Posts Tagged ‘William Sherrill’

Arizona Court Defers Decision On Georgia Man to Georgia

FEBRUARY 10, 1997 VOLUME 4, NUMBER 32

Sidney Head lived in Georgia with his wife, Martha. He had married Martha late in life, after the death of his first wife; he had four grown children from his first marriage.

Col. Head’s ability to care for himself began to slip and, a few months after his eighty-fourth birthday, Martha sought appointment as his guardian and conservator and placed him in a Georgia adult care facility.

Over several visits, Col. Head’s children became alarmed that the care he received in the Georgia care home was inadequate. They complained that his confusion worsened due to a lack of appropriate programs for demented patients, that his personal dignity was not respected, and that he was inappropriately medicated (primarily with Haldol) during his stay.

Sometime prior to Col. Head’s placement in the Georgia care home, and before the guardianship and conservatorship was initiated, he had executed a durable medical power of attorney naming one of his sons as agent. After reading Georgia law as permitting a health care agent to act even after the appointment of a guardian, his son took steps to secure the treatment and care he believed his father desperately needed.

First, Col. Head’s son transferred his father to a clinic in the Chicago area which specialized in the treatment of Alzheimer’s patients by injection of testosterone, pituitary growth hormone and placental gonadotropin. After a brief stay at that facility, Col. Head was transferred to a Tucson-area nursing home, where the hormone treatments were continued.

After Col. Head’s arrival in Tucson, several of his children sought appointment as temporary guardian. They alleged that, despite Martha’s appointment as guardian in Georgia, she had not acted in his best interests, and that an emergency existed requiring their appointment, to assure the nursing home that he would not be removed and to authorize the continuation of his treatment program.

Martha Head, for her part, objected to the Arizona courts assuming jurisdiction of the matter. She argued that the Georgia guardianship gave her authority to make medical decisions for her husband, and that any objections to her decisions should be dealt with in those Georgia proceedings. She sought dismissal of the Tucson petition and a return to the Georgia courts for resolution of the dispute.

While proceedings were pending in Arizona, both parties continued to press their respective positions in the Georgia court. Martha Head secured an order directing that she could “exercise the powers” of Col. Head with respect to the power of attorney (in other words, revoke or restrict the appointment of Col. Head’s son as agent). The children, meanwhile, secured a Georgia court order compelling Martha Head (as conservator) to pay for the expensive hormone treatment program. Each party appealed the rulings in favor of the other.

Finally, Arizona’s court ruled on the question of jurisdiction. In a short ruling, Pima County Superior Court Judge William Sherrill (in one of his last rulings as chief Probate Judge for the Tucson area) ruled that “[b]ecause Mr. Head has a guardian and conservator appointed in the State of Georgia who is able to act on behalf of Mr. Head, this court finds no emergency necessitating its exercise of jurisdiction.” Furthermore, Judge Sherrill found that to relitigate any of the issues currently in controversy in Georgia “would be disrespectful to a competent court of a sister state.” In Re: Sidney A. Head, Sr., January 10, 1997.

Col. Head’s case was returned to Georgia for further resolution, even though he remains (for the moment, at least) in Arizona. While it may not be the final answer, it suggests that another state’s guardianship order will be respected in Arizona.

Tucson Woman, Fed By Tubes, Kept Alive Despite Living Will

DECEMBER 16, 1996 VOLUME 4, NUMBER 24

“W.L.”, an 85-year-old Tucson woman, lives in her daughter’s home. She has been unable to speak coherently, or to communicate her wishes, since a massive stroke over two years ago.

Less than a year before her stroke, W.L. signed a Living Will (and a Health Care Proxy) in another state. Her Living Will provides that:

If the situation should arise in which I should have an incurable or irreversible condition that is likely to cause my death within a relatively short time, or if I should be permanently unconscious or in a permanent vegetative state, I direct that I be allowed to die and not be subjected to or continue to be kept alive by medication, medial procedures interventions or artificial means of any kind, including artificial nutrition and hydration.

Since shortly after her stroke, W.L. has received both nutrition and hydration through a gastrointestinal tube, which is permanently inserted directly into her stomach. She is mobile and in excellent health; the care she receives in her daughter’s home is exceptional and her health care professionals agree that she can be maintained in her current circumstance for a considerable time.

