PA Aging Sec. Hall on "Graying of Pennsylvania"

On Monday morning, March 29, 2010, Pennsylvania's Secretary of Aging, John Michael Hall, spoke for an hour, live, on WITF-FM (Harrisburg, PA) radio's Smart Talk on the subject "The Graying of Pennsylvania."

I listened; and I recommend that anyone interested in the topic of an aging population in Pennsylvania should listen too. This is the link to listen on your multimedia computer.

The interview illuminates the vision of the Department of Aging in offering services more effectively to a changing and expanding population of those defined as "seniors," which is merging with those generally known as "disabled." The interview displays the talents, knowledge, and sensitivities of a Secretary of Aging, two years into his leadership role, who leads us into those changes.

During the interview, Mr. Hall referenced his testimony in support of the Department's pending budget request, presented before the House Appropriations Committee on February 24, 2010. See: Testimony of John Michael Hall, Secretary, Pennsylvania Department of Aging, before the Appropriations Committee of the Pennsylvania House of Representatives (PDF, 7 pp.). I recommend reading those remarks for the details of that pending vision.

He had opened those formal remarks by stating the Administration's goal and vision:

* * * Governor Rendell and I continue to work toward making Pennsylvania the best state in the nation in which to grow old or live with a physical disability.

The focus of the Department of Aging and the Office of Long-Term Living is to enable older Pennsylvanians and adults with disabilities to live with dignity and independence in settings they prefer. * * *

That sounds like a nice place to be when you are growing older.

PA DPW Reclaims Medicaid from Charles II

On March 23, 2010, a Memorandum Opinion was issued (but not reported for publication) by a three-Judge panel of the Commonwealth Court, per President Judge Leadbetter in the case Malloy v. Department of Public Welfare (No. 1575 C.D. 2009), reported unofficially online by Leagle.

The holding of this case was that the Pennsylvania Department of Public Welfare could assess a recovery of overpaid Medicaid benefits personally against a guardian of assets who had had failed to inform DPW as to the disqualification of the principal's status as an entitled beneficiary, who had not informed the Orphans' Court about the matter during its consideration of sales of a Medicaid-exempt asset, and who did not spend funds on the principal's maintenance.

Here are the facts, according to the Opinion:

In June 2005, Charles M. was admitted to a nursing home. The next month, Charles II applied to the Department, on his father's behalf, for Medicaid/Long Term Care benefits, to cover nursing home expenses.

The application form, signed by Charles II, included, in a list of Charles M.'s assets, a house on Cortez Drive in Washington, Pennsylvania, which Charles M. owned free and clear. Previously, Charles M. had lived in the house with Charles II, but after Charles M. moved to the nursing home, Charles II lived in the house alone.

The application included language obliging the recipient of benefits to notify the Department of any change in financial circumstances within seven days, and also stated that "any person enriched as a result of a transfer of assets or income, which would have affected [the recipient's] eligibility, will be liable for repayment of those benefits issued incorrectly."

The application was approved, and the Department began paying a substantial portion of Charles M.'s nursing home expenses.

In November 2005, Charles II was appointed Charles M.'s legal guardian by the Washington County Orphans Court, with full authority to administer his assets.

In March of 2006, he received permission from the court to transfer one-half of the Cortez Drive property to himself and to encumber the property with a $70,000 mortgage, which represented about half the assessed value of the property. The court ordered that $20,000 of the proceeds from the mortgage be used to cover Charles M.'s existing debts, and that the remaining $50,000 be used for his future expenses.

After settling the debts, however, Charles II used the remaining money for purposes other than Charles M's needs. None of these transactions were reported to the Department.

After the money from the first mortgage was exhausted, Charles II returned to the Orphans Court and received permission to take out another mortgage on the Cortez Drive property, this time for $127,000. No careful accounting was made of these funds, but the ALJ found that, after the balance of the first mortgage was paid off, the bulk of the remainder was used for purposes other than the needs of Charles M. Again, this transaction was not reported to the Department.

