Posted on: Sunday, December 16th, 2012
The story of Catherine Jones is unique and it isn’t. It is typical in many of its facts: an older person with a strong sense of independence, fighting to retain the right to decide how she wants to live out her final days. But unique with respect to the clarity with which her story captures some of the most difficult issues that courts and families struggle with in this time of aging and cognitive impairment. (The story is true, but the names have been changed.)
Like so much of what goes on in this arena, there is no moral to this story. No right or wrong. No winner or loser. Just a result, and a question: Is this the best result?
I was originally contacted by an adult protective services worker, Bridgett. Adult protective services (or “APS” as it is called) investigates and at times intervenes in matters involving the protection of vulnerable adults.
Bridgett became familiar with Ms. Jones shortly after Ms. Jones was transferred from a psychiatric ward in Grand Rapids to a nursing home in mid-MIchigan. Bridgett’s investigation revealed that Ms. Jones was a widowed farmer with no children. She was in her mid-eighties and lived alone, although she had a relatively strong social network of neighboring farmers.
She was a hoarder and the conditions in which she lived, though abhorrent and possibly dangerous in the eyes of most people, were not unusual from the perspective of Bridgett. The truth is that many elderly people with mental illnesses are hoarders, and have a very different sense of hygiene than the younger generation would find acceptable. Hoarding, aside from providing entertainment value to viewers of some reality television programs, is not an uncommon behavior among aged, especially those who live alone, and even more so among those with cognitive impairments.
The situation giving rise to this case began when Ms. Jones was involuntarily committed to a psychiatric ward as a result of a high level of anxiety that she was experiencing, and based on the finding that, as a result of her living conditions, she presented a danger to herself.
That event, which I was not involved with, was a mental health commitment. To involuntarily commit someone to treatment, it must be established that they are a threat to themselves or others. Apparently, on the day of that hearing, a judge so found. But mental health commitments are intended to be short term arrangements. Providing professionals the opportunity to address the risk and release the individual to an appropriate alternative setting where they can thrive – or as they say “the least restrictive setting” that is appropriate in light of their needs and condition.
Our legal system has long since dropped the idea of institutionalizing the mentally ill. Many mentally ill people who have periodic psychotic episodes are walking the streets among us, posing no particular risk while they are complying with treatment orders whether that be medication or counseling or both.
Ms. Jones was released from the psychiatric facility to a nursing home, and it was while she was in the nursing home that a guardian was appointed for her. That person was Mr. Ford, an area farmer who had only known Ms. Jones for the past few years.
A guardianship is a very different concept from a mental health commitment. Now we’re talking about taking away a persons rights to make their own decisions forever – or until a court decides the need for protection no longer exists. The standard for imposing a guardianship is that the person is unable to make or communicate informed decisions.
When the nursing home no longer felt that Ms. Jones was suitable to remain with them, the guardian arranged for Ms. Jones to be transferred to an assisted living facility, notwithstanding the fact that Ms. Jones did not want to go to an assisted living facility, but instead wanted to return to her home. In any event, Ms. Jones was living in the assisted living facility when I met with Bridgett and at the time of trial.
In our first meeting, Bridgett expressed her opinion that Ms. Jones clearly did not need or deserve a guardian. Bridgett believed Ms. Jones was being kept in an assisted living facility against her will, and it was her right to return to her farm and live there with her animals in the manner she so chose. She was open to the idea that Ms. Jones may need some help with financial decisions.
Bridgett also presented me with a report from a psychologist that concluded that not only could Ms. Jones make her own informed decisions, but that her intellect tested well above average in most areas for persons of her age. Bridgett was my client, so if I accepted the case I would be advocating for her position. I accepted. How could I not?
Ms. Jones’s resources were somewhat vast: hundreds of acres on several parcels in two counties, a small herd of cattle, and a variety of old tractors. But she was running out of cash. A situation exacerbated by the monthly cost of being in an assisted living facility.
At trial there were several witnesses. Mr. Ford explained that, if allowed to continue to act, Ms. Jones would remain in the assisted living facility until arrangements could be made for her to return home, if and when he determined it would be safe to do so. In the meantime, some of the cows and tractors would have to be sold to pay bills.
Two neighbors, David Smith and Brandon Johnson, both farmers, testified that they had known Ms. Jones for more than thirty years, and that they lived close by. They testified that she was certainly different. She did not think of her cows as farmers do, to be raised and sold for profit. She named each of them. To her they were like children. With a little help cutting hay and moving bales, which they had traditionally provided, she could manage the herd, and the cows were well-cared for. They said Ms. Jones should be allowed to return home and that returning to her home is in her best interests and would make her happy.
And Ms. Jones took the stand. Her testimony clearly demonstrated her understanding of her finances, her resources, and her current situation. She stated that she did not believe her current level of understanding and capacity was necessarily a function of the medications she was now being directed to take, and did not know if she would continue to take those medications if the guardianship was terminated. Particularly telling was her ability to correct Mr. Ford regarding the condition of her tractors, each of which she could identify by make and model. She knew how long they had been sitting and what it might take to get them working again.
The issues before the court were whether some of her land, cows and tractors should be sold to pay her expenses. Her preference, as advocated by my client, Bridgett, would be to terminate the guardianship, allow her to return home (and thereby reduce the immediate financial strain), and to sell what parcels of land she chose, if necessary, but preserve her cattle and tractors, because to her, the cattle and tractors were not assets to be sold to pay bills, but pets, friends, and the things that gave meaning and quality to her life.
The psychologist’s report had been filed with the court and was therefore part of the record the Court could consider in making its findings and decision.
At the end of the day the Judge terminated the guardianship, but not without expressing his outrage at the proceeding and the result. He recognized, that under Michigan law, we do not institutionalize the mentally ill. Although he predicted, and may well prove correct, that in a short period of time Ms. Jones will go off her medications and decompensate, stop cleaning herself and live in squalor. But he said, if, as was the case with Ms. Jones, at that moment in time when her capacity was being determined, the question is whether she can make and communicate informed decisions, it was clear that she could.
Mr. Smith agreed to take her to the assisted living facility, pick up her things, and drive her home.
We are an aging population. People live longer now than in any time in history and often with age comes cognitive impairment. The law was created to deal with issues of another age, and struggles to address the rights of the aged and impaired as it exists today. Adult children of older adults struggle with the same issues as they try to do “the right thing” for the parents they want to protect. It’s a challenge that is only going to get worse as the baby boomer generation enters the population of the very old.
And for now, Ms. Jones is home with her cows