Tuesday, March 11, 2014
National Healthcare Decisions Day (NHDD) is April 16th, the date set aside each year to encourage everybody over age 18 to discuss and plan ahead of a serious illness. Five Wishes makes it easy because it is written in everyday language and deals with the things people care about most: their comfort, maintaining their dignity and other personal, spiritual and family matters.
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If you send us a photo and short account of your NHDD event or family gathering we'll give you a $25 credit for Five Wishes resources. Use this credit for a free DVD or to get copies of the 26 language translations of Five Wishes, pediatric documents, discussion guides, presenters guides, or access to Five Wishes Online. Get more information and tell us about your event here. Submit before May 15 to receive your credit.
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NHDD Five Wishes
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Wednesday, March 5, 2014
Apparently a lot of us were having "driveway" moments today, listening to NPR on the way to work and lingering in the car to hear the finish of the story. My Penn State colleague Amy Gaudion popped into my office to tell me of the "amazing" piece she had just heard, and a few minutes later I received an email from a friend who recommended that same radio story.
So, here's the link to the much recommended piece from NPR's Morning Edition, "Living Wills are the Talk of the Town in La Crosse, Wisconsin."
The Administration for Community Living recently published a series of fact sheets related to advance care planning on the Elder Care Locator. The Fact Sheets are designed to help older adults and their families plan for the care they want when they have a serious illness. The Fact Sheets are about care planning generally, care during advanced cancer and dementia, family caregivers, and the services that can help families during serious illness. Each one provides links to additional resources that may assist families as they face serious illness. View the fact sheets and access downloadable pdf copies here.
Friday, February 28, 2014
In the February 7 disbarment of Kansas attorney Daniel R. Beck, the disciplinary record describes a cascading series of events (including the fact that Beck continued to practice law while on administrative suspension). The heart of the case is the attorney's role in execution of "updated" estate planning documents.
During the disciplinary proceedings, Beck was found to have directed a man to forge the signature of the man's mother, a 90-year old woman in a nursing home, on key documents. Further, the attorney forged the name of his own secretary as the notary on the documents that included a family trust, a general durable power of attorney, a living will, a last will and testament, a health care power of attorney, an assignment of personal property, and an authorization to release health care information.
The attorney had drafted the original estate plan for the woman and her then-husband. In preparing and executing the "updated" documents, he was interacting solely with the son, although the record does not suggest the son was seeking or receiving any "benefit" from the changes.
In attempting to avoid major sanctions, the attorney argued that some of the updates, such as a "new" power of attorney and healthcare power of attorney, were necessary "because in his experience sometimes hospitals and financial institutions would not honor those documents if the documents are from a long time ago." At the same time he argued the updated documents made no substantive changes to the existing plan. No harm, no foul as a defense? The Kansas Supreme Court rejected the argument that the attorney's actions caused no harm to the woman in the nursing home, who died a few months after her signatures were forged:
"Respondent [Beck] admits L.H. was vulnerable but asserts that we must construe the word 'victim' to require a showing that the attorney's conduct 'actually exposed] [a] vulnerable client to real and significant harm,' and argues such as showing was not made in this case.
We need not decide whether the term 'vulnerable victim' requires that an attorney expose a client to actual harm because we conclude the record contains adequate evidence of injury, including $2,800 L.H.'s trust paid to respondent for legal work L.H. never authorized, approved, or used....
Moreover, since respondent never spoke to L.H., he can only speculate as to whether the documents he drafted could comport with L.H.'s current wishes. Put simply, an attorney injures, or at least potentially injures, a client when he or she takes legal action on the client's behalf without ever speaking with the client or ensuring that the proposed action is in accord with the client's wishes."
Hat tip to ElderLawGuy Jeff Marshall for this interesting opinion.
Thursday, February 27, 2014
As earlier reported on this Blog, the Court of Common Pleas of Schuylkill County in Pennsylvania, dismissed the high profile criminal charges against Barbara Mancini, the nurse charged with "causing or aiding" the suicide of her aged father, in violation of 18 Pa.C.S. Section 2505(b). The ruling reviewed testimony presented during a preliminary hearing before a magistrate, as required by the defendant's petition for a writ of habeas corpus. Much has been said by proponents and opponents of assisted suicide in connection with this ruling, but here is the actual opinion, all 47 pages.
