Determining incapacity requires assessing executive function

By Sandra Reed

Adult Protective Services (APS) investigator Darlene B., summoned by a call from a concerned neighbor to Ellen P.’s residence, discovered a pile of trash outside the front door. Inside the home, Darlene noted disconnected electricity, no running water and the overwhelming smell of urine and feces.

Ellen denied she lacked power and insisted the mess was temporary because she was hunting for a lost bill. Asked what APS could do to help her, Ellen claimed the only thing she needed was a limb removed from a tree in her yard. Despite these illogical disclosures, Ellen’s memory and orientation seemed to be intact. How can both family and professionals determine whether Ellen is incapacitated? How can they determine the services needed?

Under Texas law, an incapacitated person is an adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.

Fortunately for Darlene, her APS contracts with the University of Texas Health Science Center of San Antonio Psychiatric Services division, to make assessments of individuals exhibiting impairments similar to Ellen’s. Darlene requested a comprehensive evaluation of Ellen’s mental capacity. Central to that evaluation is what mental health professionals call “executive function.”

Although an individual may be able to recite what they need to do for themselves regarding hygiene, nutrition, medications, and safety, more important is whether they retain the “executive capacity” to follow through with the tasks required for each.

Texas law requires that before a person can be declared incompetent and a guardian appointed, a licensed physician must declare person to be incompetent through a Certificate of Medical Examination (CME). Unfortunately, the CME by the physician is often completed following a far less comprehensive evaluation than the twelve-hour plus battery of testing Darlene was able to secure. Families faced with a situation like Ellen’s should insist upon an evaluation by a psychiatrist trained in assessing geriatric capacity to adequately determine the mental capacity, care and services appropriate for their loved one.

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Determining incapacity requires assessing executive function

$1.3 million 911 victim’s compensation case in court

HARTFORD — The Connecticut Supreme Court is poised to decide a 17-year-old fight over $1.3 million awarded to an underage daughter whose father died during the Sept. 11 terrorist attacks in New York City.

Carolyne Hynes, a Weston resident and mother of the now-16-year-old girl at the center of the dispute, brought the issue to the state’s highest court after years of losing in probate, state and appellate courts.

The case revolves around guardianship and who has the right to distribute nearly $1.3 million from the September 11th Victim’s Compensation Fund awarded to Hynes’ daughter. The money has been frozen in an account for years.

An undercurrent of allegations — vigorously denied by the family — that the mother attempted to take her daughter’s money swirl around the case.

“(The daughter) was the victim of horrific circumstances,” said Michael Kaelin, a Stamford lawyer representing Hynes. “Now it’s hurting her all over again.”

The Supreme Court is being asked to dismiss a court-appointed guardian, Sharon Jones, and authorize Hynes to spend the money to support her daughter.

A lawyer representing Jones did not return a request for comment.

A hearing before the Supreme Court is scheduled for Monday morning.

Falling buildings

On Sept. 11, 2001, Hynes was pregnant with her daughter when terrorists attacked the World Trade Center where her husband, Thomas Hynes, 28, was working for Thomson Financial. He did not survive and his daughter was born the following year.

To help 9/11 victims and survivors, Congress established a compensation fund. Carolyne Hynes received $2.4 million for the death of her husband, with $1.3 million of that total allocated for her daughter.

Kaelin said the case never should have become a legal battle, noting the mother signed an agreement to use her daughter’s money for her expenses and support.

“It was to pay for the child’s needs,” said Kaelin, who said he is not receiving compensation for his legal services. “It was supposed to replace the father’s support had he lived. That’s what it was set up for.”

At one point, there were allegations that Hynes had improperly used her daughter’s victim compensation money — some $385,000 — to buy a home in Weston for herself and her daughter.

Kaelin said that money was properly used at the time, and said the funds were later returned to the account.

Guardian appointed

The legal case began in 2003 in Norwalk Probate Court; the family lived in Norwalk at the time. The Probate Court appointed Hynes guardian of the child’s estate and administrator of her late husband’s estate. The probate judge also appointed a guardian to oversee the child’s interests.

The Probate Court refused to allow Hynes to use any of her daughter’s award for her support.

A Superior Court dismissed an appeal filed by Hynes to free up the money and a state Appellate Court affirmed that decision, ruling the fund should be treated as an asset of the estate and the Probate Court could assert jurisdiction and control over the award.

“It was not supposed to be a guardian situation, or reserved for when (the daughter) reached legal age,” Kaelin said. “If the child does not get the money until then, the whole purpose of the award is defeated.”

In a summary of the case, the Supreme Court said it will “determine whether the Appellate Court properly concluded that a September 11th Victim Compensation Fund award paid to a surviving spouse as a representative payee for the benefit of a minor child is subject to the jurisdiction and control of Connecticut Probate Courts.”

Asked if similar cases had occurred in other states, Kaelin said he was not aware of any, noting courts have recognized that victim awards are governed by the agreement with the federal government.
“To its credit, the Supreme Court took this case,” Kaelin said.

“The money is still sitting there,” Kaelin said. “Her daughter is going to parochial school. She was a victim of horrible circumstances. It’s hurts her all over again every time this has to come up.”

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$1.3 million 911 victim’s compensation case in court

Man charged with financial exploitation of nursing home resident

A man has been indicted on a charge he was taking money from a woman's trust that nearly led to her eviction from a nursing home.

Gary Gaddie, 69, Huntsville, Texas, is charged with financial exploitation of an elderly person over the age of 80, a Class 1 felony.

The woman was found to be a disabled adult on Nov. 13, 2012, and a guardian was appointed.

The original guardian died in 2014 and Gaddie was appointed as a successor on Jan. 6, 2015.

