the case. The result of the settlement was that $400,000 was placed into a “medical trust fund” for Hamilton’s benefit, and an annuity was purchased with an additional $100,000. The annuity payments were structured to begin in 1992.

Immediately upon completion of the settlement, Hamilton lost his eligibility for California’s Medicaid program (Medi-Cal). The state Department of Developmental Services stepped in and provided Hamilton’s care, but brought an action against the trustees of the medical trust fund. The result of that action was an order, entered in 1989, directing that the remaining funds in the trust account be paid to the state. Upon exhaustion of the trust account, Hamilton once again qualified for medical assistance through Medi-Cal, and the health care program once again began paying for his medical care.

In 1992 the annuity payments began to arrive. Initially, Hamilton received $5,000 per month. Medicaid/Medi-Cal recipients are required to pay most of their income (minus a small personal needs allowance, in most cases) toward their own medical care, and so Medi-Cal demanded that the entire annuity payment be delivered to the Agnews Developmental Center each month. The result: Hamilton received the same care he would have received if he had not settled his personal injury action, and the proceeds provided no additional care, equipment, therapy or other benefits.

Hamilton’s mother thought she saw a way to benefit her son. In 1995, she asked the California courts to restructure his “medical trust fund,” and the annuity payments, and to effectively create what is usually called a “special needs trust.” With such a trust arrangement, the annuity payments could be used for Hamilton’s extra needs–the types of things not provided by Medi-Cal which might improve his quality of life. Unfortunately, the state’s payments for Hamilton’s care by this time had exceeded $250,000 and the Department of Developmental Services opposed the funding of the special needs trust unless the Department was first reimbursed for those payments.

Hamilton’s mother asked the California court to approve the special needs trust as if it had originally been established when the lawsuit was settled in 1984. She asked the court to enter the order nunc pro tunc–as if that had been the original order of the court, but a clerical error had been made in the entry of the formal order. The trial court agreed, saying that it was rectifying “the court’s [earlier] failure to establish a properly drafted trust.” The Department appealed.

The California Court of Appeals reversed the nunc pro tunc order. Saying that the use of such a process is limited to truly clerical errors, and not to remedy judicial mistakes, the judges refused the request to modify Hamilton’s trust fund. Hamilton v. Laine, September 16, 1997.

What does the Hamilton case have to do with elder law? Many Medicaid recipients are elderly, and a disproportionate portion of nursing home residents are aged. Those who have been injured (or who inherit money) may find that they receive no benefit from their settlement unless a properly drafted special needs trust is established at the time. Competent legal assistance is essential for institutionalized personal injury plaintiffs of any age.

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