Doctors Speak a Different Language

Doctors Speak a Different Language

I had the benefit of recently hearing prominent geriatric psychiatrist Dr. Donnelly.

She discussed various aspects of testing for mental capacity and in particular when dealing with the legal profession in seeking a medical opinion about same.

Mental capacity is  a legal test – did the person have sufficient mental capacity when he or she signed the will or the transfer of land etc.?

To her credit Dr. Donnelly instructed the attending lawyers that they should specify in detail exactly what they want the doctor  to tell them and in response to specific questions pose the physician.

For example, she mentioned that most lawyers do not even instruct the doctor  as to the legal test for mental capacity, when most doctors, especially family physicians, really have no training or experience in understanding the legal concept, and very little training if any in testing for capacity.

If possible, it is highly preferable that the testing for mental capacity be performed by a geriatric psychiatrist in the case of the elderly, or a psychiatrist in the case of non-geriatrics

I will share aspects of her presentation upon my receipt of them in the future.

I pointed out to her and the audience that the problem is even worse than she described, in that lawyers and doctors do not even use the same words to have the same meaning.

I pointed out for example that the word acute, to a medical doctor means a sudden onset while two lawyers in the general public it means severe.

Similarly alert means awake in medical terms but to others is generally considered to be much more almost to the point of being smart

Lucid to a doctor means that the patient is oriented times three, (he or she knows who they are, where they are, and the date),  whereas to the general public the word lucid again usually means much more.

I also pointed out that lawyers deal with the concept of the test in civil proceedings being on the balance of probabilities, “is it more likely than not.”?

Doctors do not understand this concept unless they are instructed by the lawyers, as to the appropriate legal test to apply when providing their medical opinion.

Dr. Donnelly agreed that doctors are typically trained and think  as scientists who use the scientific method.

They do not  understand the legal concept of causation, or  the thin skull rule in tort law, or any other legal concepts, without the lawyer explaining the  concept to the doctor.

In my almost 40 years of experience with dealing with the medical profession I can categorically state that there is often tension.

That tension can often be broken by the lawyer phoning  the doctor, making it clear that the doctor will be paid for his or her time, and asking to speak with the doctor, in person if possible, in a quiet setting after hours.

The lawyer should then review the file and the opinion sought, in person before it is written, and educate the doctor in the legal concepts and test to be applied when considering the preparation of the medical opinion.

– See more at: http://www.disinherited.com/blog/doctors-speak-different-language#sthash.6NwDhiis.dpuf

Letters of Administration Revoked For Failing To Satisfy Test

Letters of Administration Revoked For Failing To Satisfy Test of Co

Letters of Administration Revoked For Failure to Prove Common Law Spouse Marriage Like Relationship

Souraya v Kinch 2012 BCSC 1252 involves a case where the grant of letters of administration revoked on the basis that the deceased’s alleged common-law spouse,failed to  prove that she met the  definition of common-law spouse as per  section 1 of the Estate Administration Act, which defines a common-law spouse as either:

1) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common-law, or

2) a person who has lived and cohabited with another person in a marriage like relationship, including a marriage like relationship between persons of the same gender, for a period of at least two years immediately before the other person’s death.

The deceased was gunned down in his motor vehicle at the age of 36, apparently  a victim of gang violence.

He died without leaving a will or children.

The defendant Kinch contended at the time of his death that she was his common-law spouse and on that basis, she claims sole entitlement to his estate and the right to administer the estate.

Kinch had earlier applied for and was granted letters of administration, but the sister of the deceased brings this action to set aside the order granting letters of administration to Kinch.

The court held that the grant should be set aside on the basis that Kinch was not, and had failed to prove that she was a common-law spouse of the deceased as per the after said definition.

The court found that there were many factors which pointed to a lack of permanent reason long-term marriage like commitment to each other.

Some of the criteria which the court relied upon were:

  • that the deceased maintained a separate residence from Kinch and intended to do so indefinitely,
  • there was a lack of significant financial interrelationships,
  • and there was a relationship characterized by conflict and breakups.

THE  LAW

The decision gives a very good review of recent law relating to common-law relationships.