Instead of paying for the woman's care through social security and pension, Gaddie took the money for himself, buying a home and pickup truck instead, according to Effingham County State's Attorney Bryan Kibler.

The indictment alleges the fraud extended from July 15, 2015 until June 14, 2018, when a petition to remove him as guardian was filed.

The deception was discovered when an attorney for the woman reviewed the paperwork, Kibler said.

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Man charged with financial exploitation of nursing home resident

Obstreperous older patient at Mount Auburn leads SJC to tougher nursing home precedent

Mount Auburn Hospital in West Cambridge has involved in a case that set a Supreme Judicial Court precedent. (Photo: Mount Auburn Hospital)

In a case involving Mount Auburn Hospital, the Supreme Judicial Court has restricted the ability of hospitals to force patients into a nursing home. The case is the first SJC interpretation of provisions in a 2009 reform law that strengthened protections for people in danger of having a court-appointed guardian get power to make decisions about their lives, according to lawyers who helped write the legislation and get it approved.

The law was approved after revelations of abuses in the state’s guardianship system. The May 11 ruling by the SJC “is very important,” said Thomas J. Carey Jr., who served on a Massachusetts Bar Association committee that urged state legislators to adopt the reforms. The guardianship provision that the court interpreted “is one of the most important provisions of the whole law,” which reformed the probate system, Carey said.

Mount Auburn had sought to discharge a 79-year-old woman, identified by the initials D. C., to a nursing home in 2016 after she was hospitalized for months with a broken hip as well as heart and kidney problems. The hospital went to court to have a guardian appointed so that the guardian could order D.C. transferred. The hospital asserted that D.C. refused medication, rejected hip surgery and couldn’t understand her treatment options – to the point where she was endangering her health and life.

Despite those claims, a Norfolk County Probate Court judge found that D.C. was not “incapacitated” under the law. Judge George F. Phelan said that although D.C. “may be demanding, difficult, obstreperous and plainly refused to assist or cooperate” with hospital staff, she had “the ability to discern her medical condition” and could make an “informed decision” not to participate in her medical care even though it might endanger her life.

High court takes over

Therefore the Probate Court judge refused to appoint a guardian for D.C. But he did rule that the hospital could discharge her to a nursing home. Puzzled, the hospital asked for clarification, then appealed the judge’s refusal to appoint a guardian.The judge transferred the case to the Appeals Court, asking essentially whether a judge could do what he had just ordered. The SJC took over the case because of its importance.

And the high court answered the judge’s questions with a flat “No”: A patient can’t be forced to go to a nursing home unless he or she is found to be “incapacitated” and a guardian is appointed, the SJC said. A judge must also give the guardian authority to transfer the patient to a nursing home, only after finding that the discharge would be in the patient’s best interest, the court said.

In oral argument on the case, justices seemed frustrated that the hospital couldn’t discharge a patient who didn’t need a hospital’s level of care and was willing to stay for months. “You have a perfectly competent person who loves your hospital – you can’t say, ‘We need your bed?’” one justice asked.

The lawyer for the hospital, Michael C. Boyne, said it was not that simple. “You have a 79-year-old person with a broken hip, she’s immobile with no family support, do we wheel her out?” he said.

The patient who won’t leave

 
 Karen Owen Talley, who represented D.C., said the Probate Court judge had actually found that D.C. did want hip surgery and “no, she doesn’t want to stay in the hospital forever.” Dealing with a competent patient who doesn’t want to follow the treatment plan may require a solution that’s not legal, such as mediation, Talley said.

A footnote in the SJC decision said: “We do not address the legal options available to an acute-care hospital where a patient who is not incapacitated fails to leave upon discharge.”

Carey and six other attorneys involved in the reform law submitted a brief in the case that described the history of the reform law, said Mark A. Leahy, one of the others. “There was a lot of history that wasn’t being briefed,” Leahy said. Without that context, the SJC might have come to a different decision, one that was less friendly to patients like D.C., he said.

Case was hidden

The attorneys came close to not even knowing that the SJC was considering the issue, Carey said. One of the group “happened to see the oral argument,” which is streamed over the Internet by Suffolk University Law School, Carey said.

Lawyers didn’t know about the case because it had been “impounded,” a common occurrence in cases in which medical, psychiatric and other private information about a person is involved. But the SJC impounded not only the personal information, but the name of the hospital and the briefs filed by lawyers in the case. (The name of the hospital was readily available in appeals court records, however).

“I don’t believe that the [reform] statute intended that once it got to the SJC the facts should not be public,” Carey said. The lawyers’ brief argued that “on a broader scale when the SJC is preparing to hand down a major decision, the public has a right to know.”

“Whatever the good intentions of the probate judge might have been, the thought that you can just decide willy-nilly ‘Well, no, you’re not incapacitated, but they can still toss you out into a nursing home anyway’ …” Carey said, describing the importance of the case to the public.

“My view is we need to revisit the way impoundment rules are being interpreted at the highest level to make sure the public can participate,” he said.

The attorneys had to ask for special permission to see the briefs of the lawyers representing Mount Auburn and D.C., he said. The documents they were allowed to examine were heavily redacted, Carey said. Their own brief was also impounded.

Meanwhile, while Mount Auburn’s appeal was being considered, it filed another petition to have D.C. declared incapacitated and a guardian appointed. This time, the probate court judge agreed that she was incapacitated and went through the other necessary steps to have her transferred to a nursing home: He appointed a guardian and gave the guardian authority to have D.C. moved after finding that the transfer was in her best interest.

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Obstreperous older patient at Mount Auburn leads SJC to tougher nursing home precedent