The opinion demonstrates a high level of emotion for everyone involved in the case, including the judge. There was a gag order in place during the last several months, so key details about the evidence or the arguments made by counsel are only now available. So, please forgive me if I now use the blogger's prerogative to do more than just report the facts. Three starting points:
- What strikes me as important about this ruling is that it should not be misconstrued as a "win" for those who claim there is a constitutional or other legal right to provide or receive assistance in death. At least not in Pennsylvania under its current law.
- Further, a careful reading of the opinion demonstrates the potential for more confusion (and additional cases) for those who interpret -- misinterpret -- Powers of Attorney, Advance Health Care Directives, Living Wills, or Do Not Resuscitate Orders as granting them legal authority to provide assistance in suicide. Again, that is not the current law in Pennsylvania, or in most other states.
- Finally, a careful reading of the opinion makes it clear -- at least to me -- that the hospice aides who called 9-1-1 in response to the facts in front of them, were acting within the law. They were responding to what the opinion documents fairly well as "admissions" of the criminal act of assisted suicide, facts that took the matter beyond the patient's right to accept or reject life-saving efforts.
In terms of "proof" of a criminal act, the opinion demonstrates the importance of careful preparation of a criminal case when called upon to demonstrate the prima facie elements of the crime charged, as occurs during a preliminary hearing. That is the job of the prosecution team, not the hospice workers. The prosecution, in this instance the Pennsylvania Attorney General's office, either failed or was unable to present independent proof of the facts alleged, and instead were focusing almost solely on the "admissions."
In Pennsylvania, as the opinion discusses, the prosecution needed to present evidence of the person's intention to kill himself, action taken to effectuate the suicide, the third-party's intentional aid or assistance in that attempt, and evidence that the third party's action actually "caused" the attempted suicide. Under Pennsylvania's corpus deliciti rule, the prosecution had to establish these elements without "just" relying on the defendant's own alleged admissios or confession. In particular, the opinion shows the importance of expert testimony to establish cause of death, needed in this case to explain "morphine toxicity."
What the entire case also suggests -- not just the opinion -- is the need for Pennsylvania, and most states, to give fresh consideration to the topic of assisted suicide. The record makes it pretty darn clear that Joe Yourshaw had lived a long life, fought the good fight, was ready to die, was tired of living in pain, and he was competent when talking about his wishes to die. We cannot just stick our heads in the sand and say "this case isn't likely to happen again."
The tragedy associated with the last days of Joe Yourshaw and the confusion surrounding the circumstances under which Barbara Mancini, his daughter, was charged, are events that can and should permit Pennsylvania, like Oregon and Washington before it, to consider whether competent individuals with terminal illnesses should be permitted to work directly with health care professionals to make carefully considered decisions about whether to choose professional assistance with their death. Sons, daughters and spouses, whether or not "nurses," should not be put in this position, and other states have shown us there are options.
Some people will argue that the real tragedy would be to leave loving family members with no option but to violate the law (and either face the potential for criminal prosecution or "hide" the evidence) or turn a blind eye and deaf ear to a loved one's carefully considered pleas. As you may be able to tell, while I think the hospice workers in this case were right to report the evidence they saw and heard that pointed to violation of Pennsylvania's current law, I'm one of those people ready to reconsider that law.
Sunday, February 16, 2014
New York Law School's 2013-14 Symposium Issue on "right to die" topics includes an insider's analysis of opinions from the New York courts, authored by former Chief Judge of the New York Court of Appeals Sol Wachtler. He was the author of a major decision in 1981 for consolidated cases addressing burdens of proof to terminate specific health care measures, including a case where the subject was an incapacitated 83-year old patient on a respirator. In "Right-to-Die Cases: A New York Historical Perspective," he observes:
"These issues were raised during an age of judicial infancy in resolving life-sustaining medical treatment cases. Much of the law we pronounced formed the basis for subsequent legislation, while other decisions demonstrated the need for such legislation. Today we have a more comprehensive body of law on which to rely and we are most grateful to those who have shaped this legislation and jurisprudence. Indeed, perhaps one of the most gratifying results of all of the work described above is that by virtually all accounts these matters are now successfully resolved by the parties involved, with recourse to the courts having become a relatively infrequent occurrence."