The following extract is important:

[11]    In Austin v. Goerz, 2007 BCCA 586, the Court of Appeal held that neither capacity to legally marry nor financial dependence upon the deceased are required in order to come within the definition. The Court applied the decision of the Supreme Court of Canada in M. v. H. [1999] 2 S.C.R. 3, in which the Court considered the requirements of a “conjugal” relationship, for purposes of the statute under consideration in that case. In Austin, at para. 57, the Court quoted from M. v. H. as follows:

[57] Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.0.1990, c. F.3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered:

59 Molodowich v. Penttinen (1980), 17 R.F.L (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities,

economic supportand children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be coniuoal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

[Emphasis in original]

[12]    In Austin the Court of Appeal again held (as in Takacs) that how the parties arranged their financial affairs is but one factor to be considered. The Court stated that the presence or absence of any particular factor is not determinative of whether a relationship is marriage-like, observing that, equally, there is no checklist of characteristics that will invariably be found in all marriages. The Court concluded that the chambers judge (at para. 62):

[62] …properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”

[13]    The correct approach, therefore, is “holistic”, meaning that all appropriate factors should be considered, without any particular factor being considered determinative.

[14]    As the authorities set out, many objective indicators and factors may be considered. Several such factors are referred to in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, (CA), where Justice Lambert stated (at 268):

Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.

[15]    Takacs, and M. v. H., cited in Austin, supra, refers to the list of generally accepted characteristics of a conjugal relationship as set out in Molodowich v. Penttinen, (1980) 17 R.F.L. (2d) 376 (Ont. Dist. Ct.). The list of factors referred to in Molodowich is as follows (at para. 16):

(1)       Shelter:

  1. Did the parties live under the same roof?
  2. What were the sleeping arrangements?

(c)        Did anyone else occupy or share the available accommodation?

(2)         Sexual and personal behaviour:

  1. Did the parties have sexual relations? If not, why not?
  2. Did they maintain an attitude of fidelity to each other?
  3. What were their feelings toward each other?
  4. Did they communicate on a personal level?
  5. Did they eat their meals together?
    1. What, if anything, did they do to assist each other with problems or during illness?
  6. Did they buy gifts for each other on special occasions?

(3)         Services:

What was the conduct and habit of the parties in relation to:

  1. Preparation of meals,
  2. Washing and mending clothes,
  3. Shopping,
  4. Household maintenance,
  5. Any other domestic services?

(4)        Social:

  1. Did they participate together or separately in neighbourhood and community activities?
  2. What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5)        Societal:

What was the attitude and conduct of the community towards each of them and as a couple?

(6)        Support (Economic):

  1. What were the financial arrangements between the  parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
  2. What were the arrangements concerning the acquisition and ownership of property?
  3. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7)        Children:

What was the attitude and conduct of the parties concerning children?

– See more at: http://www.disinherited.com/blog/letters-administration-revoked-failing-satisfy-test-common-law-spouse-deceased#sthash.gfzr1Lj6.dpuf

Crime Does Not Pay In Estate Inheritances Unless Criminally Insane

Estate Inheritances

Yesterday I blogged about who were nieces and nephews in the Re Holmes Estate.

One of the interesting side issues of the Holmes Estate case was that pursuant to the deceased’s will, if any of the 2 testator’s nieces or nephews predeceased the testator, that person share of his estate was to be paid to the predeceased person’s spouse.

In fact the spouse of one of the nieces of the deceased, had been convicted of her murder several years prior.

The court held that the convicted spouse of the deceased niece was not entitled to her share of the estate, because of the general rule of public policy precluding a person from benefiting from a crime.

Accordingly the Court held that the gift to the nieces and nephews was a class gift,  and when a class member was disqualified from taking a share, that share was to go to increase the shares of the surviving class members.

The Court followed the Supreme Court of Canada decision of Nordstrom v Baumann 37 WWR 16, ( 1962) SCR 147 which had clearly stated that the will of public policy which precludes a person from benefiting from his or her own crime overrides the statute law as to the distribution of the estate of an intestate.

The court easily held that it is permissible in civil actions to make findings of fact which you proven in criminal proceedings would be held criminal.

Accordingly Canadian civil courts have repeatedly determined the question of whether or not the conduct of an individual amounts to a crime, for the purpose of invoking the rule of public policy precluding a person from benefiting from his own crime.

In this case the will, the questionable beneficiary was found to be criminally insane at the time she said a fire which cause the death of her husband.

Accordingly the court allowed her to inherit, as the finding of insanity did not prevent her from inheriting due to public policy. Her share was thus placed with the Public Guardian.