In March 2008, Charles II completed, on Charles M.'s behalf, a Department form reviewing Charles M's benefits. On this form, Charles M. did not report the transfer of half of the Cortez Drive property to himself, the two mortgages on the property, or any of the money received from them. Eventually, however, the Department discovered records of the property transfer, and concluded that the transaction had made Charles M. ineligible to receive benefits, and that as a consequence, the Department had overpaid him $35,459.63.

While the Department was preparing its claim, Charles M. passed away, and the Department sought restitution from Charles II.

Both sides acknowledge that the transactions surrounding the Cortez Drive property made Charles M. ineligible to receive Department benefits, leading to the overpayment. * * * [Reparagraphing applied; citation omitted.]

The sole question before the Commonwealth Court -- brought to it not from the Orphans' Court Division, but as an appeal from the administrative finding within DPW's hearing process -- was: "[W]hether the Department may seek repayment directly from Charles II, rather than from Charles M.'s estate."

The ruling by the Commonwealth Court supported the collection rights and process of DPW against Charles II, personally, pursuant to the following reasoning:

The statute governing this situation provides that when undisclosed property makes a recipient ineligible for benefits, leading to overpayment, "[r]epayment of the overpayment shall be sought from the recipient, the person receiving or holding such property, the recipient's estate and/or survivors benefiting from receiving such property." Section 1408(c)(6)(i) of the Public Welfare Code, 62 P.S. § 1408(c)(6)(i).

The ALJ found that the undisclosed transfer of the interest in the Cortez Drive property was for inadequate consideration, and that this transfer made Charles M. ineligible for benefits in the amount of the transferred interest. These findings, especially the former, are not challenged on appeal.

As the person to whom the interest in the Cortez Drive property was transferred, Charles II certainly qualifies as one from whom repayment may be sought, because he is a "person receiving or holding [the undisclosed] property" that rendered Charles M. ineligible for benefits.

Charles II's sole argument before this court, essentially, is that it would be unfair to collect repayment from him rather than from Charles M.'s estate.

There appears to be no case law examining the process by which the Department chooses from whom to collect repayments. However, there is nothing in the plain language of the statute to suggest that the Department is in any way obligated to consider the equities when making that choice.

The statute's clear purpose is to provide a mechanism for the Department to make the Commonwealth whole after it has overpaid a recipient. To accomplish this aim, the statute lists a number of potential parties from whom repayment can be collected, connected with "and/or." The use of this term implies that the legislature intended to give the Department wide latitude or broad discretion to choose which party, or group of parties from whom it would collect repayment.

Of course, there is nothing in the statute to prevent the Department from considering fairness, but it would also be consistent with the statute's purpose for it to consider a party's solvency, location, willingness to pay, or any of a number of other factors in making its decision. When, as here, a statute gives an agency discretionary powers, judicial review is limited to a determination of whether there has been a manifest or flagrant abuse of discretion, or a purely arbitrary execution of the agency's duties or functions. City of Scranton v. Bureau of Workers' Comp., 787 A.2d 1094 (Pa. Cmwlth. 2001).

There is nothing about the Department's decision to collect repayment from Charles II that approaches abuse of discretion or arbitrariness. Not only is the collection of repayment from Charles II expressly authorized, but it seems entirely appropriate, given that it was his actions that led to the overpayment.

It was Charles II, in his role as guardian, who executed the transaction that made Charles M. ineligible for benefits; it was Charles II who failed to report that transaction to the Department, leading to the overpayment; and it was Charles II who failed to spend the proceeds of that transaction on the needs of Charles M., as he was required to do.

Charles II argues that many of these actions were made under court supervision. However, there is no indication in the record that the Orphans Court was aware that Charles M. had recently applied for and been granted benefits or the way Charles II was spending the mortgage proceeds.