Some of you outside of New York might be thinking "Sol Wachtler, that's a familiar name... isn't he the one who...?" A unique biography of the former jurist, who at 80+ is still working hard, most recently as an adjunct professor in constitutional law at Touro Law School, is here.
Friday, February 14, 2014
In the 1990s advance care planning (ACP) developed as an alternative to the traditional approach to creating advance directives. In contrast to the traditional approach, the ACP concept views advance health care planning as a lifelong communication process. All persons in a target group are actively offered professional facilitation. Furthermore, the relevant institutions and professionals are involved and receive regular training and updates. They thus assume responsibility for ensuring that newly written advance directives are relevant, valid, available when needed, and honored reliably. In an article published in the latest issue of Deutsches Ärzteblatt International (Dtsch Arztebl Int 2014; 111 (4): 50–57), Jürgen in der Schmitten and his co-authors describe the advantages of ACP over the traditional approach to creating advance directives.
They compared the data of 136 residents of three intervention nursing homes with those of 439 residents of ten control nursing homes. Over the course of the 16.5-month observation period, 49 (36%) of the participants in the intervention nursing homes completed new advance directives, compared with only 18 (4.1%) in the control nursing homes. A far higher proportion of the newly written directives in the intervention region were signed by a physician and provided clear instructions on how to proceed in an emergency.
The authors conclude that implementation of an ACP program in German nursing homes leads to much higher numbers of effective advance directives than has previously been the case. Classic advance directives, in contrast, are seldom to hand when needed, rarely relevant, of dubious validity, and are often disregarded by medical staff. Jürgen in der Schmitten and his co-authors urge greater attention to ACP and recommend further research.
Wednesday, February 12, 2014
Peter Strauss, Co-Director of the Elder Law Clinic at New York Law School, leads off his school's recent Law Review symposium by reminding us of a powerful early piece published in 1983 by Marion Roach. She recounted the first moments when she realized her mother her mother "might be going mad." She went on to explore her mother's Alzheimer's and the family's struggle in her well-regarded memoir, Another Name for Madness.
Professor Strauss' Introduction opens the symposium issue on the theme of Freedom of Choice at the End of Life: Patients' Rights in a Shifting Legal and Political Landscape. Videos of the presentations are available here.
Sunday, February 2, 2014
Global Atlas of Palliative Care at the End of Life
Published jointly by the World Health Organization and the Worldwide Palliative Care Alliance, the Atlas is the first document to map the need for and availability of palliative care globally.
Using maps, graphs and case studies, and drawing on a wealth of resources, the Atlas addresses the following questions:
What is palliative care?
Why is palliative care a human rights issue?
What are the main diseases requiring palliative care?
What is the need for palliative care?
What are the barriers to palliative care?
Where is palliative care currently available?
What are the models of palliative care worldwide?
What resources are devoted to palliative care?
What is the way forward?
This important document shines a light on the need for palliative care globally, and is an excellent tool to advocate for the inclusion of palliative care in the global, regional and national health agendas.
You can also help to raise awareness of the Atlas by downloading promotional materials here.
Thursday, January 23, 2014
There are a lot of impressive people who teach courses in the "law and aging" spectrum, people I know by name, but have never actually met. I suspect I'm not alone in this regard. So, this post is the first of what I hope to offer as a series of "spotlights" on colleagues teaching "elder law" -- broadly defined -- at law schools across the U.S. and Canada. My goal is go beyond the law school profiles with these spotlights.
Shining the spotlight on Associate Professor Lisa Brodoff at the Seattle University School of Law is a great place to start.
Lisa Brodoff is the Director of Clinical Programs, which keeps her busy with Seattle's Administrative Law and Trusts and Estates Clinics, as well as teaching Elder Law. One of the first aspects of Lisa's career that struck me is that she was well ahead of the curve on same-sex marriage equality issues, having filed an Amicus brief in Washington State in 2005, arguing that without marriage protection, same-sex elder couples risked impoverishment, loss of the family home, and could all-too-easily encounter "uninformed and insensitive health care." Her argument, even if unpersuasive in the short run with a majority of the Washington Supreme Court (there were strong dissenting opinions from those who understood), certainly predicted the path for success in Windsor.
