Decker Jones McMackin McClane Hall & Bates

Guardianships over the mentally ill

Posted on Updated on

The United States has one of the highest rates of mental illness in the world, including major depression, schizophrenia, bipolar disorder, obsessive-compulsive disorder, panic disorder, post-traumatic stress disorder and borderline personality disorder.  The National Association for Mental Illness reports “without treatment the consequences of mental illness for the individual and society are staggering: unnecessary disability, unemployment, substance abuse, domestic violence, homelessness, inappropriate incarceration, suicide and wasted lives.”

Families with mentally ill children, siblings, or parents find that there is little they can do to help their mentally ill family member.  There is limited help from both the Probate Code or the Mental Health Code.

The Probate Code allows for guardianship over incapacitated persons.  “incapacitated person” being defined as an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs. This sounds like a mentally ill person would qualify as an incapacitated person, and they do for a short period of time.  Once the guardianship is obtained, the party would regain capacity and the guardianship would terminate.  If you have ever dealt with a mentally ill person, the minute they are no longer forced to take medication they usually won’t take it!  Therefore, there is a gaping hole in the statute concerning mentally ill people.

The Mental Health Code does not specifically address the guardianship issue for mentally ill people.  The code currently defines mental illness as an illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency, that: (A) substantially impairs a person’s thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior.  This statute does allows for emergency detention of those who are a threat to themselves or others, to be held in a mental health facility and treated pending a court proceeding.  If the Court decides to keep the party, then they will get stabilized and eventually sent home with instructions to take their medication, which they rarely do and the process starts all over again.  If the Court decides to send the party home, then they will likely stop taking their medicine and the process starts all over again.

In Texas, the mental health code has not been revised since 1985, but it is seriously needs an overhaul.  Last year, the nonprofit advocacy organization, Texas Appleseed asked lawmakers to replace the existing mental health code with one that reflects contemporary mental health needs.  The Appleseed report’s recommendations include eliminating provisions in the code that call for law enforcement to obtain a warrant to detain someone in a mental health crisis and adding explicit laws that allow officers to confiscate firearms from people who become dangerous as a result of their mental condition.  Another recommendation calls for the adoption of a uniform one-page intake form for law enforcement officers to complete when they take someone in crisis to a mental hospital. Currently, forms across the state vary; some are many pages long and take hours to complete.   Representative José Menéndez, Democrat of San Antonio, filed House Bill 245, which would allow hospitals to detain mentally ill people for up to 24 hours.  This is because hospitals currently do not have legal authority to detain people who voluntarily enter their facilities in search of mental health care but then decide to leave.

While the suggested changes are a great start, they do not go far enough.  We need to address the issue of how family members are supposed to help their loved one get the help they need to manage their life, stay on medication, find housing, etc.  If your family is affected by these issues, please do not hesitate to contact your representative to voice your concern!

Advertisements

Beware: Texas law does not require CPR in senior living facilities

Posted on Updated on

Earlier this month, the news reported on a 911 call that was taken by a nurse in California who refused to give emergency CPR assistance to a dying senior in her care.  The refusal of this nurse to assist a dying resident is nothing less than shocking, however, the facility was within its rights to refuse care.

In Texas, facilities, even licenses facilities such as those regulated by Adult Protective Services, have the option of not providing CPR.  However, they are required to notify  individuals during the admissions policy process that they will not administer CPR.

The question is whether notifying people upon admissions is reasonable.   It is likely that facilities around the state have a form that is signed during admissions stating they are aware of the policy of the facility.  However, during the admissions process, there are tons of documents to sign and many people do not even read them.  Does this constitute notice?

Does the nurses refusal to administer aid constitute a criminal case in Texas? Failure to stop and render aid (FSRA) is governed by Chapter 550 of the Texas  Transportation Code. The penal code typically governs criminal offenses  resulting in possible confinement and a conviction for FSRA can result in jail time,  probation and a fine.   However the Texas nurse is not likely guilty of FSRA because the rules are pretty clear that the facility is not required to provide CPR.  If this were you or me, we would be required if we knew CPR.  Funny!  So beware of the facilities policy before you place your love one in a senior living facility!

How to sue or defend in small claims court.

Posted on Updated on

Have you every been sued or had a need to sue someone else but couldn’t afford an attorney?  If the total recover is no more than $10,000, than a Small Claims Court  may be just right for you!  Then Small Claims Court may be a better alternative than hiring an attorney.  Being sued is never a joy and many times it is very overwhelming to the parties.  Well there is help to the average person on how to deal with a Small Claims case.   There is no need to be worried, as a Justice of Peace Judges are average people who are just deciding who is right or wrong based on the facts presented.   So with a little help you can master this Court’s procedure and represent yourself.

The Texas Young Lawyers Association put together a great brochure that helps you understand what to expect in Small Claims Court.

HowToSueinSmallClaimsCourt_Page_01

http://goo.gl/gWWkY

Do I need a living will?

Posted on Updated on

This is a common question I get asked by a variety of different types of clients.  The simple answer is YES!  A living will is not really a will, but is a physician’s directive (also known as an advanced directive or Do Not Resuscitate).  An advanced directive is governed by the Texas Health and Safety Code to allow people to choose what type of care they want if they need life-sustaining treatment.   I believe that everyone should have a Physician’s Directive to ensure that they get to make the decisions about life support and not burden their family with such decisions.

Alzheimer’s Disease claims another victim

Posted on Updated on

Arlington police have confirmed that the body found on January 5, 2013 was that of Maria Arrocha, an Alzheimer’s patient who was reported missing in December.  The Tarrant County Medical Examiner ruled that Maria Arrocha died from exposure to the elements.  Arrocha was found near the 1500 block of E. Abram Street near Stadium Drive in east Arlington. Officers were searching for Maria Arrocha who has been missing since Dec. 18, said Arlington police Sgt. Christopher Cook.

articles_police_121912More than 5 million Americans have Alzheimer’s or similar dementias, and that number is expected to rise rapidly as the baby boomers age. The Texas adult population with disabilities has grown to 1,683,350, which is a 300,000 jump in the last 10 years.  As more and more of our citizens, reach retirement age there are going to be more dementia related problems.  

Therefore, both the Texas House and Senate 2013 budget plans include $5.2 million for the Darrell K Royal Alzheimer’s initiative in 2014. The private fund, announced last year to spur Alzheimer’s research, was named for the iconic University of Texas football coach who died in November after living with dementia for several years.

 

The future of Alzheimer’s

Posted on Updated on

One of the largest burdens on American’s health care system is caused by Alzheimer’s disease and other related dementia.  Currently over 5.4 million people are living with the disease and more than 15 million Americans are caring for persons with Alzheimer’s and other dementias.  Alzheimer’s disease is the sixth-leading cause of death in the US and the ONLY cause among the top 10 that has no cure, prevention treatment or can even be slowed. Is Alzheimer’s our new Cancer?

A strategic plan is being developed by the Journal of Alzheimer’s Association.  States across the country are vamping up their APS departments, elderly abuse divisions of district attorneys offices are popping up, and drug companies are trying to find cures, ways to predict the disease and even ways to slow the disease down.

The pharmaceutical company Eli Lilly & Co. show promise with new experimental Alzheimer’s treatment due to decline of cognition in some patients.  Read the Article.  Researches find promise in attacking a key building block of the Alzheimer’s disease.  Read the Article.  TauRx Therapeutics is conducting a clinical trial on a new treatment for Pick’s Disease (a form of Dementia which is similar to Alzheimer’s.  Read the Article.