Regardless, it is clear that holding Charles II accountable for the benefit overpayment is in no way arbitrary or an abuse of discretion. * * * [Reparagraphing applied; footnotes omitted.]

Thus, the Court held: "For all the foregoing reasons, we affirm."

Okay.

That's it?!?!

No further commentary about Medicaid fraud, or incomplete testimony and failure to account before the Orphans' Court Division, or misapplication of funds by a guardian?

Just . . . now, return the money?

At least, this decision stands for the expanded reach of DPW as it seeks recovery of Medicaid funds wrongfully paid.

Graphics Credit:
Pennsylvania Capitol Preservation Committee/Photo by Hunt Commercial Photography --
This mural by Violet Oakley depicts King Charles II signing the Charter of Pennsylvania in 1681.
It now resides in the Governor's Reception Room of the Pennsylvania State Capitol building.

PA 2010 POA Reform Report Issued by JSGC

On March 23, 2010, after an 18-month study, the Pennsylvania Joint State Government Commission issued its report, dated March, 2010:

POWERS OF ATTORNEY:
PROPOSED AMENDMENTS to the
PROBATE, ESTATES and FIDUCIARIES CODE

REPORT of the ADVISORY COMMITTEE on DECEDENTS’ ESTATES LAWS.

This report was issued today in response to the requirements of House Resolution 484, Printers No. 2753 (introduced 10/26/07), "[d]irecting the Joint State Government Commission to study the Uniform Power of Attorney Act and Pennsylvania's current power of attorney statute to determine whether any amendments should be made to Pennsylvania's current statute."

That Resolution tasked the Joint State Government Commission, acting through its Advisory Committee on Decedents' Estates Laws, as follows:

RESOLVED, That the House of Representatives direct the Joint State Government Commission to have its Advisory Committee on Decedents' Estates Laws study the Uniform Power of Attorney Act and Pennsylvania's current power of attorney statute to determine whether any amendments should be made to Pennsylvania's current statute; and be it further

RESOLVED, That the Joint State Government Commission report its recommendations to the House of Representatives within 18 months of the adoption of this resolution.

The 2010 POA Report, with attachments, is 214 pages long, and includes proposed legislation to amend Chapter 56 of the Pennsylvania Probate, Estates & Fiduciaries Code [unofficial version posted online], which statutorily authorizes and regulates powers of attorney in the Commonwealth.

The Report proffers legislation that, if adopted into law, would significantly change those actions authorized to be conducted by an agent under a power of attorney in Pennsylvania and also expand the ability of the Orphans' Court Divisions to apply remedies for unauthorized conduct by an agent acting under a power of attorney.

The introduction of H.R. 484 was discussed in detail on this Blog upon its introduction by Representative Jesse White. See: PA EE&F Law Blog posting House Reps Propose Further POA Study (11/05/07), which focused on an article by Dennis B. Roddy, entitled "Lawmaker: Tighten rules on power of attorney" published on November 2, 2007, in the Pittsburgh Post-Gazette.

Prior Post-Gazette articles highlighted a need for consideration, in Pennsylvania, of the latest model of a Uniform Power of Attorney Act (2006) (UPAA), approved by the National Conference of Commissioners on Uniform State Laws, on July 13, 2006. See: PA EE&F Law Blog postings: "Powers of Attorney" Investigated in Series (09/04/07); and Final "Courting Trouble" Article on POA Abuse (09/05/07).

The additional issues requested by HR 484 to be addressed were those mentioned in my prior posting entitled "Super Powers" Under Examination (06/05/07). In that posting, I had reflected on an article which appeared on June 4, 2007, in Forbes Magazine entitled "Taming the Superpower", by Ashlea Ebeling.