One of Professor Brodoff's latest projects has been working on Alzheimer's Disease and Dementia Mental Health Advance Directives. She has developed a first-of-its kind planning document, one that she originally proposed in a law review article for the Elder Law Journal in 2010. Links to her template, plus detailed instructions for use, are now available on Compassion and Choices' website. Students in her Trusts and Estates Clinic are already working with this format for advance directives for clinic clients.
Now we get to the really fun part of Lisa's background. She's a musician (electric bass!), singer and songwriter -- for a band called The Righteous Mothers. Absolutely fun music, great harmonies, well-crafted lyrics, often with a strong vein of humor, and a fair share of "law and aging" content. Just check out the YouTube video for their song "Old Fat Naked Women for Peace." I double-dog dare our readers to do so!
As my Elder Law Prof Blogging colleague Becky Morgan likes to say, "Elder Law Rocks!" -- and this time we can say so "musically."
Wednesday, January 22, 2014
The always thoughtful ElderLawGuy, Jeff Marshall, has a great blog post on the complications that can arise from use of powers of attorney, especially with financial institutions. He uses Pennsylvania law to develop the topic, but there are certainly parallels in other states.
Monday, January 13, 2014
A few years ago, one of the more perplexing cases handled by Penn State's Elder Protection Clinic involved the sale of deferred annuities (specifically, an annuity that would not fully mature for 20 years) to a senior, a widow in her early 80s.
The individual was a ripe target for a manipulative sales pitch, having recently been diagnosed with early stages of dementia, even though at the moment of sale she was still living independently in her home. She was able to talk and communicate; arguably she did not seem impaired. She was told the product would save on taxes -- a pitch alluring to the frugal woman -- except for the fact that she really didn't need to save on taxes.
If one lives long enough or has looming care needs even at an earlier age, an individual's post-death estate planning goals can conflict with pre-death care needs. In the clinic client's case, the woman's annual income was modest, and her total estate was not large enough to trigger other major taxes. The assets used to fund the annuity were virtually her entire savings. Several months later, her daughter learned of the purchase, while exploring care options for her mother. Her mother was facing ineligibility for Medicaid, as the purchase of the deferred annuity would be treated as transfer, while the alternative was a large penalty if she cashed in the annuity "early."
How often does this -- or worse -- happen?
In "Still No Free Lunch: Recent Regulatory Initiatives to Protect Seniors From Fraud in the Sale of Investment Products," 41 Securities Regulation Law Journal 397 (Winter 2013) (paywall protected; available on Westlaw as 41 No 4 SECRLJ Art 2), attorneys Ivan B. Knauer and Michele C. Zarychta address recent efforts to prevent or address fraudulent practices by an array of regulatory bodies. The 2013 piece updates their 2008 article (available at 36 No 4 SECRLJ Art 3). They outline several types of fraud and various financial products often marketed specifically to elders. For example, they observe:
"One of the most pressing concerns of the regulatory entities is the improper -- or at least confusing-- use of 'senior' designations by professionals, implying that a professional has expertise or training in senior-specific issues. FINRA [the Financial Industry Regulatory Authority] 'Rule of Conduct 2210 prohibits brokerage firms and brokers registered with FINRA from referencing nonexistent or self-conferred degrees or designations or referencing legitimate degrees or designations in a misleading manner.' Misleading use of such designations may also violate federal securities laws or state laws."
The authors, who are experienced in representation of investment and financial service companies, recognize that business lawyers can help clients recognize the need to "take measures to ensure that their own policies and procedures protect seniors." "Still No Free Lunch" is a reminder that attorneys who are advisers to companies can and should be a larger part of the solution, rather than be viewed as part of the problem.
In reading the article, which emphasizes regulators' programs to "educate" the public, I am struck by the likelihood that a key tipping point occurs when a senior's susceptibility to a manipulative pitch is outweighed by his or her weakened ability to recognize risk, regardless of any fraud-prevention education. That was true, for example, with our clinic's client. Her life-time frugal nature was still intact; however, her judgment about whether she needed to "save" money on taxes was diminished. More education was not the solution for her, as she had probably lost the ability to appreciate its application. Indeed, a common marketing practice to seniors -- free lunches or dinners disguised as "educational seminars" -- trades upon that very fact, thus giving rise to the "no free lunch" theme in both articles by authors Knauer and Zarychta.