Last year, in connection with unrelated court proceedings, an attorney was appointed to represent W.L.’s interests. Her attorney questioned whether W.L. should be receiving artificial feedings, given the language of her Living Will. He brought a new court proceeding, asking the judge to authorize the removal of the tube.

W.L.’s medical providers objected, indicating that because of her excellent care, the quality of her life and the slight inconvenience associated with her gastrointestinal tube, it would be wrong to remove the tube at this point. Her family concurred, arguing forcefully that they felt that her quality of life is excellent and that she knows and is interested in family members. Family members also noted that W.L. had suffered another stroke seven years earlier, and had accepted tube feedings and substantially recovered from the first stroke; they argued that administration of tube feedings was consistent with W.L.’s previous practice.

After legal arguments, Pima County Superior Court Judge William Sherrill ruled that W.L.’s feeding tube should not be removed. He noted that there is some ambiguity in W.L.’s Living Will (it indicates that her agent under the Health Care Proxy may have the final decision as to withholding life-sustaining treatment), that there are questions about her understanding of the terms of the Living Will when she signed it, and that her present condition may not be one which would “cause her death.” Finally, according to Judge Sherrill, no decision to remove a feeding tube (particularly over the objections of both family and treatment team) should be made unless the evidence of the patient’s wishes is “clear and convincing.”

Assuming that a patient wishes to avoid W.L.’s current situation, what might she do? Two items would help ensure that strongly-held opinions are honored:

  • Clear expressions of the patient’s wishes. W.L. relied on pre-printed forms (although they were filled out by her attorney and executed in his office). Unfortunately, they did not speak in her own voice, and did not tell the reader which issues were more important to her.
  • Full discussion with family. At least some of W.L.’s family was surprised to learn of her Living Will, and first saw it after the decision to place the feeding tube had been made. If they had been aware of her wishes earlier, they might have acted differently.

Of course, Judge Sherrill’s decision might well have been exactly what W.L. wanted. Unfortunately, her ambiguous Living Will prevents us from ever knowing for certain.

Legislative Changes

JUNE 27, 1994 VOLUME 1, NUMBER 31

The 1994 session of the Arizona legislature ended in mid-April. Most of the new laws adopted during that session will become effective in about three weeks, and newspaper articles about those changes should begin appearing soon.

Several new laws are of particular importance to the elderly and disabled. The changes include:

Private Fiduciaries
Senate Bill 1103 directed the Arizona Supreme Court to develop a system for registration and regulation of private fiduciaries. Any person or organization serving as guardian, conservator or personal representative of a person or estate, unless related to the ward or decedent, must meet the Supreme Court’s standards.

In response to the new law, the Supreme Court has established a committee to draw up minimum standards, disciplinary rules and other regulatory provisions. It is unlikely that the rules will be ready by July 16 (the next meeting of the Committee is set for August 1), but some protection will be provided for incapacitated adults, children with substantial estates and heirs in the near future.

Pima County representatives on the Supreme Court committee include Robert Fleming, Hon. William Sherrill (the presiding Pima County probate judge) and Eleanor terHorst (the Court’s Probate Law Counsel). Any of the three would be happy to hear from concerned citizens, particularly those with first-hand knowledge of abuses and concerns with private fiduciaries in the past, or with suggestions for protective regulations.

Age Discrimination Cap Removed
Senate Bill 1226 removes the present cap of age 70 from Arizona’s Age Discrimination in Employment Act. Older employees are now protected from discrimination under the law.

Investment Advisors
After particularly complicated legislative wrangling, House Bill 2271 passed both houses and was signed by the Governor. This legislation creates a regulatory structure for investment advisors, requiring them to register with the Arizona Corporation Commission. Minimum qualifications were also established, and a mechanism to report abuses and suspend advisors from practice.

Respite Care
House Bill 2317 created a pilot project to provide respite care for the frail elderly. The primary focus of this legislation is on attempting to show whether respite care permits caregivers to function in their home-care roles for a longer period. Only $75,000 was allocated, and the pilot project was limited to Maricopa County, but it may signal an acknowledgement on the part of legislators that respite care is an important issue for the future, and perhaps a willingness to expand such a program.

State Retirement COLAs
Senate Bill 1058 introduced the concept of an automatic (or perhaps semi-automatic) cost of living adjustment to the Arizona State Retirement System. COLAs will be limited to half the increase in the Consumer Price Index (or 3%, whichever is less) and will only be available in years when funds are available (according to a formula adopted as part of the law). The COLA legislation automatically ends in five years.

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