The "General Observations" section of the 2010 POA Report stated the overall findings of the JSGC-ACDEL in contrasting PEF Code Chapter 56 to the UPAA:

• The Advisory Committee recognized that although the UPAA is better organized and more thorough and specific than Pennsylvania's current power of attorney statute, many of its best principles are already incorporated into 20 Pa.C.S. Chapter 56. The Advisory Committee acknowledged a general sense of satisfaction among practitioners regarding Pennsylvania's current power of attorney statute. Accordingly, it did not favor the wholesale adoption of the uniform act, instead opting to recommend discrete amendments to 20 Pa.C.S. Chapter 56 to address specific concerns or problems encountered by practitioners and others.

• The primary concern evidenced by the court system and commentators regarding durable powers of attorney is the potential for abuse by agents seeking to enrich themselves or benefit those close to them, such as through the altering of the principal's estate plan. Nevertheless, durable powers of attorney are very helpful tools for handling the principal's financial matters as well as for planning purposes; their inexpensive and private nature contrasts with the guardianship alternative. Therefore, the Advisory Committee reasoned that any statutory amendment to 20 Pa.C.S. Chapter 56 should preserve what is best about powers of attorney in Pennsylvania: their privacy, expediency and efficiency.

• The Advisory Committee also reviewed several provisions of 20 Pa.C.S. Chapter 54 regarding health care powers of attorney since 20 Pa.C.S. § 5602(a)(8), (9) and (23) and § 5603(h) and (u.1) currently permit a principal to incorporate by reference in a power of attorney the power to (1) authorize the principal's admission to a facility and enter into agreements for the principal's care, (2) authorize medical and surgical procedures and (3) make an anatomical gift of all or part of the principal's body. The Advisory Committee observed that several amendments to 20 Pa.C.S. Chapters 54 and 56 were appropriate regarding health care decision-making. [Emphasis added]

The 2010 POA Report then summarized the proposed changes to the existing Chapter 56 regarding powers of attorney in Pennsylvania [Emphasis added]:

§ 5601. Subsection (b) is amended to provide that two witnesses are required when any power of attorney is executed, thereby changing current law, which provides that two witnesses are only required when the power of attorney is executed by mark or by another individual. The amendment makes the execution of a power of attorney under Chapter 56 consistent with the execution of a health care power of attorney under Chapter 54. However, an agent appointed under a Chapter 56 power of attorney may not be a witness. Notarization, where the specific circumstances permit, is good practice but is not required. Subsection (b) is also amended to specify that a power of attorney “shall be dated and signed by the principal,” thereby replacing “signed and dated by the principal.

Subsections (d) and (e) are amended to provide statutory language regarding the preservation of the estate plan of the principal, including the effect of intestacy if the principal does not have a will.

Subsection (e.3) is new and provides that an agent and a recipient of a gift or other financial benefit, during the principal's life or at the principal's death, arising from the action of the agent is liable as equity and justice may require to the extent that the court determines that the action of the agent was inconsistent with (1) prudent estate planning or financial management for the principal or (2) the known or probable intent of the principal with respect to the disposition of the principal's property. An agent who in good faith exercises reasonable caution and prudence shall not be personally liable.

§ 5601.2. The title of § 5601.2 and subsection (a) are amended to specify that, similar to the gift provisions, a principal may empower an agent to make changes to the principal's estate plan only in specific circumstances. A power to make a gift or make changes to the principal's estate plan may not be inferred from a grant of another power or from a general grant of authority to do anything that the principal could do, except to the extent that a principal expressly grants the agent the power to provide for personal and family maintenance.

Subsection (b) is amended to clarify that limited gifts authorized in compliance with this subsection do not require court approval.

Subsection (c) is amended to change the title from “unlimited gifts” to “other gifts specifically authorized and not requiring court approval” and to clarify that other gifts specifically authorized in compliance with this subsection do not require court approval. The amendments permit a principal to authorize an agent to make a gift, which is not a limited gift under subsection (b), only by specifically identifying the donee and the gifted property or cash amounts. In addition, subsection (c)(1) specifies that the phrase “any donee” or other language showing a similar intent is not permitted.