The authors detail stepped up enforcement efforts, including recent measures by the Consumer Financial Protection Bureau, established in 2010.
Hat tip to Penn State Dickinson Law Professor Lance Cole, who shared this interesting article.
January 13, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, December 30, 2013
One of the most memorable pieces I've read was a New York Times essay written a few years ago by Katy Butler. Butler wrote with restrained emotion and honesty about her father's struggle with deepening Alzheimer's, fueled beyond all hope of better days by his pacemaker. She later expanded on the essay with a book published in 2013, "Knocking on Heaven's Door: The Path To a Better Way of Death," where she digs into the background of legal and medical issues about end-of-life, and details her mother's very different path.
Diane Rehm has a fascinating interview with Katy Butler, available on podcast and being re-broadcast today on many public radio stations. Near the end of the hour-long segment, one of the callers is an Elder Law attorney (I didn't catch his location -- I was blogging as I listened!). Here's a link to Diane Rehm's website for details on the interview.
Wednesday, December 18, 2013
Via the American Cancer Society:
A new review says palliative care’s association with end of life has created an “identity problem” that means the majority of patients facing a serious illness do not benefit from treatment of the physical and psychological symptoms that occur throughout their disease. The editorial is co-authored by palliative care experts at Harvard Medical School, Massachusetts General Hospital, the American Cancer Society, and Johns Hopkins University, and appears in the New England Journal of Medicine. The authors say palliative care should be initiated at the same time as standard medical care for patients with serious illnesses, and not brought up only after treatment has failed.
The authors say for palliative care to be used appropriately, clinicians, patients, and the general public must learn the fundamental differences between palliative care and hospice care, a distinction that is not well-known. Seven in ten Americans describe themselves as “not at all knowledgeable” about palliative care, and most health care professionals believe it is synonymous with end-of-life care. While both are intended to relieve suffering, hospice care provides care for people in the last phases of an incurable disease so that they may live as fully and comfortably as possible. Palliative care focuses on helping patients get relief from symptoms caused by serious illness and is appropriate at any age or stage in a serious illness. (For more information, see: "Palliative Care" on cancer.org.)
Adding to that is the fact that debates over “death panels,” physician-assisted suicide, and other factors have made policymakers reluctant to devote resources to initiatives perceived to be associated with death and dying. The authors point to lower levels of government funding for palliative care research compared to funding for other specialties.
Monday, December 16, 2013
Following up on yesterday's post about the aid-in-dying trial recently concluded in New Mexico:
Recent headlines and stories about a poll from The Pew Research Center's Religion & Public Life project missed the real news. The poll showed that a majority or "two-thirds of Americans (66 percent) say there are at least some situations in which a patient should be allowed to die" and concluded "the share [of people] saying they would stop their treatments so they could die has remained about the same over the past 23 years."
Yet, many subsequent headlines and stories about the poll focused on a slight increase in the percentage of Americans who say that doctors should do everything possible to keep patients alive.This latter finding is not surprising given the growing chasm of access to health care between the wealthiest and poorest Americans over the last few decades. It is only natural that many Americans who are medically underserved or marginalized would want more medical care at the end of life when asked that question. In addition, health care has seemed like a luxury to millions of Americans who cannot afford it. But thanks to implementation of the Affordable Care Act starting next month, many will have access to more and better-quality health care.
Equally important is that everyone feels differently about how much medical treatment they want at the end of life based on the specific circumstances they are facing. These critical end-of-life decisions are complex and tightly connected to a variety of factors in a person's life or situation. For example, 57 percent of those polled say they would tell their doctors to stop treatment if they had a disease with no hope of improvement and were suffering. That figure is 52 percent when the same people were asked if they would want to stop receiving treatment if they had an incurable disease and were totally dependent on someone else for their care.
