Article Link: Percentage of Economically Insecure Seniors Surges to 75% and Counting

Per this article from the Institute on Assets and Social Policy the financial security of seniors has gone from bad to worse primarily due to declining household assets, inadequate household budgets, and increasing housing costs, Click Here.

Article link Advisor Convicted of Selling an Annuity

New article, California Advisor Convicted of Selling an Annuity, Click Here.  Of course, I don’t know what is true or not, but it is an interesting article.

Required Court Finding Before A Conservatee (LPS Conservatorship) Can Be Denied Medical Decision Making And For Drugs And Medications, K.G. v. Meredith

K.G., an Incompetent Person, etc., et al., Plaintiffs and Appellants v. Larry Meredith, as Public Guardian, etc., Defendant and Respondent (California Court of Appeal, First Appellate District, March 8, 2012, Case No. A132087)

The decision in K.G. v. Meredith is lengthy and relates to more than one important issue.  The following summary pertains to the nature of the finding that the trial court must determine before making a finding that a gravely disabled person under the Lanterman-Petris-Short Act lacks the right to make his or her own decisions on medical treatment for his or her grave disabilities, including involuntary administration of antipsychotic medication under Cal. Welfare & Institutions Code §5357(d); and the nature of the notice that must be provided to the proposed conservatee as a constitutional due process right.  Although the case involves an LPS conservatorship, you might also find the decision relevant for similar medical decision and drug or medication issues that may arise in an ordinary conservatorship of the person with medical decision making authority.

In pertinent part Cal. W&I Code §5357(d) states:

“5357.  All conservators of the estate shall have the general powers specified in Chapter 6 (commencing with Section 2400) of Part 4 of Division 4 of the Probate Code and shall have the additional powers specified in Article 11 (commencing with Section 2590) of Chapter 6 of Part 4 of Division 4 of the Probate Code as the court may designate. The report shall set forth which, if any, of the additional powers it recommends. The report shall also recommend for or against the imposition of each of the following disabilities on the proposed conservatee:

* * * * *

     (d) The right to refuse or consent to treatment related specifically to the conservatee’s being gravely disabled. The conservatee shall retain all rights specified in Section 5325.”

On appeal, the Court of Appeal found:

“Petitioners are entitled to a judicial declaration that, before a trial court may impose a medical disability pursuant to section 5357(d), the court must find that the conservatee or proposed conservatee is incapable of making rational decisions about medical treatment related to his or her own grave disability, that is, lacks the mental capacity to rationally understand the nature of the medical problem, the proposed treatment, and the attendant risks. In doing so, the court must consider the Riese factors, i.e., (a) whether the patient is aware of the nature of his or her grave disability; (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought and otherwise participate in the treatment decision by means of rational thought processes. To permit meaningful review, the record must reflect that the court was aware of this legal standard, that it considered evidence relevant to the standard, and that it made a finding utilizing that standard.

While we grant declaratory relief, we must remand for the trial court to consider whether mandamus relief should be granted. We do so for two reasons. First, remand will give the trial court an opportunity to consider whether the Public Guardian has taken, or will take, necessary action to comply with the law. Second, we recognize that the decisional incapacity finding is the superior court’s responsibility, regardless of the forms submitted by the Public Guardian. The trial court is in the best position to determine in the first instance whether mandamus relief is appropriate.”

The Court also held that as a constitutional right to due process the proposed temporary conservatee also must be served with more than simply notice of the hearing although the statutes do not require such. You should review the Court’s decision for the complete detailed discussion.  However, in pertinent part the Court stated:

“The notice provided by the Public Guardian to the proposed conservatees here did not describe the legal standard for imposition of the disability nor did it require any separate response. It provided contact information for the public defender’s and patient’s advocate’s office, but did not ensure representation. The notices in the record do not set forth a date, time and place for a hearing on the petition or, in the alternative, a date the temporary conservator will be appointed if no objection is interposed. The revised notice form submitted by the Public Guardian is not materially different. The revised physician’s declaration form prompts the declarant to provide evidence on each of the three Riese factors, but there is no indication that, contrary to the Public Guardian’s prior practice, this declaration form itself will be served on the proposed conservatee before the court imposes the section 5357(d) disability. We do not believe that mere absence of objection by an unrepresented party to an inadequate notice given by the Public Guardian can be regarded as the equivalent of “informed consent” to involuntary medication. (See Riese, supra, 209 Cal.App.3d at p. 1320.)

We find that the current practice of imposing a section 5357(d) disability provides inadequate notice and opportunity to be heard and therefore violates due process. (FN:20)  For the reasons stated ante, we remand for the trial court to consider the appropriateness of mandamus relief.”

Computer Games Improve the Brain?

New article link, researchers find that computer games can change your brain and can improve creativity, decision-making, concentration and dexterity, Click Here.  Of course, anything in excess isn’t good, computer games aren’t everyday life, and they diminish real human interaction and problem solving.

Article Says Nursing Home Care Improves, But A Huge 35% Receive The Lowest Rankings

According to the following article nursing home care is improving based on federal inspections, Click Here, but nursing homes that receive only one and two stars out of a total possible five stars still stands at a huge 35%, and nursing homes that received only one, two or three stars stands at 56%.  The following is a link to complete rankings from the Centers for Medicare & Medicaid Services, Click Here. A nursing home is required to provide care and services designed to attain or maintain the highest practical physical, mental and psychosocial well-being reasonably possible for each resident, and to protect each resident from injury.  With all of the current talk about risk management across industry lines, it is clear that there are ample opportunities for improvement in nursing home care risk management practices.

 

Forbes Article Link, Why Elder Financial Fraud is on the Rise

The following is a link to a Forbes article by John Wasik, Why Elder Financial Fraud is on the Rise, Click Here.

NY Times article, fewer beds for men entering nursing homes

The following is a link to a New York Times article re fewer beds for men entering nursing homes.  According to the article, nursing homes like the elderly population are heavily female.  Since Medicaid will only pay for a two-person semiprivate room, and a female will not be placed with a male, it can be more difficult for a prospective male resident to find an immediate room opening thus possibly forcing the family to make other arrangements.  To see the article Click Here.