Scott S. v. Superior Court of Orange County (California Court of Appeal, Fourth Appellate District, Case No. G046468, March 14, 2012)

Holding that in a LPS (Lanterman-Petris-Short) conservatorship a Conservator who is seeking authority to consent to non-emergency medical treatment for the Conservatee must show by competent admissible evidence that the treatment is medically necessary.  In this case the Public Guardian for Orange County sought authority to amputate the Conservatee’s infected toe.  The Conservatee contended that the trial court erred by relying on a physician’s written declaration to find that the amputation was medically necessary.

The Conservatee contended the Public Guardian could not show the amputation was medically necessary because the declaration was hearsay. The Public Guardian conceded the declaration was inadmissible hearsay. “But the Public Guardian asserted that the Conservatee’s capacity to consent to medical treatment was “’the only issue in a proceeding brought under Welfare and Institutions Code [section] 5358.2,’” and “’medical necessity is not a required element of proof under that statute.’”

“’Except in emergency cases in which the conservatee faces loss of life or serious bodily injury, no surgery shall be performed upon the conservatee without the conservatee’s prior consent or a court order obtained pursuant to Section 5358.2 specifically authorizing that surgery.’” “(§ 5358, subd. (b).)”

“In sum: Before the court authorizes an LPS conservator pursuant to section 5358.2 to consent for the conservatee to nonroutine, nonemergency medical treatment, it must find (1) the conservatee lacks the capacity to give or withhold informed consent, and (2) the treatment is medically necessary — i.e., (a) the conservatee has a medical condition that requires the recommended treatment, and (b) without treatment, a probability exists the condition will endanger the conservatee’s life or seriously threaten his or her physical or mental health.”

On appeal the Court held that the trial court’s finding that the amputation was medically necessary was invalid as the trial court’s decision was based on inadmissible written declaration out-of-court hearsay testimony.  The Court did find that the in-court testimony from a psychologist was sufficient to support the trial court’s lack-of-capacity finding.

However, the Court also “express[ed] no opinion on what kind of evidence is required, other than admissible evidence. In particular, we do not hold the LPS conservator must in every case call the treating physician to testify about medical necessity, if other relevant evidence on that point is admissible.”

Per this article from the Institute on Assets and Social Policy the financial security of seniors has gone from bad to worse primarily due to declining household assets, inadequate household budgets, and increasing housing costs, Click Here.

New article, California Advisor Convicted of Selling an Annuity, Click Here.  Of course, I don’t know what is true or not, but it is an interesting article.

K.G., an Incompetent Person, etc., et al., Plaintiffs and Appellants v. Larry Meredith, as Public Guardian, etc., Defendant and Respondent (California Court of Appeal, First Appellate District, March 8, 2012, Case No. A132087)

The decision in K.G. v. Meredith is lengthy and relates to more than one important issue.  The following summary pertains to the nature of the finding that the trial court must determine before making a finding that a gravely disabled person under the Lanterman-Petris-Short Act lacks the right to make his or her own decisions on medical treatment for his or her grave disabilities, including involuntary administration of antipsychotic medication under Cal. Welfare & Institutions Code §5357(d); and the nature of the notice that must be provided to the proposed conservatee as a constitutional due process right.  Although the case involves an LPS conservatorship, you might also find the decision relevant for similar medical decision and drug or medication issues that may arise in an ordinary conservatorship of the person with medical decision making authority.

In pertinent part Cal. W&I Code §5357(d) states:

“5357.  All conservators of the estate shall have the general powers specified in Chapter 6 (commencing with Section 2400) of Part 4 of Division 4 of the Probate Code and shall have the additional powers specified in Article 11 (commencing with Section 2590) of Chapter 6 of Part 4 of Division 4 of the Probate Code as the court may designate. The report shall set forth which, if any, of the additional powers it recommends. The report shall also recommend for or against the imposition of each of the following disabilities on the proposed conservatee:

* * * * *

     (d) The right to refuse or consent to treatment related specifically to the conservatee’s being gravely disabled. The conservatee shall retain all rights specified in Section 5325.”

On appeal, the Court of Appeal found:

“Petitioners are entitled to a judicial declaration that, before a trial court may impose a medical disability pursuant to section 5357(d), the court must find that the conservatee or proposed conservatee is incapable of making rational decisions about medical treatment related to his or her own grave disability, that is, lacks the mental capacity to rationally understand the nature of the medical problem, the proposed treatment, and the attendant risks. In doing so, the court must consider the Riese factors, i.e., (a) whether the patient is aware of the nature of his or her grave disability; (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought and otherwise participate in the treatment decision by means of rational thought processes. To permit meaningful review, the record must reflect that the court was aware of this legal standard, that it considered evidence relevant to the standard, and that it made a finding utilizing that standard.