Sunday, December 15, 2013
Compassion & Choices and the ACLU of New Mexico today concluded arguments in a landmark trial seeking to establish that aid in dying is legal in New Mexico. Morris v. New Mexico is a test case, bringing before a court for the first time the claim that ambiguous state laws prohibiting “assisted suicide” do not apply to physicians who write aid-in-dying prescriptions to mentally competent, terminally ill adults.
The court accepted an amicus brief in the case filed by the New Mexico Psychological Association. It concludes that “the practice of good professional psychology in New Mexico requires that the law … recognize that aid in dying is not a form of suicide.” The trial included two days of testimony from patient and physician plaintiffs, and expert witnesses. The judge said she intends to rule on the case within 30 days.
Compassion & Choices Director of Legal Affairs and Advocacy Kathryn Tucker and ACLU of New Mexico Legal Director Laura Schauer Ives jointly represent the plaintiffs. Tucker was counsel in a somewhat similar Montana case in which the right to choose aid in dying was recognized, Baxter v. Montana.
“This case challenges the assumption that vague, antiquated prohibitions of assisted suicide pertain to aid in dying. The assumption is unfounded,” says Tucker. “Such laws are intended to prevent the impulsive act of an otherwise healthy person to end his life, perhaps due to situational depression, causing impaired judgment. The choice of a mentally competent, terminally ill patient to cut short suffering before death, when the patient finds the dying process unbearable, is fundamentally different and not addressed by such laws.”
“I don’t want to suffer needlessly at the end,” she testified in court.
Patient plaintiff 49-year-old Aja Riggs testified about being diagnosed with advanced uterine cancer and wanting the comfort of knowing the option of aid in dying is available if her suffering in the final stages of her illness becomes unbearable. Thankfully, Aja’s cancer has been in remission for about one year, but she realizes that statistically it is likely to return.
One of the physician witnesses was plaintiff Dr. Katherine Morris. She is a surgical oncologist from Albuquerque who previously practiced in Oregon, where she provided aid in dying to terminally ill patients. Dr. Morris and one of her patients were featured in HBO’s 2011 award-winning documentary, “How to Die in Oregon.” “There are a lot of cruel things cancer can do, especially as they [patients] approach the end,” Dr. Morris testified in court.Read the AP story here.
Sunday, December 1, 2013
Received from Lindy Wilmott, Director, Health Law Research Centre and Faculty of Law, Queensland University of Technology
The Queensland University of Technology Health Law Research Centre, Dalhousie Health Law Institute and Tsinghua Health Law Research Centre are pleased to invite you to the International Conference on End of Life: Law, Ethics, Policy and Practice 2014 (ICEL 2014). This interdisciplinary conference will be hosted by the Queensland University of Technology Health Law Research Centre in Brisbane, Queensland, Australia from 13-15 August 2014.
More information about ICEL 2014 is available here: http://icelconference2014.com/.
Confirmed Plenary Speakers
We are delighted to announce the following confirmed plenary speakers: ·
- Professor Peter Singer, Ira W. DeCamp Professor of Bioethics, University Center for Human Values, Princeton University and Laureate Professor, Centre for Applied Philosophy and Public Ethics, University of Melbourne (in a debate on euthanasia and assisted suicide)
- Professor Sheila McLean, Emeritus Professor of Law and Ethics in Medicine, Glasgow University (on terminal sedation)
- Professor Jocelyn Downie, Professor in the Faculties of Law and Medicine, Dalhousie Health Law Institute, Dalhousie University (on withholding and withdrawal of potentially life-sustaining treatment)
- Assistant Professor Charles Camosy, Assistant Professor of Christian Ethics, Fordham University (in a debate on euthanasia and assisted suicide)
- Dr Peter Saul, Senior Intensive Care Specialist, John Hunter Hospital (on how we are dying)
Call for abstracts
The call for abstracts to present at ICEL 2014 is now open. This is an interdisciplinary conference and abstracts are encouraged from the disciplines of law, medicine, health, bioethics and other fields relevant to end of life decision-making and care. Abstracts on the conference’s four sub-themes are particularly welcome: 1. Withholding and withdrawal of potentially life-sustaining treatment (e.g. advance care planning, futile treatment) 2. Palliative care and terminal sedation 3. Euthanasia and assisted suicide 4. Determination of death and organ and tissue donation.
For general enquiries about ICEL 2014, please contact QUT Events at firstname.lastname@example.org or +61 7 3138 9358.
