Assisted Suicide Legalized in New Mexico

New Mexico’s governor recently signed a bill legalizing assisted suicide. The “Elizabeth Whitefield End of Life Options Act,” is named for a late state district court judge who died of cancer in 2018, and who became an advocate for assisted-suicide in her final years.

The bill allows licensed physicians, osteopathic physicians, nurses, and physician assistants to prescribe a lethal dose of medication for terminally-ill patients who are deemed capable of self-administering the dose.

New Mexico is now the eighth state to have legalized physician-assisted suicide, along with California, Colorado, Hawaii, Montana, Oregon, Vermont, and Washington. The District of Columbia has also legalized the practice.

The state’s Catholic bishops had strongly opposed the bill, which was passed by the House in February and by the Senate in March, largely along a party-line vote.

Archbishop John Wester of Santa Fe characterized the legislation as “the worst in the nation.”

Archbishop Wester explained his opposition:

“God’s law calls us all to recognize and protect the life and dignity of each and every human being, especially the most vulnerable. This includes unborn children and those at the end of life. We are promised that God’s law will ultimately bring peace and new life, especially to those who are suffering."

The bill requires two licensed health care providers, one of them a doctor, to determine and certify a patient’s terminal illness. Patients in hospice do not require a second confirmation.

If the patient has a history of a mental health disorder or intellectual disability, or if health care providers believe a patient might have a disorder, the patient must be referred for a mental health assessment before a prescription is filled.

Two witnesses must be present for the request to receive a lethal dose of medication and only one may be a relative of the patient. The bill requires a 48-hour waiting period between the prescription being written and filed.

Some amendments were struck before it passed the state Senate. Amendments allowing for insurance collectionreimnbursement and waiving liability for health care providers were removed.

The bill still also contains a state residency requirement, which a 2019 version of the legislation did not include. Some critics warned that the previous bill would have enabled “suicide tourism” where patients would travel from out-of-state to receive a lethal prescription. That bill also allowed for lethal prescriptions to be issued remotely through telemedicine; the current bill does not permit electronic options, and requires instead physical presence.

The 2021 bill does include a conscience exemption for health care providers who refuse to provide a lethal prescription, but it requires them to inform the patient and refer them to another provider who will provide the prescription.

As a lawyer, I welcome options for my clients, but remain frustrated that inconsistency in drafting and implementing legislation might cause denial of these options.  Patients are  prevented every day from implementing  or enforcing their wishes by actual or perceived liabilities of health care professionals and institutions.  Protecting patient choice by absolving health care providers of liability for patient's choices seems a clear.

Source:  New Mexico legalizes assisted suicide

Oldest Living American, Hester Ford, Dies at Age 116

Hester Ford, who was the oldest living American, died at 116 surrounded by her loved ones at home, according to her family members.  

The following is from authors Emma Korynta and Tanya Mendis, writing for KHOU 11, in Houston, Texas: 

"It's a sad day but it's also a great day in heaven," her great-grandaughter Tanisha Patterson-Powe said. "Although we’re saddened by it, we take great pride in the legacy that she does leave behind."

Ford lived in the same home in Charlotte for more than 58 years. She had 12 children, 48 grandchildren, 108 great-grandchildren, and approximately 120 great-great-grandchildren.

"She was a pillar and stalwart to our family and provided much needed love, support and understanding to us all," a statement from her family posted to social media Saturday evening reads, in part. "She was the seed that sprouted leaves and branches which is now our family. God saw fit to make her the matriarch of your family and blessed us to be her caretakers and recipients of her legacy."

Born on August 15, 1904, in Lancaster, South Carolina, Ford lived through countless historical events. In fact, living during a pandemic wasn't a new experience for her -- she was alive during the 1918 Flu pandemic.  

"In times that were troublesome, when there were so many injustices taking place, it was her faith that kept her moving," Patterson-Powe said. When Ford was born, Theodore Roosevelt was elected to his second term as President of the United States. Her family says Ford worked on a farm where she not only planted and picked cotton but plowed the field and cut wood. When she moved to Charlotte in 1953, she worked as a nanny for a Myers Park family for more than 20 years."