Ontario Court Upholds Frivolous Action Award Against Losing Party

Ontario Court Upholds Frivolous Action Award Against Losing Party

Costs For Frivolous Action

The recent Ontario decision involving Smith Estate v Rotstein 2012 CarswellOnt 9064, provides a detailed examination of recent awards for court costs involving lengthy but frivolous action estate litigation fights.

Here a sibling engaged in lengthy and complex litigation alledging undue influence and lack of testamentary capacity when there was little or no evidence of same.

The trial Judge awarded her brother full indemnity for his legal expenses which totalled over $700,000 in fees and $30,000 in disbursements.

This award was upheld by the courts with the following excerpts:

 

“As the Court of Appeal made clear in its decision in McDougald Estate v. Gooderham,[2] two fundamental principles now govern the award of costs in estate litigation.

First, the starting point remains the general principles for determining the responsibility for costs applicable to all civil litigation, as expressed in Section 131 of theCourts of Justice Act, Rule 57 of theRules of Civil Procedure and, since January 1, 2010, the principle of proportionality articulated in Rule 1.04(1.1).

Second, public policy favours a departure from those general costs principles and the payment of the parties’ litigation costs by the estate in two circumstances:

(i)      where reasonable grounds existed upon which to question the execution of the will or the testator’s capacity in making the will; or,

(ii)   where the difficulties or ambiguities in the will that gave rise to the litigation were caused, in whole or part, by the testator.

In those two circumstances it is reasonable to look to the estate to bear the costs of resolving those questions because public policy requires courts only to give effect to valid wills that reflect the intention of competent testators.

[9]               The discipline imposed on litigants by the “loser pays” principle in civil litigation was viewed by the Court of Appeal as appropriate in estate litigation:

The modern approach to awarding costs, at first instance, in estate litigation recognises the important role that courts play in ensuring that only valid wills executed by competent testators are propounded. It also recognises the need to restrict unwarranted litigation and protect estates from being depleted by litigation. Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation.[3]

[10]           It is crucial to note that the two exceptions to the “loser pays” principle in estate litigation are not class exceptions – i.e. the exceptions do not apply to all will challenge cases or all will interpretation cases.  On the contrary, as revealed by the four cases pointed to by the Court of Appeal in McDougald Estate as examples of the application of the modern approach to costs, responsibility for the costs of will interpretation or will validity litigation may well be placed on the shoulders of the individual litigants.[4]  Only where the parties can demonstrate that reasonable grounds existed to question the execution of the will or the competency of the testator, or the presence of a reasonable dispute about the interpretation of a testamentary document, will the courts consider whether it is appropriate to award costs of the litigation from the estate, rather than apply the “loser pays” principle.  The costs inquiry therefore will be specific to the facts and issues raised in each particular piece of estate litigation – no general class exceptions from the standard civil rules of costs exist for types of estate litigation.

Courts have awarded elevated, full indemnity costs when:

(i) one party was an innocent party to the proceeding and the court concluded that she should not experience any loss as a result of the conduct and actions of the defendant which resulted in the litigation;[14]

(ii) one party made baseless allegations of wrongdoing[15] or meritless claims of fraud, deceit, and dishonesty based on pure speculation against the other;[16] or,

(iii) it was clear shortly after the event in question that the plaintiff was blameless, but was required to proceed to trial because of disputes amongst the defendants about their share of liability.[17]

Ms. Rotstein persisted in a will challenge which, on the facts of this family’s history, really should never have been brought in the first place or, at least, should have been abandoned at a very early stage once Mr. Smith filed his evidence for the summary judgment motion.  There was no justification, in law or in fact, for Ms. Rotstein to have taken her challenge through to the hearing of the summary judgment motion

– See more at: http://www.disinherited.com/blog/ontario-court-upholds-award-against-losing-party-over-700000-costs-frivilous-action#sthash.EgOqwOHU.dpuf

Court Inherent Jurisdiction to Protect Those Who Need Protection

Court Inherent Jurisdiction to Protect Those Who Need Protection

Supreme Court Inherent Jurisdiction to Protect Those Who Cannot Protect Themselves

Referring  again to the Kenny Ng case, the wife as committee for the person of Kenny, had decided after seven years of him being in a coma, to remove his life support system.

His family applied to remove the wife as committee and substitute themselves so that they could essentially keep him alive.

The wife’s counsel argued that there was no legal basis to remove her as committee, and that she alone had the right to make that decision which was based on medical advice.

