(The pdf for the issue in which this article appears is available for download: Vol. 37, Issue 5.)
The narrative portion of the training video opens in a hospital room. An older woman sleeps in a hospital bed as a younger woman, her daughter, sits nearby. The older woman wakes.
“How long have I been here?”
“Mama, you can’t walk yet. You broke your hip, remember?”
“How long have I been here? It feels like forever.”
“Just four days, Mama. Now you have to try to get up and start walking a bit.”
“I want to go home.”
Mrs. Mendez is recovering from hip surgery and is confused and having trouble making decisions. Her daughter Espy has stepped in and is trying to assist her mother through this complicated time.
Since the 1980s in Massachusetts, advocates of seniors and of people with disabilities have been engaged in the daunting campaign to reform the state’s guardianship laws and procedures. As one of the original 13 colonies, the state is long burdened with archaic legal notions of how to address the needs of mentally or intellectually incapacitated persons. For example, until as recently as 1992, a petition could be filed in Massachusetts probate courts for the appointment of a conservator for an individual on no other reason than the basis of “advanced age.”
An Initial Resource: “Guardianship: the Hidden Issues” Video
In the 1990s, advocates organized the Massachusetts Guardianship Task Force (MGTF) and, in the environment encouraged by a reform-minded Attorney General Scott Harshbarger, year after year proposed legislation which included concepts of legal due process as well as concepts based on knowledge derived from decades of experience in medicine, psychiatry, and gerontology. When a succession of Legislatures showed no real inclination to embrace meaningful reform, advocates and stakeholders turned their efforts to community education, to build a greater constituency for reforms.
The late Judith Lennett secured funding from the Attorney General’s office and led the project to produce a training video that dramatized the lack of due process in guardianship proceedings which stripped respondents of freedom and autonomy. “Guardianship: the Hidden Issues” told the story of Emily Gale, plunked into a nursing home involuntarily because her treating physician described her as “befuddled” and because she was refusing cataract surgery.
The first audience Lennett presented the video to was a group of Probate Court judges at a judicial conference. They learned about the inadequacies of medical certificate forms in use. For example, a medical certificate reciting nothing more than: “Senile dementia. Dr. Jones,” highlighted the all-too-common phenomenon where a respondent does not even appear at a guardian or conservator appointment hearing, and situations where the allegedly incapacitated person loses freedom and autonomy without benefit of counsel.
Some sensational press coverage by the Boston Globe’s Spotlight Team of overreaching, if not larcenous, fiduciaries contributed to the growing awareness that as a society we are not responding to the needs of an ever increasing cohort of incapacitated seniors and persons with disabilities. Dr. Jennifer Moye, another MGTF member, was engaged at the national level on the failure to assess incapacity in older adults in any meaningful fashion. She, with the support of the American Bar Association (ABA) and American Psychological Association (APA), produced several guides on capacity for lawyers and judges.1
Fast-forward to the early 2000s when all the stakeholders (MGTF and other advocates of older or disabled people), the judiciary, and the Massachusetts and Boston Bar Associations joined forces to propose the enactment of the Massachusetts Uniform Probate Code (MUPC), Article 5 of which was the Uniform Adult Guardianship and Protective Proceedings Act (UAGPPA). The proposed legislation enshrined all the due process reforms we had been clamoring for decades: the right to counsel, “limited” guardianship (that is, intervention only where the person lacks capacity), further oversight of the court appointed guardians, etc.
Success came in 2008, when the MUPC was signed into law by Governor Patrick and implemented in 2009, with astounding vigor and commitment under the leadership of Probate Court Chief Justice Paula Carey.
Development of an Updated Video Resource
Even as rule changes, forms, and procedures were being redesigned and the reforms implemented, Judge Carey urged the stakeholders to develop methods of training, educating, supporting, and monitoring family guardians (they are by far the greatest proportion of court-appointed guardians, and take on very serious responsibilities on behalf of their loved ones). She urged advocates specifically to develop interactive videos to introduce the basic concepts of guardianship law and procedures, and to inform the public on how to avoid the drawbacks of guardianship by effective life planning. This approach of educating all to the very real value of executing health care proxy documents and durable powers of attorney documents should obviate the need for court intervention when incapacity occurs.
Judith Lennett and her small non-profit, Northnode, took up the challenge. A seed-money grant from the Massachusetts Guardianship Association, with Judy Flynn as its President, funded her search for resources to make the production of a family guardian training video a reality. She developed a proposal for “Stepping In When Help is Needed” and a budget, and secured a grant from the Attorney General’s office to begin the project in earnest. Northnode staff and the producers wrote a script, and Lennett recruited a talented group of volunteer actors and actresses and hired a professional videographer. Judge Carey agreed to appear in a prologue and epilogue to explain its purpose and encourage its audiences. We secured the locations for the filming with the cooperation of the Suffolk Probate Court and the Milton Hospital, and the video was shot in two days. Post-production was extensive, and credit goes to Northnode and Nesson Video Productions for contributions well beyond their compensation—the production was a triumph of volunteerism.
“Stepping In When Help is Needed” tells the story of Dolores Mendez, a hospital patient recovering from surgery to repair a fractured hip. Her daughter Esperanza (Espy), like many other devoted but overwhelmed family members in such circumstances, must step in to deal with the crisis. The hospital discharge planner tells Espy that Mrs. Mendez is now stable and must move on to a rehabilitation facility where hopefully she will be able to regain the ability to walk. However, Mrs. Mendez is refusing to go to the rehab facility, which she calls a “nursing home.” She has not executed a health care proxy document, and in her confusion, will not sign any documents without first consulting with her husband; Espy tells us that her father died two years ago. The video shows the discharge planner’s ultimatum and Espy’s consultation with a geriatric care manager and an elder law attorney. The video also details a court hearing on Espy’s motion for appointment of a temporary conservator and appointment of a temporary guardian with a grant of authority to admit Mrs. Mendez to a rehab facility.
The optimal use of the video is a presentation by an experienced facilitator to a group of family guardians, or professionals who deal with such situations. There are several pauses in the action where a facilitator can pose questions or invite comments and assist in the discussion. Judith Lennett developed materials for use by the facilitator, including basic information, mock pleadings, etc.
Handbook Resource Currently in Development
Our next project is a complete re-write of the now-obsolete 2004 Handbook for Guardians of Nursing Home Residents in Massachusetts.2 The Handbook gives reader friendly instructions on how to secure a guardianship for an incapacitated nursing home resident, and how to successfully complete the long term care Medicaid application process. The project of re-writing the handbook is already underway by Ellen O’Donnell, who designed the syllabus for the course at the Gerontology Institute at the University of Massachusetts Boston, for which the Handbook was the course project. The current plan is to change the identity of the individual nursing home resident and incorporate the story of Mrs. Mendez.
2 The Handbook is still available online at http://bookstore.iuniverse.com/Products/SKU-000081553/A-Handbook-for-Guardians-of-Nursing-Home-Residents-in-Massachusetts.aspx. ■