Her light shined beyond her local area and she lived beyond a century with memories containing real life experience of over 100 years," the statement continues. "She not only represented the advancement of our family but of the Black African American race and culture in our country. She was a reminder of how far we have come as people on this earth."

Last year, Mecklenburg County proclaimed Sept. 1 as "Mother Hester McCardell Ford Day."                                                                                                                                                                                          Patterson-Powe said her great-grandmother was proud of all she accomplished and inspired countless people in the community. "She wanted people to have the type of faith that she had; to be able to believe that anything is possible," Patterson-Powe said.Funeral arrangements have not yet been made. 

Ford's family asked the public to reflect on how far the world has come since she was born, saying the family will keep this in mind as they aspire to keep advancing in her name and legacy.  

Why One Woman Has Spent 5 Years in a San Diego County Jail With No Trial, and Why it Matters

The challenges and threats of court-appointed guardianships and conservatorships are often portrayed as impacting predominantly older people with impaired or declining cognitive capacity.  The harsh reality is that when a system is broken, victims come from a wide spectrum of not-so- easily classified people.  

In planning, the worst case scenario is that a healthy person is wrongly alleged to be incompetent or incapacitated, and there are plenty of examples of that situation occurring.  Beyond, the worse case, however are folks who suffer a myriad of actual, alleged, and yes, even feigned, impairments, disabilities, and illnesses.  

Among the most troubling recent cases, reported by Voice of San Diego, is that of Maria Moore, who  has spent almost five years in a San Diego County jail without having been convicted of a crime.  It describes the  drawn-out case  as underscoring the "complexity of prosecuting someone who’s severely mentally ill, pitting criminal justice, psychiatry and conservatorships against one another." Moore’s situation also speaks to a "shortage of psychiatric beds in California," in a legal and health care system with limited and already overly-taxed resources: 

More than a decade ago, the district attorney’s office charged the 81-year-old in the beating death of another elderly woman in South Bay. Moore is one of the longest-serving prisoners in San Diego County who’s yet to go on trial. And she might never.

Moore’s case attracted media attention at the time, with headlines describing her as the victim's caretaker. That turned out to be untrue. A prosecutor later told the Superior Court that the victim, Charmian Antaramian, had met Moore a few months prior and allowed her to move in. Court records suggest that Moore had once scalded Antaramian with hot water, sold herself as the trustee of the victim’s estate and isolated her from friends.

After a concerned relative requested a welfare check, an SDPD officer crawled through a window in the house, located in the Palm City neighborhood, and found Antaramian’s body, the Star News reported. A prosecutor said police arrested Moore at a neighbor’s house while she was in the process of purchasing a Greyhound bus ticket. Moore later claimed to be a lay nun.

It was a sensational case. But its drawn-out history underscores the complexity of prosecuting someone who’s severely mentally ill, pitting criminal justice, psychiatry and conservatorships against one another. Moore’s situation also speaks to a shortage of psychiatric beds in California.

The criminal proceedings were immediately suspended so that the Superior Court could determine whether Moore was fit to stand trial. Judges waffled on this question for years, as attorneys dug up new information and medical professionals offered one opinion after another. Moore was removed from the courtroom for her outbursts on several occasions.

In 2011, a judge concluded that Moore was mentally incompetent, then changed his mind a few months later. By the following year, he was back to his original position. In 2014, a different judge came to a different conclusion and set a new arraignment date, allowing criminal proceedings to resume. Those efforts were short-lived, though.

The issue of mental competency was put to rest in 2015, when a third judge determined, at least for the time being, that Moore was unfit to participate in her criminal defense.

To keep the murder case alive, prosecutors had relied on the testimony of a psychiatrist who said Moore was “malingering with the objective of avoiding criminal prosecution.” The psychiatrist found it “extremely unlikely,” he said, that Moore has a delusional disorder because the onset is usually 40 years of age, but she had no recorded history of psychiatric problems until her arrest.

Public defenders, however, produced mental health and criminal records from New Mexico showing that Moore had been diagnosed much earlier in life as a paranoid schizophrenic. She’d also been evaluated in the late 1980s as a result of criminal proceedings at the time.

