Magazine article Developments in Mental Health Law
Conviction of Legal Guardian for Felonious Neglect of the Medical Treatment of an Incapacitated Person Upheld
The Virginia Supreme Court upheld the conviction of a woman for violating a statutory provision that makes it a felony for any "responsible person" to abuse or neglect an incapacitated person when that abuse or neglect results in serious bodily injury or disease to the incapacitated adult. VA. CODE [section] 18.2-369. This provision defines "neglect" as the "knowing and willful failure" to provide treatment, care, goods, or services that results in injury to the health or endangers the safety of the incapacitated adult. The court relied on the definition of "willful" as applied to a parallel criminal statute governing child abuse and neglect and determined that it "contemplates an intentional, purposeful act or omission in the care of an incapacitated adult by one responsible for that adult's care."
The court concluded that in this case the woman knowingly and willfully failed to provide medical treatment to her incapacitated 83-year-old mother. In 1997, the woman had been appointed as her mother's legal guardian.
During a January 2000 examination, the mother's condition was diagnosed as "advanced Parkinsonism, multi-infarct dementia, hypertension, atrial fibrillation, osteoarthritis, along with early stage 2 decubiti" (i.e., bedsores). The examining physician did not observe indications of malnourishment at the time but informed the daughter to return to his office with her mother in six months or sooner if her mother's condition deteriorated.
The follow-up appointment was not kept and in September 2000 the mother was admitted to an emergency room in a severely hydrated and undernourished state with early stage 4 decubiti that had not been treated properly. …