Elder Law Section submits request to file amicus brief in
Alzheimer’s case
Sept. 13, 2011 – Pursuant to Article VII, Section 2(a) of the
State Bar of Wisconsin Bylaws, the Elder Law Section of the State Bar of
Wisconsin has submitted a request to the Board of Governors for
authorization to file an amicus curiae brief in the pending
Wisconsin Supreme Court case of Fond
du Lac County v. Helen E.F., 2011 WI App 72, on
Appeal from the District II Wisconsin Court of Appeals.
This case involves the appropriateness of the use of Wis.
Stat. ch. 51 mental commitment proceedings for a person with
Alzheimer’s dementia. Helen E.F. is an elderly woman
with Alzheimer’s dementia. Her condition has regressed to the
point that “she is very limited in any verbal communication.”
Helen was taken to St. Agnes Hospital on April 12, 2010, because she
was exhibiting aggressive behavior in the nursing home where she had
been residing for the last six years. Various procedural issues ensued.
Ultimately, Helen was detained as the result of the second of two ch. 51
proceedings. She appealed the decision.
Issues related to the court’s competency to proceed were raised
but not ultimately addressed by the court of appeals, which decided the
question as to whether an individual whose affliction is
Alzheimer’s qualifies as an individual with a treatable mental
illness for purposes of ch. 51.
Trial court
The sole witness at the final hearing in the ch. 51 proceeding in the
lower court, psychiatrist Dr. Robert Rawski, testified that Helen
“suffers from Alzheimer’s Dementia with a behavioral
disturbance,” that Helen “has progressive dementia”
and “has been in a nursing home for the last six years.”
Rawski explained that Helen’s “dementia has progressed to
the point where she is very limited in any verbal communication”
and she is “so cognitively impaired by her dementia” that
she is unable to express an understanding of the advantages or
disadvantages of medication.
Rawski further explained that Alzheimer’s dementia can involve
behavioral disturbances such as “poor judgment, aggression towards
others, periods of agitation [and] wandering,” and that
“[c]ognitively, [dementia] is not considered to be a treatable
mental disorder. It’s a progressive mental defect that is not
treatable.”
Rawski indicated, however, that the behavioral disturbances resulting
from dementia are subject to treatment. He said that treatment consists
of using medications to address impulsivity, agitation, and physical
combativeness.
Based on Rawski’s testimony, the trial court found that the
grounds for a ch. 51 mental commitment and an involuntary medication
order had been proven by clear and convincing evidence. A ch. 51
commitment order and an involuntary medication order were entered
following the bench trial. Helen appealed both orders.
Appeals court
The District II Wisconsin Court of Appeals reversed the finding that
Helen was not a proper subject for detainment or treatment under ch. 51
because Alzheimer’s disease is not a qualifying mental condition
under that chapter.
At the court of appeals level, amici briefs were filed by
Disability Rights Wisconsin and the Coalition of Wisconsin Aging Groups
in support of Helen E.F.’s position,
and the Wisconsin Counties Assoc. in support of Fond du Lac County.
Principles of law and Elder Law Section
involvement
The Elder Law Section has over 900 members who represent individuals
who are elderly and individuals with disabilities, including mental
illness. Elder Law Section members frequently handle cases involving
individuals afflicted with Alzheimer’s.
We, the Elder Law Section members, see these cases both from the
perspective of assisting an individual who is recently diagnosed with
Alzheimer’s to “put their affairs in order” including
the execution of powers of attorney for health care.
We also see the family members attempting to help an individual in
later stages of the disease, in seeking out and obtaining appropriate
care and services. The issues of the appropriate treatment and autonomy
for these individuals are paramount.
The expressed principle of law in this case involves the interpretation
of mental Illness within ch. 51 involving mental commitments, and the
question of whether Alzheimer’s is included in that definition.
The underlying principles of law involve the interaction between when it
is appropriate to use ch. 51, and when it is appropriate to use ch. 55,
to obtain psychiatric treatment.
Finally, an area that is not addressed in the decision on appeal, but
that may be significantly affected by the court’s decision, is the
ability of family members or an agent under a durable power of attorney
to admit an individual with Alzheimer’s to an assisted living
facility or skilled nursing facility, if the court finds
Alzheimer’s to be a mental illness. A finding that
Alzheimer’s is a mental illness will effectively invalidate
advance planning in the form of health care powers of attorney for most
individuals with Alzheimer’s since, under Wis. Stat. section
155.20(2)(c), an agent may not admit an individual to an
assisted living or nursing facility if that individual has been
diagnosed as having a mental illness.
Similarly, the “family consent” provisions of Wis.
Stat. section 50.06 which allow family members to consent to a
post-hospital admission to a nursing facility or Community Based
Residential Facility specifically exclude individuals with mental
illness. Thus, a finding that Alzheimer’s is a mental illness will
effectively render it impossible to admit an Alzheimer’s patient
to an assisted living facility or nursing home, without a guardianship
and protective placement proceeding.
A decision finding Alzheimer’s to be a mental illness, and thus
invalidating powers of attorney and “family consent”
admissions for Alzheimer’s patients is not only costly, stressful
and completely unnecessary where an individual has executed a power of
attorney authorizing admission, it will also create an immense burden on
the court system.
In Wisconsin, according to statistics from the Alzheimer’s
Association’s 2008 report, “2011
Alzheimer’s Disease Facts and Figures,” approximately 66
percent of the 74,358 nursing home residents in Wisconsin had some
form of cognitive impairment, and may consequently need protective
placement and guardianship even where they have executed valid powers of
attorney. This would mean 49,076 guardianship and protective placement
proceedings simply due to Alzheimer’s.
The Elder Law Section believes that using the drastic procedures
involved in a ch. 51 mental commitment, for the purpose of medicating
and stabilizing an individual with Alzheimer’s, are unnecessarily
harsh given that there is a medication process available under
Wisconsin’s Protective Placement procedures, specifically Wis.
Stat. section 55.14.
Furthermore, the collateral damage of a decision finding
Alzheimer’s to be a mental illness, in terms of the prohibition on
admitting individuals to nursing facilities and Community Based
Residential Facilities when they have been diagnosed with a mental
illness, will be significant.
If you have any questions or comments please send them to: pubaffairs@wisbar.org by 9:00 am on
Tuesday, Sept. 20th or contact Sandy Lonergan, Elder Law Section
Government Relations Coordinator, at (608) 250-6045.