Following her arrest in 2010, Moore was mostly confined to a state psychiatric hospital in Patton, Calif., outside San Bernardino. But in 2016, after being declared unfit for trial once again, Moore was booked in jail.

For nearly the last five years, she’s lived at the Las Colinas Detention and Re-entry Facility in Santee, the primary point of intake for women prisoners in San Diego County, which is home to a psychiatric security unit.

The facility has a better reputation these days — the Washington Post Magazine called it “a gold standard for gender responsive-corrections” in 2019 — but it wasn’t always that way. The San Diego County Grand Jury visited Las Colinas in 2006 and expressed surprise at the appalling conditions — “the floor of at least one dorm was caving in,” the group wrote. A new version of the facility opened in 2014 under design principles intended to reduce “physical and psychological barriers and promote direct and constructive communication among staff and inmates,” according to one architectural firm.

Moore is not eligible for release. It’s still possible she could one day go on trial, but only under a limited set of circumstances.

After the murder case against her stalled, the county became legally responsible for Moore’s well-being. The court agreed to place her in the care of the public conservator under what’s known as an LPS conservatorship, a civil program for Californians who suffer from biological brain disorders. It’s meant to protect gravely disabled people from civil rights abuses while at the same time involuntarily committing them to treatment.

At the request of prosecutors, Moore was later placed into what’s known as a Murphy conservatorship, which is set aside for people facing an outstanding felony charge. It’s a different legal standard than, say, being found not guilty by reason of insanity and has the goal of restoring one’s mental competency.

The conservatorship undergoes regular reviews, which is why Moore appears in the sheriff’s inmate database for “mental comp” and not murder. If there is a change in her status, that could trigger a new round of criminal hearings. The idea, in other words, is to get her well enough so she can participate in her own defense.

“If the defendant becomes mentally competent after a Murphy conservatorship has been established, the conservator must certify that fact to the sheriff and the district attorney, the defendant’s attorney and the committing court,” wrote DA spokesperson Steve Walker in an email.

In the meantime, the Sheriff’s Department confirmed that Moore is waiting for an available bed at a state hospital but couldn’t immediately say for how long. “I’m sure COVID delayed the hospitals being able to receive new clients/inmates,” Lt. Amber Baggs, a department spokesperson, wrote in an email.

A state audit in 2020 took issue with how Californians with serious mental illnesses are cared for. It noted that people in conservatorships have limited treatment options because the wait time to get into a state hospital can take a year on average.

“California does have an extreme shortage of beds,” said Lisa Dailey, acting executive director of the Treatment Advocacy Center, a nonprofit based in Virginia, “and a lot of that is because something like 95 percent of beds are taken up with forensic patients, people who are facing charges or otherwise in the criminal justice system.”

Still, the amount of time Moore has spent in jail as opposed to a state hospital seems extreme, Dailey said. “I’ve never heard of a case lasting five years.”

There are a number of outstanding questions in Moore’s case, like whether her legal representatives have tried to get her into a state psychiatric hospital and for how long they’ve been pushing. It’s hard to tell from the outside, because the records from Moore’s mental health hearings are not publicly available. One of the San Diego County deputy public defenders who represented Moore and the Public Conservator’s Office did not respond to requests for comment.

Moore’s case may be an extreme one, but she’s not necessarily alone.

CalMatters recently found that 44,241 people languishing in a county jail across the state — three quarters of all inmates — haven’t been convicted of, or sentenced for, a crime. San Diego County was home to more than 2,300 such people, including, KPBS reported, 380 who’ve been in jail for more than a year and 20 who’ve been in jail for three years and counting.

As you read this story, it easy to distinguish Ms. Moore's plight as so completely different from your own, that there is no useful information it can provide.  That distinction is correct, perhaps, but correctly analyzed should be troubling.  Ms. Moore is accused of a crime, and she has a myriad of federal and state constitutional protections, designed to ensure that no one accused of a crime is permanently incarcerated without recourse or proof.  Yet, there she is, armed with a state appointed counsel, and a basket-full of protections, wasting in a jail cell.  

