Regular readers will note that I have a fondness for citing sources. It could, in fact, be said that I’ve never met a bibliography I didn’t like. Bibliographies are good things. So it was a delight to find a list of four articles by Anne Lazarus, Democratic candidate for Superior Court Judge. I was only able to track down one of them easily. Given the closeness of the primary it seemed prudent to write on this one and perhaps take the time to find the others later.
Judge Lazarus is currently on the Philadelphia Court of Common Pleas, Orphans’ Court Division. In the Spring of 2003 The Temple Political and Civil Rights Law Review (vol. 12, p. 349-352) entitled “Lawyering for the Mentally Ill.”
In the article she discusses some of the problems that arise when someone needs a guardian in either the short term or the long term. In Pennsylvania guardianships are handled by the Orphan’s court while mental health issues are handled by the civil division. In cases where the issues overlap there can be problems.
The Commonwealth of Pennsylvania has the nation’s second largest percentage of population over the age of sixty-five. Along with this growth in the elderly population has come an increase in the number of guardianship petitions filed before the Orphans’ Court. Indeed, the majority of guardianship proceedings arise in the context of elder care
Unless an individual has made arrangements and left documentation, such as a power of attorney or an advance directive, the courts must decide who can make medical decisions for them in the event that the person becomes mentally incapable of doing so for themselves. The issue often arises when the person in question is hospitalized and medical staff think the person is not mentally capable of making decisions for themselves. Even if there are relatives who can assume this responsibility they do not always agree amongst themselves what should be done or who should make the decisions.
Frequently, this scenario is complicated by the fact that the alleged incapacitated person is actively refusing the treatment which has been deemed by doctors to be medically necessary. In these instances the courts are asked to substitute their judgment for that of the incapacitated individual or appoint someone else to do so – ideally someone who will make a thoughtful and reasoned decision in the best interests of his or her ward.
The judge ends her article with a hypothetical scenario of a depressed elderly woman who is refusing a lifesaving medical procedure. Lazarus says the lack of adequate social services is one reason why theses cases wind up before the court.
This was an interesting article and very thought-provoking one. Do we want the courts making these decisions? If so, shouldn’t judges have some kind of special training? More importantly, we should all have made advance plans and try to discuss these issues with elderly relatives.
For more information on Judge Lazarus and a full list of her writings see her campaign site.