Subsection (c.1) is new and provides that an agent may act without court approval if the agent's action is otherwise authorized by the power of attorney (e.g., to make a beneficiary designation or create a joint account) and maintains and is consistent with the preservation of the principal's estate plan, including the effect of intestacy if the principal has no will. An action may not be taken if the interest of any beneficiary under the principal's existing estate plan, including an intestacy if the principal has no will, is prejudiced thereby.

Subsection (c.2) is new and provides that an agent may make gifts or change the principal's estate plan (such as by creating or changing rights of survivorship or a beneficiary designation; by creating an inter vivos trust or amending, revoking or terminating an existing trust; or by waiving the principal's right to be a beneficiary of a joint and survivor annuity) only if the power of attorney expressly grants the agent the authority and the court approves the agent's action, in the manner set forth in new subsection (g), after finding that the action is consistent with (1) prudent estate planning or financial management and (2) the known or probable intent of the principal with respect to the disposition of the principal's property. If an agent complies with the grant of authority for gifts, the agent does not need to follow the procedures under Chapter 55 (incapacitated persons) so as to implement estate planning changes. Conversely, if the agent does not so comply, a guardianship proceeding would need to occur.

Subsection (d)(1), in defining the nature of a limited gift, is amended to add that the agent may make a gift to each donee to a tuition savings account or prepaid tuition plan.

Subsection (e), concerning equity and justice with respect to gifts, is repealed and replaced by § 5601(e.3) to make the concept of equity and justice applicable to all actions of an agent under Chapter 56.

Subsection (g) is new and provides for procedures concerning court proceedings for subsection (c.2).

§ 5602. Subsection (a) is amended to repeal paragraph (8) (“To authorize my admission to a medical, nursing, residential or similar facility and to enter into agreements for my care”), paragraph (9) (“To authorize medical and surgical procedures”) and paragraph (23) (“To make an anatomical gift of all or part of my body”). The substance of these paragraphs is being moved to Chapter 54.

Subsection (a) is amended to broaden paragraph (17) to include annuity transactions.

Subsection (a) is amended to add new paragraphs (24) (“To operate a business or entity”) and (25) (“To provide for personal and family maintenance”).

Subsection (c) is amended to change the reference from “executed copy of the power of attorney” to “originally executed power of attorney.”

Subsection (d) is new and specifies that, except for the purpose of filing at the courthouse, a photocopy or electronically transmitted copy of an originally executed power of attorney has the same effect as the original.

§ 5603. Subsection (a)(2)(ii), regarding gift splitting, is amended to (1) clarify that an agent can make a gift of the principal's assets up to twice the amount of the annual exclusion if the principal's spouse indicates a willingness to “split” gifts and (2) add a provision that limited gifts to a “family unit” (which is a child and a child's descendants) can be equalized even if this means exceeding the available annual exclusions and thus using a portion of the principal's cumulative lifetime gift exemption or paying gift tax if there is an insufficient amount of such exemption remaining.

Subsections (d) (power to claim an elective share) and (e) (power to disclaim any interest in property) are amended to eliminate as unnecessary the references to adjudication, since 20 Pa.C.S. § 102 defines an incapacitated person as “a person determined to be an incapacitated person under the provisions of Chapter 55 (relating to incapacitated person).” The determination under Chapter 55 necessarily involves an adjudication.

Subsection (h) (power to authorize admission to medical facility and power to authorize medical procedures) is repealed, in light of Chapter 54.

Subsection (k)(4) (power to engage in stock, bond and other securities transactions) is amended to specify that the agent may also join in any consolidation, dissolution or liquidation, thereby making the provision more parallel to 20 Pa.C.S. § 7780.6(a)(13), concerning the illustrative powers of a trustee under the Pennsylvania Uniform Trust Act.