A senior alleged to be incompetent or incapacitated is not an accused criminal, and is not afforded the same basket of constitutional protections.  A senior accused of a health or cognitive impairment is not accused of a crime, and is therefore more vulnerable, less protected, and often without legal counsel.  Substitute a nursing home for a jail cell, and a medical condition for a criminal charge, and Ms. Moore's plight might be more obviously similar, but her plight should nonetheless speak to everyone.  

Thanks to the National Association to Stop Guardian Abuse for highlighting the article on its blog.    

 

    

New York Repeals Health Care System Protection from COVID-19 Liability

New York Gov. Andrew Cuomo recently signed a bill repealing a state law protecting health care facilities and professionals from COVID-19 related lawsuits.

The Emergency or Disaster Treatment Protection Act was enacted in April 2020 at the inception of the COVID-19 pandemic. At least fifteen states passed some form of liability protection for health care workers and institutions in the wake of the pandemic.  New York lawmakers voted nearly unanimously (149-1) last month to repeal the portion of the law that offered protection from both civil and criminal liability.  These laws remain controversial.

Nursing homes and their staff are among those affected by the repeal, which went into immediate  effect upon signing, or April 6, 2021, per Law360. 

Nursing homes will be vulnerable to COVID-19 related lawsuits on a going forward basis, however, the repeal is not retroactive, leaving in place protections for incidents that occurred during the period that the law was in effect.

Nursing home and elder care advocates have celebrated the repeal as a restoration of the rights that protect nursing home residents from abuse or neglect. 

On the other hand, the Greater New York Hospital Association and the Greater New York Health Care Facilities Association have strongly opposed the repeal, according to ABC News.

This action may trigger a trend in states repealing COVID-19 legal protections for health care workers and/or institutions, but given the circumstances unique to New York and Governor Cuomo, the action may prove to be an outlier.

Beware Direct Transfer Designations (TODs and PODs)- Part III- Transfer on Death Deed for Real Estate Results in Loss of Insurance Coverage and Impairment of Asset Value

In Dawn Strope-Robinson v. State Farm Fire and Casualty, Dawn became the owner of a home owned by her deceased uncle pursuant to a transfer on death deed. Several days after her uncle’s death, her uncle’s ex-wife intentionally started the house on fire. The resulting damage was substantial.

Dawn filed a claim against her uncle's insurance company.  The fire and resulting damage occurred prior to Dawn even having the opportunity to file an affidavit confirming her father's death, and so she had not yet obtained insurance for the property in her name. 

The insurance company denied the claim related to the real property on the basis that the policy only insured the uncle as an insured, and not any subsequent owner.  Dawn sued.  

The Eighth Circuit Court ruled in favor of the insurance company on the basis that transfer to Dawn occurred immediately upon death, Dawn was not covered under her uncle’s policy and her uncle’s estate had no insurable interest in the property.

This case has a complex procedural history and Dawn made a number of equitable and statutory arguments supporting her claim for insurance under her uncle's policy, all of which were rejected by the court.  The case was also decided applying Nebraska law. 

Of course, standard policies insure, for at least a period of time, fiduciaries of the estate of a deceased insured.  The reason that these provisions did not apply in the Strope-Robinson case is that the real property was not an asset of the probate estate, and the court ruled specifically that the uncle's estate had no insurable interest in the property. In other words, the successful effort to avoid probate meant that the uncle's insurance terminated immediately upon his death. 

   

The case should give pause to the reflexive use of a transfer on death deed or beneficiary affidavit as an inexpensive estate planning tool. 

Ohio and Missouri law differs.  In Ohio, though, the holding in Strope-Robinson appears consistent with the result predicted by the Walker case previously discussed in a separate article on this blog.  For more information see:

• Beware Direct Transfer Designations (TODs and PODs)- Part II: Ohio Transfer of Death Designation Affidavit (TODDA) for Real Estate- Lapse of Insurance Coverage.

Of course, Direct Transfer Designations is also a separate subject of the first article in this series:

• Beware Direct Transfer Designations (TODs and PODs).

Thanks to Attorney Mary Vandenack for contributing commentary on the case to Steve Leimberg's Estate Planning Newsletter, which inspired this article.   

