Opinion: Statutes Do Injustice To Conserved People In End-Of-Life Situations
These are not otherwise healthy people who will recover and have a long life to look forward to, for whom aggressive measures make sense. These are frail people at the end of their lives who are being treated for conditions for which there is no cure and no possible recovery. The purpose of the "treatment," and one uses the term cautiously in these situations, is solely to bide time pending a probate decision.
I am not writing this piece critical of how the probate court functions. The court in which I do most of my work does a wonderful job with all its cases. Probate courts provide a safety net for hundreds of people who would otherwise have no one to look after them.
But procedural requirements take time to process. And in busy courts, even with the best staff, mistakes happen, motions are lost, hearings must be continued. Our statutes function well on behalf of people under ordinary circumstances. In emergency situations, they do not provide conservators with a way to fast-track judicial decisions having to do with life-and-death matters.
Studies show that where there is no chance of recovery, the vast majority of people do not want aggressive measures at the end of their lives. If a conserved person is incapable of telling us what she wants under these circumstances, is it ethical for us to ignore her suffering while we wait as the probate process drags on? Treatment imposed on people without informed consent may be harmful, or medical battery. Do people lose the right to be free of harm when they are conserved? And what of the "best interest" standard that governs probate determination regarding conserved people? It appears that in these situations we abandon the standard.
Would any of us want a family member to spend the last days of their lives in the manner I have described above in the interest of, for example, seeking the address of a long lost nephew who has not seen his aunt in 20 years, to satisfy notice requirements? And if that nephew is found and objects to the motion for CMO, then what? Is it ethical for us under these circumstances to attend to every statutory requirement and every procedural detail, no matter where they lead and no matter their consequences?
Many may think that what I have described above happens to so few people that it is not a matter of great importance in the larger scheme of things. But if the probate court is really meant to serve as a bulwark against the abuse of conserved people, we must recognize that our statutes as they are currently written do not function well under all circumstances. Probate administration should work with the legislature to address gaps in the statutes in order to meet the needs of conserved people in medical situations that require an immediate response.•