Subsection (p) (power to engage in insurance transactions) is amended to include annuity transactions. Paragraph (3) is amended to give an agent the authority to change a beneficiary designation but only as permitted under § 5601.2(c.1) and (c.2), which concerns actions that change an estate plan and that may or may not require court approval.

Subsection (q) (power to engage in retirement plan transactions) is amended to give an agent the authority to change a beneficiary designation but only as permitted under § 5601.2(c.1) and (c.2), which concerns actions that change an estate plan and that may or may not require court approval.

Subsection (u.1) (power to make anatomical gift) is repealed, in light of Chapter 54.

Subsection (u.2) is new and defines the power to operate a business or entity.

Subsection (u.3) is new and defines the power to provide for personal and family maintenance.

§ 5604. Subsection (c)(1) is amended to delete the word “adjudicated” (with respect to an incapacitated principal) in the first sentence and to delete the second sentence, which provides that the guardian has the same power to revoke or amend the power of attorney that the principal would have if the principal were not incapacitated.

Subsection (c)(3) is new and requires the court to determine whether, and the extent to which, the incapacitated person's durable power of attorney remains in effect and include that determination in its guardianship order.

Subsection (d.1) is new and specifies that except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, the principal's guardian, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or (upon the death of the principal) the personal representative or successor in interest of the principal's estate.

§ 5610. A third sentence is added clarifying that the court may assess the costs of the accounting proceeding as it deems appropriate, including the costs of preparing and filing the account.

§ 5612. This new section authorizes the court to order an investigation, appoint a guardian ad litem, make a referral to an appropriate agency or take any other appropriate action regarding allegations of financial abuse or mismanagement against a principal by his or her agent under a power of attorney. Any such order is made upon petition by an appropriate party and a reasonable showing of the financial abuse or mismanagement. However, the court may consider information not only from the formal petition but from other sources (such as from a report by a social service agency or from other communications).

§ 5613. This new section provides that venue of any matter pertaining to the exercise of a power by an agent acting under a power of attorney is in the county where the principal is domiciled, a resident or residing in a long-term care facility. A court may decline to exercise jurisdiction if it determines that a court of another county or state is a more appropriate forum, in which case the court shall either dismiss the proceeding or stay the proceeding upon the condition that a proceeding be promptly commenced in another county or state. The court may impose other conditions as well. This new section provides the court with maximum flexibility regarding the relevant and important factors to be used in determining whether to exercise jurisdiction.

§ 5614. This new section supplements Chapter 56 with the common law and principles of equity.

The 2010 POA Report also contains the following proposed amendments to 20 Pa.C.S. Chapter 54 (health care):

§ 5422. The definition of “health care decision” is amended to include decisions regarding (1) an individual's admission to a facility or entering into agreements for the individual's care and (2) after the individual's death, making anatomical gifts, disposing of the remains or consenting to autopsies.

§ 5456. Subsection (a) is amended to specify that the health care agent's power includes the power to authorize admission to a facility or enter into agreements for the principal's care.

§ 5460. Subsection (a) is amended to repeal the last sentence, which provides that the guardian has the same power to revoke or amend the appointment of a health care agent that the principal would have if the principal were not incapacitated, but the guardian may not revoke or amend other instructions in an advance health directive absent judicial authorization. Subsection (a) is also amended to add statutory language providing that in its guardianship order and determination of a person's incapacity, the court shall determine the extent to which the health care agent's authority to act remains in effect.

I was privileged to be a member of the drafting committee (the "Subcommittee on Guardianships and Powers of Attorney"), chaired by John J. Lombard, Jr., Esq., Chair, which included: William R. Cooper, Esq.; Jay C. Glickman, Esq.; Neil E. Hendershot, Esq.; The Honorable Anne E. Lazarus; James F. Mannion, Esq.; John F. Meck, Esq.; Michael J. Mullaugh, Esq.; The Honorable Paula Francisco Ott; William Campbell Ries, Esq. and Robert B. Wolf, Esq. In addition, The Honorable Calvin S. Drayer, Jr. and The Honorable Stanley R. Ott were invited to participate in the subcommittee's review and discussion process.