Exercise May Slow Cognitive Decline for Some Parkinson's Patients

Parkinson's disease can and often does cause of cognitive impairment. Memory and cognitive  impairment are among the most common nonmotor symptoms of the disease. A new study shows that exercise may help slow cognitive decline in some Parkinson's patients.

Research has also indicated that those with Parkinson's disease who have the gene variant apolipoprotein E e4 or APOE e4, may experience cognitive decline at an earlier, and quicker rate than those without the variant. Also, APOE e4 has been identified as a "genetic risk factor for Alzheimer's disease." 

The new study focused on whether exercise could slow down the cognitive decline for people that have the APOE e4 variant.  According to Jin-Sun Jun, M.D., of Hallym University in Seoul, Korea,  “[p]roblems with thinking skills and memory can have a negative impact on people’s quality of life and ability to function, so it’s exciting that increasing physical activity could have the potential to delay or prevent cognitive decline.”

Jun also stated that there will need to be more research done in order to confirm the findings, but the results of the research suggests that "interventions that target physical activity" play a role in delaying cognitive decline in people with early Parkinson's who have the APOE e4 gene variant.

Source: "Exercise May Help Slow Cognitive Decline In Some People with Parkinson's Disease," American Academy of Neurology, March 31, 2021. 

NYT: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public."

The headline of a  recent New York Times article posed succinctly the challenge nursing home rating systems present to an unwary public: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public."  The subtitle to the article indicts the industry: "Nursing homes have manipulated the influential star system in ways that have masked deep problems — and left them unprepared for Covid-19."  The role of government, from benign neglect, incompetence, and/or complicity, is also discussed in the article.

The article is rich with examples of institutions with fundamental problems and flaws that nonetheless attain "high marks" and good ratings, masking dangers and risks to unwary consumers.  For readers of this blog, this reality is not revelation.  The case for aging in place could not be more profound.

The article is largely reprinted below [tables, pictures, and graphics omitted]:  

Transfer of Home to Caretaker Child Effective Even Where Child Works Outside Home

Medicaid rules permit a senior to transfer a home to a child that has establishes residence in the home and provides care necessary to age in place for a two year period.  But the question arises, must the caretaker child devote all of his or her time to the care?  While a rational reading of the statute would suggest no requirement of full time care, and no restriction against outside work,  controversy can arise, and did in a recent New Jersey case.  

Fortunately, New Jersey ultimately interpreted the rule rationally.  The New Jersey appeals court recently held  that a Medicaid applicant’s transfer of her interest in her house to her son qualifies for the caretaker child exemption even though the son worked outside the home and hired aides to help care for his mother. See, A.M. v. Monmouth County Board of Social Services (N.J. Super. Ct., App. Div., No. A-5105-18, March 11, 2021).  Unfortunately, the result was not easy, and was attained only after a protracted legal battle.

The son lived with his mother, and worked as a teacher. Mom transferred two-thirds of her interest in her home to her son and her daughter while retaining the remaining one-third interest. When mom was diagnosed with Alzheimer’s disease, the son arranged for caregivers to assist him with providing care for his mom while he was at work and paid the aides from mom's assets.  Mom transferred her one-third interest in her house to him. Mom eventually entered a nursing home and applied for Medicaid. A doctor’s report stated that without the son's care, the mom would have entered the nursing home sooner. The Medicaid agency, nonetheless,  imposed a penalty period based on mom’s transfer of her one-third interest to A.M.

The son requested a hearing, arguing that the transfer was exempt under the caretaker child exemption. An administrative law judge (ALJ) found that the care the son provided his mother went beyond the personal support a child is expected to provide and approved the exemption. The Medicaid agency reversed the ALJ’s decision, however, concluding that because the son had aides provide care for his mother and paid for the care out of her funds, the transfer was not exempt.  

Understand the hypocrisy of the State's position here.  The exemption is specifically designed to encourage  a child to take care of their parents by permitting transfer of the home to them for doing so, where that care prevented institutional care.  The State is essentially argues that if the child has a life beyond caregiving for the parent, and manages care for the mother through other caregiver's in order to ensure the highest continuity and quality of care, the child cannot be rewarded for the child's service. The State's position is essentially that a child can receive the benefit of the exemption only if the child devotes full time to caregiving, and more, refuses to engage paid assistance, potentially diminishing the quality of care provided.  The State would bristle at the suggestion that its position encourages compromise to quality and safety, but is that not precisely the State's position?   

