Mercy Fitzgerald Hospital Thrown Out of Court in DELCO Guardianship Case

          Chapter 54 of the Pennsylvania Estates, Decedents and Fiduciaries Code (20 Pa. C.S.) deals with Living Wills and Medical Powers of Attorney. Unfortunately, few medical providers are aware of the terms of the law. This problem is compounded by the fact that many people download medical power of attorney and living will forms from the Internet without realizing the implications of their choices.

          These two issues played out in a recent case in the Delaware Valley Orphans Court last September. The facts were as follows:

          M.J. was a patient at Mercy Fitzgerald Hospital who was being kept alive by a mechanical ventilator and a feeding tube.  Doctors at Mercy Fitzgerald filed a guardianship petition and informed the DELCO court that the patient would not be able to continue indefinitely with the current life supports, and the patient was also suffering from end-stage dementia and a failure to thrive. Since the current equipment was not intended for sustained use they would have to insert a PEG tube for feeding. The doctors also felt that the operation would be painful for the  patient and would only serve to prolong the patient's process of dying. The doctors and hospital had recommended that the patient be placed in hospice and palliative care. The patient had two sons: one son disagreed with the hospital and the other son wanted the parent placed on hospice and palliative care. 

          Ten years prior to this, the patient had drafted a medical power of attorney and living will. There were several problems with those documents. The first problem was questions regarding the patient's capacity to draft the document when she did. Another problem was that the legal document appointed her two sons as her agents and gave them the power to act alone or together. The two sons could not agree on the procedure to be followed,  so the hospital brought a guardianship  action in court. The crux of the problem is that the power of attorney as drafted gave any of the sons the power to act as an agent either jointly or individually, thereby rendering it almost meaningless.

         The DELCO Court stated that a guardianship was improper because  there already was a Durable Power of Attorney in place, and the statute specifically gives preference to those documents. The Court cited Section 6612(a)(3) of the Pennsylvania Fiduciary Code stating that a guardian is generally not necessary if the principal has drafted a Power of Attorney. One of the sons who was an agent under the Power of Attorney showed up in the Delaware County court and explained how the principal would not have wanted the life support withdrawn. The court stated that although the attending physician and the hospital may not agree with the agent's decision, it should be controlling.

          One thing the court did not mention is who is given the priority to make decisions under Advance Health Care Directives. Section 5461(g)(2) of the Decedent's and Fiduciaries Code - Title 20 provides express guidance to medical personnel when agents under the document are not in accord and evenly divided. In that case the law directs them to act as though no decision had been made, and to administer  health care treatment "in accordance with accepted standards of medical practice." Hence, whatever options may have been available to them, the filing of a guardianship petition was not one of them. 

This case points out that, contrary to rumors, if you draft one of these documents, they are honored. However, it may be worth the cost to have them drafted by a competent attorney who can offer drafting advice and spot any incongruities and/or provisions that may cause  problems later.

Bob Gasparro
robert.gasparro@lifespanlegal.com
Telephone-484-451-6612
www.lifespanlegal.com

Can You Vote as a Guardian or Agent Under a Power Of Attorney?

People often ask: "I am agent under my father's Power of Attorney. I know exactly how he would want to vote at the next election, may I vote for him?"

The simple answer to this question is "no." An agent's authority under a power of attorney is defined by statute in Title 20, Chapter 56, and voting in a government election is not one of those powers.. The power to vote in corporate elections is often granted, but it does not extend to governmental elections. Neither may a guardian vote for their ward.

However, you may transport your ward to the polls so they can vote. If they cannot travel to the polls, you may order an absentee ballot for them.

Another different, but related question, is whether someone who has been found incompetent after an adjudication in a guardianship proceeding, or pursuant to the terms of a springing power of attorney, may vote.

The law says that everyone is deemed to be competent until there has been a finding of incompetency. Someone who is demented,yet not formally determined to be incompetent, is still presumed competent. Furthermore, the distinction between competency and incompetency is not static; many people drift between the two depending on the time of day or other environmental conditions.

Even as to persons found to be incompetent, there is a constitutional right to vote. Because the right to vote is fundamental and preserves other basic civil and political rights, it has protections under the Due Process Clause of our nation's constitution. A state must provide an adequate notice and hearing to an incapacitated person before revoking the right to vote. While most states have laws that determine whether an incapacitated person may vote, Pennsylvania is one of the thirteen states that are completely silent on the issue.

This topic was addressed and the current law exhaustively reviewed in the most recent Journal of the National Academy of  Elder Law Attorneys. If you would like a copy of the article, please contact our office.

Finally, the last date to obtain an absentee ballot in Pennsylvania for the upcoming election in November, is October 28, 2014. 

Criminal Prosecution of a Guardian, or Agent under a POA?

     I recently faced an Orphan’s Court delay due to a most unusual case. As some readers already know, the court usually disposes cases that take the shortest amount of time first, then reschedules other cases, and the contested matters are heard last.This day in court, it was hard to ignore a slightly annoyed judge confronting a group of several litigants. It became apparent the case at the bar of the court involved a local continuing care community, demanding an accounting from the children of a resident. 

     As the story unfolded, it seems that years ago, as is customarily done, the parents in the continuing care community listed all their assets in an application for admission. The residents have now run out of money. The owners of the continuing care community, using simple math, realized that $400,000. disappeared from the time of the initial application.The parents’ health had deteriorated; it was not clear whether the children were acting under a power of attorney, or as court appointed guardians. One thing was clear, the continuing care community was asking the court to issue them subpoenas to financial institutions, permitting them to find the missing money. They were asking for a court order compelling the children to provide an accounting, and subpoenas for the children’s financial records.

     The children were suddenly on the hook for the $400,000. missing assets. As though that was not bad enough, someone from the Attorney General’s Elder Abuse Unit and another from the county District Attorney’s Office was monitoring the case just in case they would prosecute the children for elder abuse, and theft of their parents’ money.

     The children felt the entire matter was a family affair, and the continuing care facility had no business prying into their affairs. The court felt otherwise and ordered an accounting, and re-listed the case for the issuing of subpoenas for financial records. 

      The same judge presiding over the case happened to be teaching an Elder Law continuing education class the following week. He alluded to the case, without mentioning names. He said that he does not mind when a family engages in asset protection planning, but the trouble arises when the children decide to do their own planning, without professional advice, and transfer their parents’ assets to their name. The children might find themselves under investigation for elder abuse, and face the chance of being charged with theft, in addition to any filial support obligation. The relevant Pennsylvania law is Title 18, Section § 3927.  Theft by failure to make required disposition of funds received. That section of the theft code deals with misuse of funds entrusted under a fiduciary duty. With few exceptions, the grading of the offense depends upon the value of the property misappropriated or stolen. A way to avoid any of these hazards is to consult with an experienced estate planning or elder law attorney, or financial advisor before transferring your parents' assets. The cost of a consultation is far less than the cost of defending a criminal prosecution.

Stay well until the next post,

Bob Gasparro