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McCurrie McCurrie
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Clarity is key to ensure greatest value of guardianships

When it comes to matters of guardianship, living wills or advance directives, clarity is king. The reason these kinds of documents are drawn up by New Jersey estate planning attorneys is to make sure that if an individual has distinct wishes for how he or she is to be treated in end-of-life situations that they are laid out clearly. Assigning a guardian or power of medical attorney is an important way to be sure one has an advocate who can speak on a patient's behalf.

Failure to provide clear statements about what is desired in terms of living wills or guardianship assignments can lead to unwanted legal battles and disruptions in care. A case out of Massachusetts offers a glimpse of what we mean.

The case involves a 56-year-old man who is hospitalized with Stage 4 lung cancer. Adding to the complications of his situation is that he is a diagnosed schizophrenic. Two sisters of the man are his guardians and apparently one of them has been very aggressive in her advocacy. She's been so forward, in fact, that the hospital has gone to court to have the sisters removed as legal guardians.

The hospital's attorney told a judge this week that one of the two sisters, a nurse herself for 35 years, was recently so disruptive that it interfered with her brother's treatment and that of other patients in the hospital. The hospital says it went so far as to issue a no trespass order against her.

The sister told the judge that she believes her brother is getting short shrift in terms of care because of his mental illness. She took particular issue with actions by hospital staff when her brother recently stopped breathing.

What exactly happened isn't clear. The hospital states that it believes there is a do not resuscitate order in place for the brother, but it doesn't know where it came from. The sister claims her brother never signed such a document. But she says even if he did, it should be invalid because of his mental condition.

For now, the judge has decided to keep the sisters in place as guardians. An attorney has also been appointed to represent the brother and to serve as a go-between for the hospital and the angry sister. More hearings are expected to follow.

Source: The Daily Item, "Hospital locked in battle over patient's guardianship," Taylor Provost, March 15, 2012

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