Understandably, the son appealed.  he New Jersey Superior Court, Appellate Division, reversed, holding that the transfer is exempt under the caretaker child exemption, ruling that there is nothing in the law preventing a caretaker child from working outside of the home or hiring aides to assist with caregiving. The court determined that there was ample evidence that before and after work, the son provided care beyond that normally expected of a child. According to the court, the “intent of the regulation – to encourage children to make the necessary arrangements to care for a parent in their home to avoid the public expense of institutionalization – would not be furthered by a requirement that the child caregiver work only a limited number of hours outside the home or earn no more than a particular income.”

The case represents an excellent result for aging in place proponents that is only diminished by the  lengthy legal battle the son had to endure to attain the result.   

Importance of Senior Tax Deduction Returns in 2021

A tax break for seniors that all but disappeared last year has resurface this year. This tax break benefits retirees in their 70s and up. These tax breaks are qualified charitable distributions (QCD), "which allow individual retirement account holders to divert some of their federally taxable required distributions to charity." The deductions allow IRA holders to make donations and reduce their federally taxable income. 

The pandemic limited the effectiveness of this deduction last year.  The Cares Act effectively cancelled required minimum distributions (RMDs).  Even though you could still use QCDs, their effectiveness was almost completely eliminated due to the cancellation of RMD requirements in 2020:  those who didn't want the taxable income could simply forego the RMD, and thus, there was no need to take take advantage of the QCD.

Now, retirees can take advantage of these contributions. However, if considering QCDs, you should consult with your financial or tax  advisor to discuss the best way to take advantage of these contributions, or possibly to stay away from them.  There are limitations and possible pitfalls. 

For more information, go here.

Source: Allan Sloan, "A tax break for retirees is back. Here’s how to use it — and what to avoid," Washington Post, March 18, 2021. 

Lottery Winnings Hell?

Everyone knows that winning the lottery can kill you; whether from crime or wanton excess, lottery winning related death is well known.  But there are just possibly states of existence worse than death. 

Marie Holmes, a 26-year-old single mother of four was working two jobs when she won the lottery.   Holmes had one of three winning tickets, entitling her to receive a third of a $564 million pot,  Her ticket was worth hundreds of millions of dollars.

 Holmes had the choice of either receiving the money as a lump sum ($127 million) or a total installment amount of $188 million. Understandably, Holmes elected the lump sum. 

With the winnings, Holmes planned to make donations to her church, buy a house, and set up college funds for her kids. Unfortunately, included in the expenses would be substantial tax payments. 

Soon after Holmes' windfall, the media began portraying her as a "frivolous and foolish person" based on how she spent her prize money. On top of that, it became difficult for Holmes to keep a low profile.

Holmes, like many of us would in the same situation, began spending lavishly and even began spending money on her boyfriend and his bail, payments which soon exceeded $21 million.  Since winning the lottery, Holmes, herself, had been arrested for possession of marijuana following a search of her house pursuant an arrest of her boyfriend. Holmes and her family, thereafter, fell victim to racism from their mostly white neighbors. 

Compounding Holmes' troubles, her relationship with her local church pastor soon fell prey to greed.  Holmes' Pastor allegedly asked her for $1.5 million "to build a retreat." According to the  Pastor , Marie verbally agreed to give him that $1.5 million. Matthews eventually brought a lawsuit against Holmes for $10 million which represents ten percent (10%) of her winnings.  After all, she originally promised to give to the church. Matthews brought the suit despite Holmes' previous gift of $700,000. 

Eventually, Holmes' had to start paying of her boyfriends mistresses to leave him alone.

Holmes eventually turned to a show on Oprah Network to obtain some financial advice, but that avenue failed as well. 

There is one bright spot in Holmes' story, Holmes persevered and successfully created the Marie Holmes Foundation which helps poverty stricken families. 

Source: Gur Tirosh, "The Disaster of the Big Fat Lottery Win," Living Magazine, last visited March 4, 2021.