TO DRINK OR NOT TO DRINK:THAT IS THE QUESTION - MAGiC JOURNAL, OCTOBER 2000 By Orrin Tietz and Brent Wm. Primus, J.D.

Minn. Stat. § 525.56, Subd. 3 (4)(a) reads as follows:

This article will explore the role of the conservator with respect to a conservatee's use of alcohol. For some conservatees the issue may not even arise, for instance, an elderly person with advanced Ahlzimers living in a nursing home or a young adult with severe mental retardation living in a group home. Even if these persons were able to form the desire or intent to drink, they would not have the means to do so.

However, for individuals who are only moderately incapacitated, issues relating to the use or abuse of alcohol can certainly arise. Such a conservatee might be a young adult who is just beginning to experiment with alcohol (and who may or may not be of legal drinking age) or an elderly person with drinking patterns established over the course of their entire life.

LEGAL FRAMEWORK. The issues include the basic legal questions as to whether a conservatee has a right to drink at all and whether a conservator has any authority or duty with respect to the conservatee's drinking. A quick check of the decisions of the Minnesota appellate courts did not lead to any decision which specifically addressed these two questions. Accordingly, the conservator, as is often the situation, will have to rely on the language of the conservatorship statutes for guidance.

Minnesota Statute § 525.56 is entitled "Guardian's or conservator's powers and duties". While the provisions of M.S. § 525.56, Subd. 3, are often colloquially described by conservatorship attorneys and conservators as "the powers", a conservator should not overlook the fact that the provisions of Subd. 3 include duties, as well as powers.

The portions of this statute most relevant to our discussion are as follows:

Subd. 3 (1) The POWER to have custody of the ward or conservatee and the power to establish a place of abode within or without the state, except as otherwise provided in this clause. The ward or conservatee or any person interested in the ward's or conservatee's welfare may petition the court to prevent or to initiate a change in abode. A ward or conservatee may not be admitted to a regional treatment center by the guardian or conservator except (i) after a hearing pursuant to chapter 253B; (ii) for outpatient services; or (3) for the purpose of receiving temporary care for a specific period of time not to exceed 90 days in any calendar year.

(2) The DUTY to provide for the ward's or conservatee's care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements, and, whenever appropriate, training, education, and habilitation or rehabilitation... Failure to satisfy the needs and requirements of this clause shall be grounds for removal of a private guardian or conservator, but the guardian or conservator shall have no personal or monetary liability.

(4) (a) The POWER to give any necessary consent to enable the ward or conservatee to receive necessary medical or other professional care, counsel, treatment or service, except that no guardian or conservator may give consent for psychosurgery, electroshock, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the court as provided in this clause. The guardian or conservator shall not consent to any medical care for the ward or conservatee which violates the known conscientious, religious, or moral belief of the ward or conservatee...

(6) The DUTY and POWER to exercise supervisory authority over the ward or conservatee in a manner which limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services (emphases added).

When a conservatorship is created the conservator is usually granted all or most of these powers and duties.

When a conservator exercises these powers and duties the Minnesota courts have long held that the decisive factor when making any choice on behalf of conservatee is "the best interests of a conservatee". While the decisions of the Minnesota appellate courts often discuss what might be the best interests of a conservatee in the situation before them, they do not appear to have ever provided a general definition. However, it has been stated that "at a minimum, any determination of a conservatee's best interest must involve some consideration of the conservatee's wishes". (Conservatorship of Torres, 357 N.W.2d 332 (Minn. 1984)). It has also been stated that in evaluating a conservatee¹s best interests, consideration must be given to the conservatee's overall welfare. (In Re Medworth, 562 N.W.2d 522 (Minn. App. 1997)).

Minnesota Statute § 525.539, Subd. 7, includes the following definition of a ward or conservatee's welfare: (i) food, clothing, shelter, and appropriate medical care; (ii) social, emotional, religious, and recreational requirements; and (iii) training, education, and rehabilitation.

The ultimate consideration of what is in the conservatee's best interests is whether the alternative is the least restrictive to the conservatee's rights and liberties. The establishment of a conservatorship does not per se deprive the conservatee of the right to drink any more than it deprives him or her of the right to own a handgun, drive on the freeway, smoke cigarettes, download pornography from the internet, buy lottery tickets or to get married. However, a conservator who was granted the powers and duties enumerated above would certainly have the legal authority, i.e. power, to restrict such activities and the legal obligation, i.e. duty, to do so when and if it is "in the best interests of the conservatee".

THE CONSERVATOR'S ROLE. In addition to the legal framework discussed above, there are also many practical issues which arise, for instance, should a young adult conservatee be allowed to drink and, if so, what would be the appropriate parameters? How does a conservator distinguish appropriate social drinking from inappropriate drinking or alcoholism? In sum, how does a conservator exercise his or her role as a conservator in discharging the powers and duties granted to him or her by the Probate Court in a manner which is in the best interests of the conservatee?

