Alzheimer's knows no class --- not even one-time potential Supreme Court candidates

From today's edition of the American Bar Association's e-journal:

Karen Williams was chief judge of a federal appeals court and a potential Supreme Court nominee when her family noticed some changes in her personality.

Williams, who headed the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, was at the peak of her career, the Greenville News (sub. req.) reports. When she began repeating herself and forgetting names, her family assumed she was too busy. “We started noticing something wasn’t right,” according to Williams’ husband, Charlie Williams II. “But we couldn’t put our finger on it," he tells the publication.

And then after Williams was involved in two minor car accidents in two weeks, tests revealed devastating news: Williams was in the early stages of early-onset Alzheimer’s disease. In 2009, at the age of 58, Williams retired from the bench.

Williams’ son, Charlie Williams III, told the Greenville News that today his mother cannot be left alone for more than 15 minutes. She comes to work with her husband and son, but a secretary must help take care of her. The family has helped raise more than $38,000 for the Alzheimer’s Association, and Williams’ son says he hopes that researchers will eventually find a cure for the disease, which affects about one in eight Americans.

 “There are good days and bad days,” Charlie Williams III told the publication. “It’s amazing to see one day how things seem like they’re normal, and the very next day ... to see her look at somebody she has known for 30 years and can’t come up with their name. It’s pretty tough.”

Substituted Judgment, Part 3

Come hear me and Carol Westheimer, M.Ed talk about "Caring for Your Aging Parents" Wednesday, February 22 at 6:30 PM at the Dover Town Library, 56 Dedham Street, Dover

This talk will be aimed towards the "Sandwich Generation."  Carol is a geriatric care manager who has worked with me on a number of cases over the years.

Substituted Judgment Part II -- Reproductive Rights and the Incapacited Person in Massachusetts

My last posting concerned the background of how Massachusetts law deals with medical decision-making for incapacitated persons who need potentially invasive treatment that can have profound and permanent consequences. I noted that unlike many states, where the decisions may be left to a guardian to decide what is in a person's best interest, Massachusetts law requires a judge to step into the shoes of the incapacitated person and determine as best as possible what the incapacitated person would want if he were competent and able to voice an opinion. The law says an incapacitated person may be competent to make some decisions but not others. By law, the court is supposed to consider such variables as the likely outcomes with or without treatment, risk and benefit of the proposed treatment, whether the person has a supportive family and the impact on the person's family which may be caused by the proposed treatment if the person were competent, the person's religious beliefs and whether those beliefs would influence the person's decision-making if competent. The judge does not have to agree with the person's likely decision in order to make the substituted judgment -- after all, even persons of great intelligence and competency can make bad decisions about their health care -- but if the evidence points to a conclusion that the person would take a certain action if competent, then that's what the judge is supposed to order.

There is a long, sad history of forced sterilization being imposed in all fifty states on people without a hearing or any evidence presented other than the assumptions and prejudices of people with power. (A good example of this situation occurred in North Carolina, which is only now being settled.) While I am not aware of any statistics concerning the number of cases heard in the Probate Court concerning requests for sterilization and abortions for persons who are legally incapacitated, my sense based on discussions with colleagues who have a substantial guardianship practice suggests that these proceedings are now quite rare. (In 16 years of guardianship practice, I have only had one such case -- and the guardian decided not to go forward.)

In 1982, the Supreme Judicial Court extended the substituted judgment doctrine to reproduction, noting that "the personal decision whether to bear or beget a child is a right so fundamental that it must be extended to all persons, including those who are incompetent." The person potentially subject to such an order must be given adequate notice of the proceedings, an opportunity to be heard concerning whether whether she has the ability to give informed consent, a determination of substituted judgment if there is no such ability, and the right to appeal. The person is appointed specially-trained legal counsel to be sure that their constitutional rights are fully protected, and may receive funds from the court to hire an expert to advise on the necessity of the proposed procedure and provide testimony about the medical benefits and risks. A Guardian ad Litem is usually appointed to conduct an independent investigation of the facts and submit a written report. The judge is hold a hearing, weigh the evidence and make a detailed decision describing all the relevant facts, the substituted judgment criteria, and apply the facts to the law to determine if the person would want to be sterilized or have an abortion if they could make an informed decision.

Next Entry:  The Mary Moe Case

How well do the courts honor the wishes of incapacitated persons?

There was a terrific article in yesterday's Boston Globe (warning - pay wall unless you're a Boston Globe subscriber) concerning to what extent the wishes of legally incapacitated persons concerning extraordinary medical treatment are actually honored. Extraordinary medical treatment includes such matters as end-of-life decisions, use of antipsychotic medication,sterilization and abortion, and so forth.

This issue has been of great interest to me since law school. Massachusetts is one of the few states where such decisions are left in the hands of judges, who must decide whether the treatment is something that the incapacitated person would want if competent -- in most states, the decision may be left to the guardian, who decides whether the treatment is in the incapacitated person's best interest. One of the first Massachusetts cases on point is the Saikewicz matter. This case from the early 1970's involved a profoundly developmentally disabled 67 year old man who suffered from leukemia. The argument over whether he should receive chemotherapy which, at best, would only briefly extend his life at the cost of considerable side effects. The trial judge, after weighing the pluses and minuses (including the extent to which side effects can be managed, the low rate of remission, the patient's inability to cooperate with treatment, and the anticipated likelihood of death without treatment), determined that treatment should be withheld because it would not be in Mr. Saikewicz's best interest.

The Supreme Judicial Court took a different tack. While adopting the factual findings of the trial judge,  the SJC looked at Mr. Saikewicz's right to privacy balanced against the state interest in preserving life given the facts.

"The interest of the State in prolonging a life must be reconciled with the interest of an individual to reject the traumatic cost of that prolongation. There is a substantial distinction in the State's insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether, but when, for how long, and at what cost to the individual that life may be briefly extended. Even if we assume that the State has an additional interest in seeing to it that individual decisions on the prolongation of life do not in any way tend to "cheapen" the value which is placed in the concept of living, see Roe v. Wade, supra, we believe it is not inconsistent to recognize a right to decline medical treatment in a situation of incurable illness. The constitutional right to privacy, as we conceive it, is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice."

Over time, this doctrine was extended past end-of-life decision-making to other types of medical treatment. The role of the guardian in Massachusetts is to carry out the medical wishes of the incapacitated person to the extent they are known; and after that do one's best to infer what they might be. For certain types of treatment, a judge must weigh in.

Next Post -- the present problem with ensuring the substituted judgment standard is used.

Come here me this coming Thursday at Avery Crossing, Needham

I'll be speaking on "Planning for the Cost of Long-Term Care" this coming Thursday, January 19 at 2:30 PM at Avery Crossing, an assisted living facility located at 110 West Street (cross street is Highland Avenue) in Needham. I hope to see you there!

Property Tax Abatement Applications Due February 1

If you think your property is worth significantly less than your city or town's property tax assessor does, consider filing for an abatement. You can pick up an application at the assessor's office. You will need to complete the application and provide a professional opinion about the value of the property, preferably from a licensed appraiser or a realtor. All applications must be filed no later than February 1. You will have to give the municipality access to your home so it can conduct its own assessment. If you are successful, you'll be able to save possibly hundreds on your property tax bill. It may be worth the effort!