New York Estate Planning & Elder Law Blog
When American Top 40 legend Casey Kasem’s daughter, Kerri Kasem, appeared in front of a Los Angeles County Superior Court Judge this past Monday, she told the Court she believed her 82 year old father had been “kidnapped“. Prior to the disappearance the radio icon, who suffers from Lewy body dementia, had been residing in a Santa Monica nursing home receiving 24-hour medical care. Kerri Kasem feared that removal from the nursing facility allegedly by Kasem’s wife, with whom Kasem’s children had been involved in a long-time feud, threatened his health and safety considering his medical condition. Kerri Casem was immediately granted a temporary medical conservatorship, filed a missing persons report with the Santa Monica Police Department, and Kasem was ultimately located on Wednesday in Washington State with his wife. Kasem’s children suspect Jean absconded with their father out of fear that they would coerce him into changing his will.
Casey Kasem’s family saga is a public and an extreme example of how contentious familial relationships can become when disagreements as to the health care of an older family member arise. Medical Conservatorship is a legal concept in the United States where a guardian is appointed by a court to manage the healthcare decision-making concerning an incapacitated or individual. As explained by the New York Department of Health, an individual is determined incapacitated when an attending physician finds to a reasonable degree of medical certainty that the patient lacks ability to understand and appreciate the benefits, risks and consequences of proposed health care. The individual must be able to make an informed decision as to health care. If an individual already has in place an advanced healthcare directive, the decision-making about the individual’s medical care in the event of sudden incapacity, or incapacity due to old age, is already taken care of.
But oftentimes, there is no directive document. That is where the conservatorship arises. Conservatorship is a legal arrangement that requires appointment by a court, granting authority to a legal decision-maker to act on behalf of the incapacitated family member. In addition, a conservatorship provides a legal process where major healthcare decisions, for example removal from life support, must be approved by the court. In the absence of a healthcare directive, conservatorship grants family members a clear legal determination of authority when it comes to medical care of an incapacitated family member.
Of course there are disadvantages to the legal conservatorship over an advanced healthcare directive. Conservatorships can be time-consuming, often requiring a lawyer, extensive paperwork, and can cause contention amongst family members who disagree about their loved one’s care. It is important to remember that appointment as conservator is not an honor, but a serious responsibility and duty.
An advanced healthcare directive, also known as a healthcare power of attorney, and health care proxy are important documents that should be considered before it is ever needed, as it appoints the health care decision-maker early on and can prepare family members before illness or accident arise.