From the perspective of a chemical dependency counselor, there are at least three areas a professional conservator may wish to consider when acting in the best interest of the conservatee who wants to use alcohol. What the conservator is able to do will depend on which powers and duties he or she has been granted.

THE CONSERVATEE'S VALUES. While the use of alcohol, a drug, is generally accepted, even highly encouraged, in our society, we all judge its use with our own set of morals and values. Some would not use at all. Some would use, but find drunkenness offensive. Some would limit intoxication to "safe" situations. Some have virtually no limits. For a young conservatee, or sometimes for an older one, the conservator might help the conservatee think through drinking decisions within the conservatee's own values. This may also be the opportunity to talk about drinking responsibly, especially with a young conservatee.

MEDICAL ISSUES. The use of alcohol is medically contraindicated for many diagnoses from seizure disorders to diabetes. Alcohol reacts with a host of medications to alter the medication's effectiveness. It would be important for the conservator to know whether the conservatee can safely use alcohol at all. The conservatee's physician would be able to provide this information and might be enlisted to advise the conservatee.

Unless the individual is alcoholic, advice alone may be adequate even when it is sometimes broken. Just as the diabetic is given advice about diet, which the diabetic may break occasionally at his or her own peril, so an occasional use of alcohol may be risky, but not life threatening. An acceptable amount of rule breaking may have to be tolerated. It would behoove the conservator to make sure the conservatee is advised and document well.

THE DISEASE OF ALCOHOLISM. The single most helpful definition of alcoholism is "to lose control". If a person can have a drink and stop with no serious consequences, he or she is probably not an alcoholic and simple advice about drinking behavior may suffice. But if each time the individual drinks he or she does not stop until there are negative consequences, the person may be addicted and the consequences may become severe.

The individual's behavior may become unpredictable and harmful to self or others. The person¹s living arrangement may become threatened because others are unwilling tolerate the person¹s behavior. Heavy alcohol use eventually affects virtually every organ of the body causing emergency hospital admissions, producing depression, affecting cognition, and eventually ending in death. To simply advise the alcoholic that he or she should not drink is ineffective and treatment may be necessary.

Keep in mind that a hallmark of this disease is denial. When asked, the alcoholic will say he or she does not drink or will minimize drinking and its related consequences. The alcoholic sees his or her behavior differently than others see it and may be firmly convinced there is no problem even when the problems are blatantly obvious. Often the alcoholic reacts angrily when questioned about alcohol use. In order to evaluate drinking behavior, the conservator may need to seek physical evidence such as empty bottles, changes in behavior such as not eating properly, and the reports of others.

The conservator who suspects alcoholism may wish to seek an assessment of the conservatee's drinking behavior. A professional chemical health assessor is qualified to diagnose alcoholism, recommend the most appropriate treatment program and determine whether the individual qualifies to receive consolidated funding to support treatment. The county chemical dependency treatment department is able too provide a listing of qualified assessors.

The incidence of alcoholism among persons with diagnoses such as traumatic brain injury and certain mental illnesses is higher than in the general population. Often persons with such diagnoses require special attention and understanding during treatment, but there are few specialized programs.

At the time of referral to a treatment program, it is best to give the admitting counselor a clear description of the conservatee's diagnoses, behaviors, and mental limitations to help the counselor determine whether the program is prepared to treat the conservatee. The conservator should do the research to ensure the program is appropriate for the client.

In the event that the conservatee is unwilling to voluntarily enter treatment, problems arise. The power of the conservator to establish a place of abode for the conservatee (MS § 525.56, Subd. 3(1), see above) is not unlimited. The issues relating to involuntary placement or treatment are beyond the scope of this article. Suffice it to say here that, depending upon the seriousness of the underlying problem, the conservator may have little choice but to initiate a commitment proceeding pursuant to Minnesota Statute Chapter 253B.

Studies indicate that the longer a recovering alcoholic receives structured support for sobriety, the more likely the person will remain in recovery. After treatment the conservator might consider placement in a living environment that provides ongoing structured support for sobriety and limits access to alcohol. It is important to understand that the recovering alcoholic will not be able to drink alcohol safely again.

TREATMENT PROGRAMS FOR SPECIAL POPULATIONS. Two programs in the Metro area that provide specialized treatment are listed below.

Walker Cityview Chemical Health Program, 618 East 17th Street, Minneapolis, Minnesota, 612-332-3541. This program provides treatment for persons who receive nursing and medical care at Walker Cityview, a skilled nursing facility, and focuses on the older adult.

Vinland Center, Lake Independence, Loretto, Minnesota, 612-479-3555. This program provides treatment for persons with cognitive disabilities associated with brain injury, mild mental retardation, mental illness and other conditions.

QUESTIONS? Send inquiries to frontdesk@primuslawoffice.com or call us at (612) 333-0909