Tag: Decision making
This week on Hull on Estates, Paul Trudelle and Noah Weisberg discuss the Law Commission of Ontario’s Final Report on legal capacity, decision-making and guardianship in Ontario.
On Friday May 13th, 2016, U.S. District Judge Kimberly J. Mueller denied a family’s request to keep their brain dead toddler on supportive measures indefinitely. The judge did, however, grant a one-week extension to the order restraining Kaiser Permanente Roseville Medical Center (Kaiser Permanente) from taking the boy off a ventilator.
In early April, two-year-old Israel Stinson suffered an asthma attack, depriving his brain of oxygen for more than forty minutes. After a second attack, and after suffering a cardiac arrest, Israel was placed on a ventilator and declared brain dead. When Kaiser Permanente staff moved to take Israel off the ventilator in accordance with California Health and Safety Code § 1254.4(a), his parents filed an ex parte application with the court to block the staff from disconnecting mechanical support. Israel’s mother argued that it is on the basis of religious grounds, constitutional rights to privacy, and due process as his mother, that she is objecting to the removal of the ventilator. In a heartbreaking video posted recently by Life Legal Defense Foundation, Jonee Fonseca can be seen tickling her little boy and saying “Israel, you have to stop fooling everybody” and “I know you’re going to come out of this, baby.” And therein lies the second tragedy. In the days and weeks following Israel’s placement on a ventilator, the boy has been declared brain dead by no fewer than three physicians at Kaiser Permanente. According to the Uniform Determination of Death Act, brain death is defined by either: (i) irreversible cessation of circulatory and respiratory functions, or (ii) irreversible cessation of all functions of the entire brain, including the brain stem. There is no recovery from brain death. Arthur Caplan, head of the Division of Medical Ethics at New York University, and David Magnus, Professor in Medicine and Biomedical Ethics at Stanford University spoke bluntly about brain death in Time Magazine:
Concepts matter in medicine… Brain death is death. It has nothing to do with being in a coma. It does not refer to a permanent vegetative state. It does not refer to being severely brain damaged.
Caplan and Magnus would like to see the phrases “brain dead” and “life support” stricken from the conversations that take place between hospitals and families as i) the use of “brain dead” gives the impression that the person is not really dead and ii) “removing life-support” sounds a lot like termination of care for a living person. While acknowledging that a brain death diagnosis can be “a devastatingly hard thing to accept”, they argue strongly that such language confuses families and fundamentally lays the groundwork for cases such as this one, and that of Jahi McMath and Marlise Munoz, discussed in a previous blog.
Complicating matters is the assertion by one doctor that there may be hope for little Israel. In a court declaration, Dr. Paul Byrne, a pediatric neonatologist, stated that the toddler “may achieve even complete or nearly complete neurological recovery if he is given proper treatment soon”. Dr. Byrne is a former president of the Catholic Medical Association and current president of a faith-based group called Life Guardian Foundation. According to their website, Life Guardian Foundation is an organization dedicated to the belief that a brain death diagnosis is one promoted by physicians “for the sole purpose of organ transplantation and human medical experimentation”.
Israel’s parents will use the one week extension to take the case to the 9th Circuit U.S. Court of Appeals. They also intend to use the one week reprieve to continue their desperate search for a medical facility in New Jersey that might accommodate the family and agree to take over the boy’s “care”. New Jersey is one of only two states in the United States with a law allowing religious objection to a declaration of death on the basis of neurological criteria. Jahi McMath, for example, lies today in a bed in a New Jersey rental apartment with 24-hour nursing care, as she has for the past two years, while her parents await a ruling on their recent lawsuit to have her death certificate revoked.
Kaiser Permanente is complying with the order to leave Israel on a ventilator until Friday May 20th. A GoFundMe page set up by Fonseca has raised more than $15,300 towards the costs of Israel’s care and transfer.
This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the Law Commission of Ontario’s interim report on Legal Capacity, Decision-Making and Guardianship.
A copy of the report is available here: http://bit.ly/1PthwTI
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
In today’s fast paced world, time just seems to slip away. More and more, we are putting things off because of our hectic lives. Funeral planning is one common example of this phenomenon.
Where it was once the norm to hold a funeral for our loved ones almost immediately after they passed, traditions are slowly changing. As this article on the subject points out, for those not bound by cultural or religious customs, it is increasingly common to delay the funeral until a more convenient time. However, as the article also points out, death isn’t convenient.
There are many reasons that families are choosing to delay funerals. Often, it is an issue of practicality. With families and friends frequently spread out across continents, the decision may be taken to wait until everyone can be in town (often not possible with two to three days notice). Setting a date in three months time, however, may increase the likelihood that more loved ones can attend. Coordinating with school schedules and vacations is another reason why more people may choose to delay.
There are also seasonal issues to consider. A burial in the middle of February in certain regions is not always practical. Likewise, a family member who requested that their ashes be scattered in a lake near a favourite cottage, may have preferred that their family hold off until the summer months to honour their wishes. Alternatively, the family may choose to wait until a particular date that holds a special meaning to the deceased and their loved ones.
Delaying a funeral is a very personal choice which may not work for everyone. Funerals help with the grieving process and provide closure. Sometimes postponing for several months can unnecessarily prolong this process which may add additional pain and stress to an already difficult time. Funerals also provide an opportunity for loved ones to grieve together. Gathering together soon after the death is the time when the support of your loved ones is most needed.
Delayed funerals can be controversial, with strong views on either side. It raises the question, who gets to decide? If the deceased had a will that named an Estate Trustee, then the decision will ultimately be made by this person. Even where the testator included their funeral wishes in the will itself, the Estate Trustee is not legally bound to follow them. If there is no will, then the decision will typically fall to the immediate family.
Of course the terms of the will carry moral weight and can provide much needed guidance and settle potential disputes regarding what the deceased would have wanted. This is why these directives are more often followed then not. While pre-planning can alleviate some of the issues that may arise, the importance of an open family discussion cannot be overemphasized. The decisions that are made with regard to funerals are often emotionally charged and working through them together in a transparent way can, ideally in advance, avoid potential conflicts down the road.
Thank you for reading.
Personal decision-making processes and consideration often evolve as an individual ages. Typically, old age is associated with a decline in cognitive ability and decision-making skills. Recent study results, however, raise the question of whether age-related cognitive decline really does impact our ability to make decisions relevant to management of affairs and estate planning.
A set of studies recently conducted by the University of Basel and the Max Planck Institute for Human Development suggests that older individuals are able to make simple decisions just as well as younger counterparts. Where the results of the study were differentiated was in respect of complex decision-making scenarios. The study credited the enhanced ability of the younger test subjects to make multifaceted decisions more easily than older participants to the association of aging with reduced “fluid” cognitive abilities.
Decline in fluid cognitive abilities has been linked to an inability to understand the consequences of making a particular decision when similar situations have not previously been experienced and determining the most likely results of a certain course of action requires research and learning.
The results of the study do not take into account the prevalence of age-related conditions that do contribute to compromised mental capacity and decision making with age. Approximately 15% of Canadians aged 65 or older live with Alzheimer’s disease and other forms of dementia.
Although there is a presumption of mental capacity, in estate litigation, old age is often considered as a factor in determining whether a person was likely to have possessed mental capacity to execute certain documents or conduct certain transactions at a relevant time. It is important to remember that, just because a person is elderly, this does not in any way mean that he or she lacks the cognitive ability to make valid decisions, and may even be as capable of doing so as a younger person.
Have a great weekend.