Kenny’s family appealed  to the Court to invoke its inherent jurisdiction, or parens patriae, to protect those who cannot protect themselves

Under the Patient’s Property Act,  ( PPA) the court may appoint a committee to take custody of a person who has been declared incapable due to mental infirmity.

Under the Health Care (Consent) and Care Facility (Admission) Act [HCCCFA] committees of the person are defined under that act to be permitted to make medical decisions on behalf of individuals who are in their custody.

The wife was appointed as Kenny’s committee under s.6(l) the PPA to both manage his affairs and to take custody of his person, including the power to make decisions under the HCCCFA.

The decision to withdraw Kenny’s food and water was made by the Respondent under the authority of s.l 1 of the HCCCFA.

Pursuant to s.6(2) of the PPA, a court has the power to rescind the appointment of a committee. The PPA does not, however, prescribe any criteria for that rescission.

The result is a legislative gap in the PPA, which invokes the parens patriae jurisdiction of the court.

In Re Bowman, 2009 BCSC 523, a 2009 BC Supreme Court Chambers decision, the court stated at paragraph 32 that:

On an application for either the appointment or removal of a committee [under the Patients Property Act], the test for determining who is appropriate to act as a committee invokes the parens patriae jurisdiction of this court and is governed by an assessment of who will serve the patient’s best interests.

The purpose and extent that the court can exercise its parens patriae jurisdiction is trite law, as set out by La Forest J. in the seminal Supreme Court of Canada case of Re Eve, [1986] 2 S.C.R. 388 at paras. 73, 74, and 77:

The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare.” (para. 73)

The situations under which it can be exercised are legion: the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J v. C., [1970] A.C. 668, at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably “moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion…” In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in R. X, supra, at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive, (para. 74)

…Though the scope or sphere of operation of the parens patriae jurisdiction maybe unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised… The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual [emphasis addedl. (para. 77)

– See more at: http://www.disinherited.com/blog/bc-supreme-court-has-inherent-jurisdiction-protect-those-who-cannot-protect-themselves#sthash.nEtu3UfJ.dpuf

Adverse Inference For Failure to Call Certain Evidence

adverse interest

There are certain cases where it is simply necessary and expected to call a particular witness who might have extensive knowledge as to the facts in question, and failing to do so, will lead the court to draw an adverse inference as to what that witnesses evidence would have been.

For example:

A plaintiff suffered whiplash injuries in two rear-end motor vehicle accidents which occurred six months apart.

Following the first accident, he attended a hospital emergency ward and saw his family physician once. He received physiotherapy treatments for one month.

His symptoms had resolved to a large extent by the time of the second accident which exacerbated his problems.

One year after the first accident, his symptoms had improved but had not disappeared.

The plaintiff, who was a 50 per cent owner in a carpet business, did not call his partner to testify regarding his injuries or regarding the company’s alleged income loss as a result of the plaintiff’s incapacity.

He produced no business records and had kept no record of his lost work days. The plaintiff sued for damages for personal injuries.

 

The Court held that although the plaintiff did suffer some loss of income, the substantial amount he claimed was not proven.

It was an appropriate case in which to draw an adverse inference against the plaintiff because of his unexplained failure to call his business partner to testify.

The partner could have attested to the plaintiff’s physical suffering and loss of ability to work, as well as to the income loss the company and plaintiff indirectly suffered as a result of the plaintiff’s incapacity.

 

Barker v. McQuahe(1964), 49 W.W.R. 685(B.C. C.A.) was applied, which stated:

 

An inference adverse to a litigant may be drawn if, without sufficient explanation, he fails to call a witness who might be expected to give important supporting evidence if his case were sound, Royal Trust Co. v. Toronto Transportation Commn., [1935] S.C.R. 671, 44 C.R.C. 90, 28 Can Abr 109; Murray v. Saskatoon (City)(1951) 4 WWR (NS) 234, at 239, 5Abr Con (2nd) 9 (C.A.), applied.“

– See more at: http://www.disinherited.com/blog/adverse-inference-be-drawn-failure-call-certain-evidence#sthash.1C2t0w6L.dpuf

Interim Injunctions

Interim Injunctions

Black’s law dictionary defines “injunction” as a “court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury”.

In the Ng life support application blogged about yesterday, tINjunction sshhe patient’s family applied to the court for an injunction to raise the level of care from the lowest, level one,  that the committee wife had lowered it down to, up to level four or at least two where it had previously been.

