Medford, Oregon 97501 3521 East Barnett. Road P.O. Box 1667 - (541) 770-5466 FOSTER DENMAN, LLP Attorneys 2.4. as as Page THE CIRCUIT COURT OF THE STATE OF OREGON FOR JACKSON COUNTY In the. Matter of the Guardianship of: CASE NO. 13017G6- NORA HARRIS, MEMORANDUM IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER Protected Person. Statutory Fee Authority ORS 125.075(4) Come now, Eric R. Foster and Foster Denman, LLP, and oppose the Motion for Protective Order dated April 19, 2016, as corrected on April 27., 2016. This Memorandum in Opposition is supported by the facts to be presented and the points and authorities set forth below. If I. FACTS TO BE PRESENTED. The Protected Person, Nora Harris, age .63, suffers from early onset dementia. She began developing her condition in 2009. On September 3, 2009, while living in California, Mrs. Harris signed a California form Advance. Directive (the ?Advance Directive?). Under Mrs. I?Iarris?s Advance Directive, her husband, William Harris, was named as her health care representative. Under the terms of Mrs. Harris-?s Advance Directive, she gave Mr. Harris the authority to ?make all health care decisions for me, including decisions to provide, withhold, or Withdraw arti?cial nutrition and hydration and all other forms of health care to keep me alive.? Advance Directive at 2 (italics added). Mrs. Harris further provided in the Advance Directive that'she did not want to be kept alive through life sustaining treatment if am terminally ill and the use of life sustaining procedures would only serve to arti?cially delay the moment of my death . . and have an incurable and irreversible condition that will result in my death within 1 Niemorandum in Opposition to Motion for Protective Order Medford, Oregon 97501 3521 East Barnett Road HO- Box 1667 - (541) 770?5466 FOSTER DENMAN, LLP Attorneys Page a relatively short time.? Advance Directive at 3. Mrs. Harris did not malce any statement in the Advance Directive about normal eating and drinking or any statement about assistance with eating and drinking. In 2013, Mrs. Harris was declared incapacitated by this Court. The Guardianship was established and Mr. Harris was appointed as Mrs. Harris?s guardian. Mr. Harris, as appointed guardian, placed Mrs. Harris at Fern Gardens, a memory care facility in Medford. Since. Mrs. Harris became a resident at Fern Gardens, she has sometimes refused to eat. She also has shown a desire to eat from time to time by finishing her meals. If Mrs. Harris refuses to eat, the staff at Fern Gardens will not pressure her to eat. Those refusals are documented in Mrs. Harris?s records. I Mrs. Harris has the ability to eat ?nger foods without assistance. If she attempts to eat, but has dif?culty eating, then staff at Fern Gardens will help her by prompting her to cat, by lifting food to her mouth, or by lifting food with a spoon or other utensil to her mouth. On April 19', 201 6, Mr. Harris filed a Motion for Protective Order that requested that this Court issue a protective order that Fern Gardens not assist Mrs. Harris. in eating. 11. POINTS AND AUTHORITIES. A. Standard. Under ORS 125 650(1), ORS 125.3050), and ORS 125.400, the standard for granting protective orders is clear and convincing evidence. In this case, Mr. Harris must prove by clear and convincing evidence that the Motion for Protective Order to not allow Fern Gardens to assist Mrs. Harris eating should be granted. B. Mrs. Harris Shows A Desire To Eat. The best evidence of whether Mrs. Harris should be provided food assistance is her current desire to eat. Mrs. Harris could consistently re?ise to eat, if that was her desire. If she refuses meals in the future, Fern Gardens will not pressure her to eat. Until Mrs. Harris refuses to eat, she should 2 Memorandum in Opposition to Motion for Protective Order Medford, Oregon 97501 3521 East Barnett Road R0- Box 1667 - (541) . FOSTER DENMAN, LLP Attorneys Page be able to continue to eat everyday meals with and without assistance. C. Mrs. Harris?s Advance Directive Does Not State That She Does Not Want Help In Eating. Iers. Harris did not want to be helped with eating, she?could have stated that desire in the Advance Directive .. When a person?s life is at stake, the Court should consider the protected person?s instructions made in writing when the protected person signed his or her Advance Directive. Since there are no instructions in writing, the COurt does not yet have clear and convincing evidence of the protected person?s intent. - in this case, Mrs. Harris had the ability to state in the Advance Directive that she did not want assistance. in eating. The Advance Directive was signed when Mrs. Harris had capacity. Since Mrs. Harris did not include a speci?c instruction that she not be helped with eating, the evidence is. not yet clear and convincing that Fern Gardens should not help Mrs. Harris eat. D. Mrs. Harris?s Advance Directive Does Not Apply To Help With Normal cod. Mrs. H-arris?s Advance Directive gives her representative the ability to make all health care decisions on her behalf. Section 1 .3 of Mrs. Harris?s Advance Directive states that ?unless I otherwise specify in Exhibit my agent is authorized to make all health care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care to keep me alive.? Advance Directive at 2 (emphasis and italics added). California law de?nes the term health care as ?any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient?s physical or mental condition.? California Probate Code ?4615. California law further de?nes a health care decision as decision made by a patient or the patient?s agent, conservator, ?or surrogate, regarding the patient?s- health care, including the following: Selection and discharge of health care providers and institutions. Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication. (0) Directions to provide, withhold, or withdraw arti?cial nutrition 3 - Memorandum in Opposition to Motion for Protective Order (541) 770-5466 Medford, OregOn 97501 3521 East Barnett Road PO. Box 1667 - FOSTER DENMAN, LLP Attorneys 19Page 16 and hydration and all other forms of health care, including cardiopulmonary resuscitation.? California Probate Code ?4617. California law does not de?ne health care to include everyday eating and drinking and assistance with everyday eating and drinking. While Mrs. Harris signed a California Advance DirectiVe, she now is a resident of Oregon. ORS 127.515(5) provides that ?an advance directive executed by an adult who at the time of execution resided in another state, in compliance with the formalities of execution required by the laws of that state, the laws of the state where the principal was located at the time of execution or the laws of this state, is validly executed for the purposes of ORS 127.505 to 127.660 and 127.995 and may be given effect in. accordance with its provisions, subject to the laws of this state.? ORS 127. 515(5) (italics added). Under ORS 127. 515(5), Oregon law applies to the administration of the Advance Directive. Under Oregon law, a health care decision means ?con-sent, refusal of consent or withholding or withdrawing of consent to. health care, and includes decisions related to admission to or discharge from a health care facility.? ORS Health care means, ?diagnosis, treatment or care of disease, injury and congenital or degenerative conditions, including the use, maintenance, withdrawal or withholding oflife?sustaining procedures and the use, maintenance, withdrawal or withholding of artificially administered nutrition and hydration.? ORS (italics added). The de?nitions. of health care and healthcare decisions under Oregon law do not include decisions related to everyday food and drink. Providing assistance in eating and drinking everyday food and drink does not involve a health care decision. Mrs. Harris decided in'the Advance Directive that Mr. Harris could withhold arti?cially administered food and hydration on her behalf. She made that health care decision, but did not authorize the prevention of help with everyday food and drink, especially in light of her desire to eat. 4 h?lemorandum in Opposition to Motion for Protective Order LLP 3521 East Barnett Road 30.30:: 1667 - (54117705466 Attorneys at Law Medford, Oregon 97501 FOSTER . Page E. Oregon Law Requires Fern Gardens To Provide Mrs. Harris With Assistance In Eating. I The Oregon Administrative Rules require that residential care and assisted living facilities provide a minimum level of care to their residents. The minimum level of care rules include, ?services to assist the residents in performing all activities: of daily living, on a 24-hour basis, with eating (eg, supervision of eating, chewing, or the use of special OAR 41 1? 05-4 003 0( Fern Gardens IS required by Oregon law to help Mrs. Harris with eating. F. Mrs. Harris Should Not Be Deprived Of The Social Interaction And Comfort That Help With Eating Provides. Even if Mrs. Harris had speci?ed in advance that in a situation such as her present one she would not want help with eating, she is entitled to change her View. As her world becomes more limited, eating and human contact are basic pleasures she can continue to experience." Taking food by mouth and the human contact as she is assisted to eat, would seem to make her life more comfortable and satisfying. Her continuing to eat, both on her own and with assistance, expresses her current view. The Court should not deprive her of these limited, basic satisfactions. G. Mrs. Harris- Should Be Given The Opportunity To Satisfy Her Hunger With Help. Even if Mrs. Harris expressed previously a desire to not to be helped with eating everyday food, she may feel differently now when she' 13 hungry She has expressed her desire to satisfy her hunge1 by eating with and without help from the staff at Fern Gardens. The Court should not deprive her 01 the ability to satisfy her hunger by preventing Fern Ga1 dens from helping he1 to eat everyday food. 5 1. Memorandum in Opposition to Motion for Protective Order . (541) 770?5466 Attorneys at Law 3521 East Bamett Road PO. Box 1667 Medford, Oregon 97501 FOSTER DENNIANPage IH. CONCLUSION. Based on the foregoing, The Motion for Protective Order should be denied. FOSTER DENMAN, LLP Attorneys for Protected Person Date: ,2016 By: 5914. 71m ERIC R. FOSTER, 0813 #021164 PERSON ATTORNEYS Nora Raupers Harris Eric R. Foster, 2636 Table Rock Road Foster Denman, LLP Medford, OR 97501 P. O. Box 1667 Medford, OR 97501-0128 Phone: (541) 770-5466 Fax: (541) 770-6502 E-mail: efoster@fosterdenman.com 6 Memorandum in Opposition to Motion for Protective Order to on 333% smog: ?13333 ?s?s mam-e mamas ms?Page CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Memorandum in Opposition to Motion for Protective Order on the attorney(s) listed below, by electronicmail and by depositing a copy of said document in the Post Of?ce at Medford, Oregon, enclOse'd in a sealed envelope with ?rst class postage prepaid, and addressed as follows: Jason Broesder Arant and Broesder, LLC 3 12 Ivy Medford, OR 9750-1 Email: jason@broesderlaw.com Attorney for Guardian Michael W. Grant Oregon Department of Justice 1 162 Court Street NE Salem, OR 97301?4096 Email: michael.w.grant@doj .state.or.us Attorney for State Long Term Care Ombudsman Dated this I 2? day of July, 2016. FOSTER DENMAN, LLP Attorneys for Protected Person By, at 7C 972;: Eric R. Foster, 021164 Certi?cate of Service Memorandtun in Opposition to Motion for Protective Order