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    Elder Law Section submits request to file amicus brief in Alzheimer's case

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    Sept. 13, 2011 – The State Bar of Wisconsin’s Elder Law Section has submitted a request for authorization to file an amicus curiae brief in a pending case involving the appropriateness of using Wis. Stat. ch. 51 mental commitment proceedings for a person with Alzheimer’s dementia.

    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 org slonergan wisbar Sandy Lonergan, Elder Law Section Government Relations Coordinator, at (608) 250-6045.