If granted the court may grant the injunction on an interim basis, for a specific period of time, or until trial for example, or could grant a permanent injunction raising the level of care for the remainder of his life.

It remains to be seen if the court will interfere with the medical decision and the decision of the committee to lower the care down to level one.

The test for granting an interim injunction is set out in the case of British Columbia (Attorney General) v. Wale (1986), 9 B.C.L.R. (2d) 333 at p. 345 (C.A.),

which provides a two-pronged test as follows:

First, the applicant must satisfy the court that there is a fair question to be tried about the existence of the right alleged and a breach of the right, actual or reasonably apprehended; and

2. Second, the balance of convenience must favour the pronouncement of the order.

Canadian Broadcasting Corporation v. CKPG Television Ltd., [1992] 3 W.W.R. 279 (tab 3, Book of Authorities #1 of Petitioners, p. 6) sets out the factors

that must be considered by the court in determining the balance of convenience:

The adequacy of damages as a remedy for the applicant if the injunction is not granted and for the respondent if an injunction is granted;
The likelihood that if damages are finally awarded they will be paid;
The preservation of contested property;
Other factors affecting whether harm from the granting or refusal of the injunction would be irreparable;
Which of the parties has acted to alter the balance of their relationship and so affect the status quo;
The strength of the applicant’s case;
Any factors affecting the public interest; an
Any factors affecting the balance of justice and convenience.

– See more at: http://www.disinherited.com/blog/interim-injunctions#sthash.Y1WWdXe5.dpuf

Ending Life Support – The Ng Case

Ending Life Support

 

disinherited.com was initially consulted in this most interesting court case only days before a decision had been made to end Kenny Ng’s life.

 

I retained Candace Cho, my mentee, to act in the matter and shadowed her handling of the court action, including sitting at counsel table while she ably argued the case on behalf of the family, opposing the wife’s application to end Kenny’s life support.

 

The reporter, Ian Mulgrew sat in the court room for most of the legal submissions and wrote the following balanced view of this intriguing questions:

 

What is in the best interest of the patient, Kenny Ng- to live or to die, and who should make that decision?

 

Brain injured man at centre of legal battle over whether to remove feeding tubes

 

A car accident left former math whiz in a vegetative state, now his wife and family are at odds over his fate

 

BY IAN MULGREW, VANCOUVER SUN DECEMBER 5, 2012
http://www.vancouversun.com/images/socialbuttons/btn_comment_arrow.jpg); position: relative; width: 6px; font-family: arial, verdana, ‘lucida grande’, sans-serif; background-position: 0% 0%; float: left; height: 5px; font-size: 11px; top: 6px; left: 1px”>
0

 

 

 

 

 

A 57-year-old Vancouver man who has languished in a coma for seven years has become the focus of a tragic family tug-of-war in B.C. Supreme Court over whether he should live or die.

Photograph by: Steve Bosch , PNG files

A 57-year-old Vancouver man who has languished in a vegetative state for seven years has become the focus of a tragic family tug-of-war over whether he should live or die.

His wife Lora wants medical staff to remove Kenny Ng’s feeding tubes, which will cause him to starve to death over about two weeks.

His parents, siblings and relatives, however, have asked B.C. Supreme Court Justice Miriam Gropper to intervene and keep Ng alive in the hope he can benefit from recent neuroscience medical discoveries.

They argue Ng’s wife should be replaced as the person making decisions about his long-term care at the George Pearson Centre, since he may qualify for pioneering treatments by celebrated brain researcher Adrian Owen.

“They believe that Dr. Owen’s study is exactly what Kenny has been waiting for over the last seven years,” the family’s lawyer Candace Cho said. “And knowing Kenny’s belief in technology and progress, they believe that Kenny would jump at the chance at participating in the study.”

On Tuesday, she played for the judge a short, heart-rending video of the man in his hospital bed reflexively responding to visitors.

“The fact is, Kenny is very much alive,” Cho maintained.

“He is breathing on his own, able to move his head around, make noises, open his eyes, and the only thing that the hospital is doing to keep him alive is to feed him nutrition and fluids.”

Several members of Ng’s family sat stoically on one side of the courtroom, his wife inscrutable on the other.

Ng was described as a former math-whiz who graduated from Sir Charles Tupper secondary. He became an electrical engineer and started his own successful business, Phase Technology, involving the design, manufacture and sale of petroleum analysers.