While we grant declaratory relief, we must remand for the trial court to consider whether mandamus relief should be granted. We do so for two reasons. First, remand will give the trial court an opportunity to consider whether the Public Guardian has taken, or will take, necessary action to comply with the law. Second, we recognize that the decisional incapacity finding is the superior court’s responsibility, regardless of the forms submitted by the Public Guardian. The trial court is in the best position to determine in the first instance whether mandamus relief is appropriate.”

The Court also held that as a constitutional right to due process the proposed temporary conservatee also must be served with more than simply notice of the hearing although the statutes do not require such. You should review the Court’s decision for the complete detailed discussion.  However, in pertinent part the Court stated:

“The notice provided by the Public Guardian to the proposed conservatees here did not describe the legal standard for imposition of the disability nor did it require any separate response. It provided contact information for the public defender’s and patient’s advocate’s office, but did not ensure representation. The notices in the record do not set forth a date, time and place for a hearing on the petition or, in the alternative, a date the temporary conservator will be appointed if no objection is interposed. The revised notice form submitted by the Public Guardian is not materially different. The revised physician’s declaration form prompts the declarant to provide evidence on each of the three Riese factors, but there is no indication that, contrary to the Public Guardian’s prior practice, this declaration form itself will be served on the proposed conservatee before the court imposes the section 5357(d) disability. We do not believe that mere absence of objection by an unrepresented party to an inadequate notice given by the Public Guardian can be regarded as the equivalent of “informed consent” to involuntary medication. (See Riese, supra, 209 Cal.App.3d at p. 1320.)

We find that the current practice of imposing a section 5357(d) disability provides inadequate notice and opportunity to be heard and therefore violates due process. (FN:20)  For the reasons stated ante, we remand for the trial court to consider the appropriateness of mandamus relief.”

New article link, researchers find that computer games can change your brain and can improve creativity, decision-making, concentration and dexterity, Click Here.  Of course, anything in excess isn’t good, computer games aren’t everyday life, and they diminish real human interaction and problem solving.

According to the following article nursing home care is improving based on federal inspections, Click Here, but nursing homes that receive only one and two stars out of a total possible five stars still stands at a huge 35%, and nursing homes that received only one, two or three stars stands at 56%.  The following is a link to complete rankings from the Centers for Medicare & Medicaid Services, Click Here. A nursing home is required to provide care and services designed to attain or maintain the highest practical physical, mental and psychosocial well-being reasonably possible for each resident, and to protect each resident from injury.  With all of the current talk about risk management across industry lines, it is clear that there are ample opportunities for improvement in nursing home care risk management practices.

The following is a link to a Forbes article by John Wasik, Why Elder Financial Fraud is on the Rise, Click Here.

The following is a link to a New York Times article re fewer beds for men entering nursing homes.  According to the article, nursing homes like the elderly population are heavily female.  Since Medicaid will only pay for a two-person semiprivate room, and a female will not be placed with a male, it can be more difficult for a prospective male resident to find an immediate room opening thus possibly forcing the family to make other arrangements.  To see the article Click Here.

Here is a link to a blog discussing aspects of will or trust undue influence in California, Click Here.  Undue influence is most often established by circumstantial evidence, and can be difficult to prove.  The basic claim is that the person would not have voluntarily acted as he or she did if he or she had not been improperly influenced.  Not all influence is wrongful.  So . . . you need witnesses and documentary evidence to establish that the person was wrongfully influenced, or at least witnesses who will testify that the terms in the will or trust are not what the person would have voluntarily wanted.  The standard burden of proof is on the person who is trying to establish that there was improper influence.  However, in California there are now several case law and statutory arguments available that may allow the person who is alleging that there was undue influence to shift the burden of proof to the alleged wrongdoer who then must prove that there was no undue influence.  Shifting the burden of proof can be very helpful; however, it is my experience that the court will still initially require the person alleging undue influence to first establish his or her case.  I am currently involved in a will dispute case in Santa Clara County alleging issues of undue influence, fraud, mutual wills and statutorily prohibited transferee.

Christie v. Kimball (California Court of Appeal, Second District, January 26, 2012), holds that the probate court can order an accounting sua sponte (i.e., on its own initiative) under its general powers and that generally an order compelling an accounting standing alone is not appealable.  Let me just say, if there was any doubt, as a general matter, I would like to see judges take more initiative to get the information out there and available.  I do note that there was an argument that the person requesting an accounting did not have legal standing for such.  The trial court stated that it was not determining that issue (i.e., whether the person was entitled to an accounting), but was ordering an accounting for its own benefit so that the court could determine what was going on.  Kind of a slippery slope.  Generally I don’t support having to provide an accounting when standing is lacking; however, many trust and estate issues raise equitable issues, such as in cases where there is reliable evidence of possible wrongdoing, undue influence or misappropriation.  In many of those situations it is helpful that the court has discretion to act on its own.