by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization
CANHR (California Advocates for Nursing Home Reform) is one of the leaders in advocacy and educational resources related to elderlaw in California. The National Association of Elderlaw Attorneys (NAELA; and in California, the Southern California Chapter) is another. CANHR held their convention in Monterey in November. A key discussion involved the status of adoption of DRA (Deficit Reductions Act of 2004-signed into effect February 2005) in California. The consensus is that California is 12-18 months away from putting Regs into effect to adopt DRA here in California AND that it likely will not be retroactive.
California has always been slow adopting Federal Law and strings which attach to the Federal Medicaid (in California, Medi-Cal) moneys. In 1988 we had MCCA. It was amended in 1989 but the form of the law adopted in California did not include the 1989 amendments. In 1993 OBRA went into effect, but not in California. Every year I advised clients trying to plan of the OBRA rules coming into effect soon. Seventeen years later, most of OBRA is not part of the law in California. In 1993 I began advising clients that the “look back” period would be expanding from 30 to 36 months and the gifting of funds in a fractionalized manner to minimize any period of disqualification would be eliminated. THAT IS STILL NOT THE LAW IN CALIFORNIA 17 YEARS LATER.
Now we have the DRA, but 5-6 years later it is still not the law here; but it is closing in on us.
An issue that was mentioned in the CANHR newsletter, the CANHR Advocate, Summer 2010 issue, dealt with the authority to make healthcare decisions when there is no written Healthcare Directive. The Advocate article took the position that family members have the right, absent a written directive, to act as the surrogate or agent for a person who is unable to advocate for himself and has not indicated a contrary intent.
Legislative efforts to clarify the issue were not passed, so the author relies on Cobbs v. Grant (1972) 8 Cal.3d 229, and Barber v. Superior Court (1983) 147 Cal.App.3d 1006.
I questioned the author’s conclusion and reviewed these two cases. Regardless of your conclusion, after reading these cases (and I now believe the author may be correct) recognize that you will not likely be able to convince medical staff who, either is working with the family (written directive or not) or with the Healthcare Agent (with Directive), or not, citing these cases will probably not alter the situation, except in court.
The Cobbs case involved a medical malpractice lawsuit. The jury found the Doctors committed malpractice and the Supreme Court reversed the decision and analyzed “the doctor’s duty to obtain the patient’s informed consent.” Plaintiff, the patient, had surgery, recovered and was sent home. With additional pain and internal bleeding, he returned to the hospital and underwent additional surgery. This occurred two more times before the patient properly recovered and sued for malpractice. A great deal of the discussion by the court dealt with conclusions the jury could come to as a result of common lay knowledge and what required expert opinion.
The important issue to us, which arguably is dicta in this case, but is 5½ pages of Supreme Court dicta, dealt with informed consent. The doctor getting the patient’s consent to one surgery or treatment and the doctor performing yet another treatment without consent and, under the circumstances was that a battery? It was another treatment, but also was “a known risk.” There was a split of opinion, but with the trend toward finding negligence.
The court reviewed numerous cases requiring consent to treatment by the person “most directly affected”, the patient.
Turn now to the Barber case, which involved cessation of treatment for a patient who, though not brain dead, was in a vegetative state. Th patient had listed his sister-in-law on a hospital form, but in what capacity was not clear. He had a wife and children, who directed that Doctors take no further action to try and treat the patient. There was no written Directive naming an Agent or Surrogate.
The Appellate Court remanded for the Superior Court to reverse its order re-instating charges against Doctors for their failure to continue treatment of Patient which resulted in a hastening of Patient’s death.
The court said “Patient” interests and desires are the key. “When the patient, however, is incapable of deciding for himself . . . there is no clear authority on the issue of who and under what procedure is to make the final decision.” The People argued that only a “duly appointed legal guardian” has authority. The court said that “whether such proceedings are to be required in the future is again a question for the Legislature to decide.”
Here, the court found the wife was the proper surrogate and that absent “legislative guidance, we find no legal requirement that judicial approval is necessary before any decision to withdraw treatment can be made.”
That’s it in a nutshell.
Mark your calendar for the upcoming Long Beach Trust, Estate Planning and Probate Brown Bag Luncheon:
Thursday, April 28, 2011, Michael Trainotti, Esq., will be sharing his thoughts on Estate Tax and Related Tax Law Changes for 2011-2012 (and 2010?) In addition, Judge Paul will give special recognition to those who have so faithfully given of their time and expertise to volunteer for the Pro Per Guardianship Panel.
We meet at the Long Beach Superior Court in Dept. G (on the 5th floor). There is no charge for the meeting.
John T. Anderson, Section Chair
Certified Specialist in Probate, Trust and Estate Planning
by the California State Bar Board of Legal Specialization