His predicament is reminiscent of a recent Alberta case involving a young girl the courts ordered to be taken off life-support in spite of her parents’ wishes.

The judges in that province endorsed the view that life support should be terminated where medical specialists unanimously believe the patient was without awareness or hope of recovery and invasive treatment provided no potential benefit.

Lawyers for Ng’s wife say that’s the situation here, although the family insists otherwise.

“This is not the case of a brain-dead patient on ventilators and any type of machine imaginable to keep him alive, with absolutely no chance of recovery and a family that is holding onto his life for their own benefit and comfort,” Cho said.

Lawyers for Ng’s wife argued, though, that is exactly the case — loved ones who can’t say goodbye making “outrageous allegations” while hoping for a miracle.

“It’s an affront to (Ng’s) human dignity,” said lawyer David Dahlgren.

Ng suffered traumatic brain injuries on Sept. 9, 2005, during a car accident in Washington State that killed his eldest son, injured his two other children and left his wife badly hurt. Since then, he has been minimally conscious.

Over the last year, Ng’s family told the court his wife has become estranged from them and no longer committed to doing what is in his best interest.

“Kenny’s estate was worth approximately $3.3 million in 2006,” Cho said, arguing that financial gain was a factor.

Mrs. Ng’s lawyers dismissed such “offensive” claims as defying belief, given Mrs. Ng’s devotion to her husband’s care — she hired an expert acupuncturist and took Ng on outings to a mall and the local Home Depot to stimulate him.

She hoped he would recover but came to realize it was futile and decided to have the tubes providing food and fluid removed after Ng’s care team concluded such a decision was “medically appropriate.”

“We’re here today, my lady, because the [family] are regrettably or sadly unable to accept the reality of Mr. Ng’s condition,” lawyer Gary Fraser said.

“They cannot let go of Mr. Ng for their own personal reasons …. They simply can’t let go.”

Shortly after the horrific accident, Fraser explained, doctors said it would be appropriate to remove Ng’s feeding tubes.

Lora Ng didn’t’t act on that advice but waited to see if her husband improved. She made the decision to remove the tubes “after wrestling with it for almost seven years,” Fraser added.

“It wasn’t made in haste, it wasn’t rushed.”

But the family insisted letting Ng die would be wrong given the startling work in neuro-imaging by Dr. Owen, which proves some patients suffering from locked-in syndrome, or who have lain in vegetative states for years, may be more conscious than we realize.

In 2010, Owen, then at the University of Cambridge, UK, communicated with a man who had been in a coma for five years.

A year later, the University of Western Ontario lured him to Canada with $20 million in funding.

“Since arriving,” the doctor said in a report filed with the court, “we have seen 12 patients in Ontario (and one from Alberta) and, of these, two are able to communicate repeatedly using our (functional) MRI technique. In one case (a male traumatic brain injury patient who had been repeatedly diagnosed as vegetative for 12 years), we were able to ask the question ‘are you in any pain?’ and twice decoded the answer ‘no’ using our technique.”

The doctor continued: “I have not examined Mr. Ng, so I cannot judge whether he would be suitable for inclusion or not, but considering his clinical diagnosis (minimally conscious state), his age, and the nature of his injury I see no reason why he would not be an ideal candidate, subject to an assurance from his referring clinician that he would be safe to travel the distance.”

If the court intercedes, the family said it hopes to have Ng assessed by Owen’s team to see if he can be admitted into a new research study involving the groundbreaking techniques.

Lawyer Dahlgren said the court has no reason to step in: “Mr. Ng does not need protection in these circumstances.”

Justice Gropper reserved her decision.

imulgrew@vancouversun.com

Read more:http://www.vancouversun.com/health/Brain+injured+centre+legal+battle+over+whether+remove+feeding+tubes/7652011/story.html#ixzz2EEEiuErD

– See more at: http://www.disinherited.com/blog/ending-life-support-ng-case#sthash.SAHZHFNW.dpuf

Administrator Appointed Pending Litigation

Administrator Appointed Pending Litigation

Independent Administrator Appointed For  Estate Assets Pending Litigation, aka administrator pendent lite.

A common feature of many estate  disputes  is the acrimonious nature between the various claimants to the assets of the deceased.

In fact, certain cases become renowned within the profession and the courts for the extreme degree of the acrimony between the various parties.