Update: 03/26/10:

On Friday, March 26, 2010, the Pittsburgh Post-Gazette published an article by Dennis B. Roddy entitled Reforms aimed at power-of-attorney abuses: State commission proposes changes to curb cheating, which noted issuance of the 2010 POA Report and a legislator's intention to introduce legislation based upon its recommendations:

A Pennsylvania government study commission has proposed legal reforms to curtail power-of-attorney abuses that have cheated the elderly, the disabled and their heirs.

The 222-page report includes draft legislation and is the result of an 18-month study ordered by the state House after a 2007 series of articles in the Post-Gazette. The articles revealed gaps in the law that had allowed attorneys and family members to divert savings and pension benefits to their advantage.

"The majority of powers of attorney work very well, but when they don't work they cause tremendous problems," said Superior Court Judge Anne Lazarus, a member of the advisory committee on estate law that proposed the reforms to the Joint State Government Commission.

The study was ordered after the House passed a resolution by State Rep. Jesse White, D-Washington County, who said he was incensed by reports of POA abuses detailed in the newspaper during 2007.

"I will almost certainly be introducing some sort of legislation for comprehensive power of attorney reform," Mr. White said. Initially, Mr. White and several others had suggested the commission explore adopting a nationwide standard called the Uniform Power of Attorney Act.

The committee did a side-by-side comparison of Pennsylvania law with the proposed uniform act.

"We found that our structure was sound and that we addressed most issues already," said Neil Hendershot, a Harrisburg estate lawyer and expert on POA.

Instead, the committee opted for alterations of the current Pennsylvania law. * * *

MS-NBC's Olbermann on "Life Panels" & Living Wills

The Thursday evening, March 11, 2010, broadcast of Countdown with Keith Olbermann featured an update on his six months' long experiences with his ailing father and his plea for viewers to fill out an advance care directive, also known as a "living will," in his commentary, Life Panels Invaluable for Americans.

In his commentary the previous night, Keith described the medical procedures endured by his stoic father, who nevertheless reacted later:

"Help."

He is mouthing the word "help," over and over and over again. And I get his attention.

He is in full panic. Maybe the x-ray tech hurt my Dad's back, or touched those new chest drains — more likely he did nothing very much at all. But it was just too much for my father.

"Stop this," he mouths. "Stop, stop, stop."

And I say to him: I know for a fact they are not doing anything more to you tonight.

And he looks at me and starts thrashing his head again: "Help, help, help." * * *

Keith is his father's health care agent, and so he asks his father what he should do:

I get his attention again. I ask him: do you want me to stop all of this?

And he looks at me and mouths "yes."

And I ask him: you understand what happens then.

And he looks at me and mouths "yes."

And I ask him: you realize you are not terminally ill, and if we do stop all of this, it might not be quick.

And he mouths "stop this." * * *

But Keith is clear-headed and also aware of his father's wishes; and he advocates for his father to receive pain medication instead:

* * * I said, look, I'm his health proxy, we've had conversations about end-of-life care — we've had them in here, we've had them when he was home and well, I'm not operating in the dark here.

I said I think he really wants the one word he keeps mouthing: He wants help.

Is there any medical reason not to give him some sedation, a little mental vacation from being a patient? * * *

On Thursday evening's broadcast, Keith was talking instead about "Living Wills" as he pleaded with views to communicate their wishes about medical care in advance and sign a completed advance health care directive that also would name an agent to carry out those wishes.

Update: 03/13/10:

Sadly, on Saturday, March 13th, Keith posted on his baseball blog an obituary about his beloved father, entitled Theodore C. Olbermann, 1929-2010.

He did not mention how, or whether, his father's advance care directive was used, but his advocacy of it still shows its value.