The most  recent  decision of the ongoing saga Karsonas v. Karsonas Estate 2012 BCSC 1604 is yet another example of  litigation that seemingly never will end.

Without going into the details of why and who were involved in the acrimony, suffice to say that there were many previous contested court applications relating to this estate, and appeals there from.

In situations such as this, smart counsel will or should apply to the Supreme Court of British Columbia for the appointment of an administrator pendente lite,  ( Latin for “pending the outcome of the litigation”)

Mdm. Justice Ballance, who is vastly experienced in estate disputes, made such an order noting the extensive deterioration of the estate properties, a partition action between the testator and his children in regard to one property, and another court action by the plaintiff children disputing the testator’s last will and certain trust documents.

There was a contested cross -application by the niece of the deceased  to be appointed as executrix or administrator pendente lite, or trustee without compensation, that was dismissed.

The court noted that the hostility between the parties, and that the administration of the estate was fraught with obvious difficulties, required the appointment of an experienced neutral third-party which was vastly preferable to the niece, being blood related .

The court in fact allow the application of the testator’s children to have an independent trust company appointed as administrator pendente lite.

Mental State Medical Examinations

disinherited.com recently blogged that the medical profession as a whole is woefully lacking in training and experience in the assessment of testamentary capacity.

The purpose of this paper is to provide a brief overview of some of the criteria that a doctor should utilize when performing a mental state medical examinations.

The doctor should firstly obtain all of the medical and psychiatric notes will him him as well as an outline of the contents of  value of the testator’s estate. This is crucial.

The assessment should always take place face-to-face, and when dealing with the elderly elderly suspected of havinag dementia, it should probably take place in the patient’s own resident so as to reduce anxiety, which can greatly affect the test results..

Many patients have fluctuating capacity scores and the doctor should test on several occasions over a period of time in order to get a more complete diagnosis

The doctor should of course keep detailed contemporaneous notes as well as be informed and instructed by the solicitor as to the legal test for capacity (Banks  v. Goodfellow )

The assessment should definitely be conducted in the absence of anyone who stands to benefit from the will or who might exert influence on the testator.

This is very important in that doctors are typically under a great deal of time pressure and often allow caregivers and other interested parties to provide the history to the doctor, rather than hearing it directly from the patient’s mouth. The patient may very well be unable to express him or herself and thus get lost in the process.

Medications, language barriers, serious depression and general reluctance to be examined are also common problems confronting the physician when conducting a mental assessment of the elderly.

From a legal perspective the standard of proof for court decisions as to whether a person lacks or has testamentary capacity, is on the balance of probabilities, and not beyond a reasonable doubt as is required in criminal cases.

The doctor should understand this and perhaps approach the issue as ” is it more probable than not that this patient lacks or has testamentary capacity?”

During the assessment it is necessary that leading questions, that is questions that suggest the answer, should be avoided as much as possible.

In order to conduct a proper assessment of testamentary capacity, it is necessary to probe the mind and ask detailed questions where the answer is not suggested.

The content of previous wills should be discussed and the reasoning with respect to a new will should be elucidated, particularly where a close family member previously included in a will is now being disinherited.

 

The following table are the various criteria with which the doctor will individually address when performing the mental state examination:

The mental state medical examinations:

Appearance:    posture, dress, personal hygiene, grooming.nonverbal communication, manner, etc

Behaviour:      restlessness, threatening behaviour, degree of cooperation, etc

Mood:          subjective and objective description

Affect:            blunted, inappropriate, appropriate or depressed

Speech:           rate {pressured or slow), volume, tone, quantity, appropriate/inappropriate content, dysarthria, or dysphasia Perception:     hallucinations (auditory, visual, olfactory, gustatory or tactile). depersonalisation or derealisation

Thought:         Stream: slow (psychomotor retardation) or fast (flight of ideas)

Form: illogical, fragmented, logically connected or disjointed

Content : overvalued ideas, delusions, suicidal and homicidal thoughts,  preoccupations, or phobias

 

Insight:                patient’s awareness and understanding of the condition and treatment

Cognition:       Mini Mental State Examination and other cognitive tests Judgement:     response to hypothetical scenarios (e.g. what would you do

if you found a sealed, stamped and addressed envelope on the street

Rapport:         demonstration of warmth, ability to partake in the

doctor-patient relationship

– See more at: http://www.disinherited.com/blog/mental-state-medical-examinations#sthash.RUJr1WKa.dpuf