Tuesday, November 26, 2013
In central Pennsylvania, WITF, our local public radio station, has a great, daily, hour-long program wth "Smart Talk" on hot topics, often drawing upon local experts. Recently, the program was on hospice services and palliative care, and it sparked thoughtful conversation and dial-in questions. The program is now available as a podcast. November is "National Hospice & Palliative Care Month."
Wednesday, October 23, 2013
Powers of Attorney (POAs) are a key tool in estate planning and Medicaid planning. A thoughtfully drafted POA can avoid the need for a guardianship, for example, and thus avoid delays, embarrassment and greater expense for a principal who later becomes incapacitated.
Unfortunately, POAs can also be a tool for misuse by agents who can't resist the temptation to help themselves, rather than their principals. For a number of years, states have been struggling to balance utility against risk.
In Pennsylvania, for example, prior to 1999, statutory law governing POAs permitted principals to grant agents the authority to make gifts. Civil case law interpreted such gift-giving authority, unless expressly limited, as permitting agents to make "self-gifts." Even if the agent's self-gifting put the principal in serious financial jeopardy, some prosecutors declined to prosecute. Following a series of troubling reports and cases, in 1999 the Pennsylvania legislature amended state law to declare that all agents appointed under POAs were subject to specific fiduciary duties. The change also imposed a statutory presumption of limited gift authority (tied to annual federal gift tax exclusions) unless the principal expressly granted the agent "unlimited" gift authority.
Concern about misuse of powers of attorney has grown on a nationwide basis,especially after high profile cases such as that of New York heiress Brooke Astor, where her son used a POA to sell off artwork and other valuable property, while reportedly keeping his mother isolated from friends.
Even before the Brooke Astor case came to light, academics, legislators, judges and practitioners worked together in the Uniform Law Commission to propose amendments to statutory authority governing POAs, resulting in the Uniform Power of Attorney Act of 2006 (UPOAA), which superseded prior uniform law proposals. The UPOAA attempts to rebalance risk and power, or as the Commission summarizes:
"The UPOAA seeks to preserve the durable power of attorney as a low-cost, flexible, and private form of surrogate decision making while deterring use of the power of attorney as a tool for financial abuse of incapacitated individuals. It contains provisions that encourage acceptance of powers of attorney by third persons, safeguard incapacitated principals, and provide clearer guidelines for agents."
Adoption of the UPOAA has been fairly slow. As of today, only 13 states plus the U.S. Virgin Islands, have enacted the UPOAA.
In 2013, legislatures in Mississippi (H.B. 468) and Pennsylvania (S.B. 620) are considering adoption. In Pennsylvania, the need for clarification has been heightened by reaction to the Pennsylvania Supreme Court's opinion in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010), where a POA was signed by a hospitalized principal, and used by the husband/agent to make self-benefiting changes to his wife's retirement accounts, while his wife was incapacitated.
Court practice and enforcement policies on POAs, guardianships and elder abuse are also under consideration by the Pennsylvania Elder Law Task Force (2013), chaired by Justice Debra Todd of the Pennsylvania Supreme Court.
In Pennsylvania, views on what changes to POA laws are necessary differ in small or large ways among bankers, estate attorneys, elder law attorneys and district attorneys, just to name a few of the interested parties.
The scholarship of law professors has been important to the debate over proper use of POAs, including two articles by Valparaiso Law Professor Linda Whitton, "Durable Powers of Attorney as Alternatives to Guardianship: Lessons We Have Learned" and "The New Power of Attorney Act: Balancing Protection of the Principal, the Agent and Third-Persons."
By the way, when I first drafted this post, I titled it "The Problem(s) with Powers of Attorney." Overnight, I rethought that title, because many POAs are never abused and agents frequently go above and beyond in performing uncompensated services, including financial management, for aging principals. I therefore retitled the post. What law reform movements are attempting to do is reduce the potential for abuse. Human nature being what it is, there is probably no law that can prevent abuse by a wrongly motivated agent. Who to trust with powers granted under a POA will always be an important matter for families to consider and discuss with their legal and financial advisors.
October 23, 2013 in Advance Directives/End-of-Life, Current Affairs, Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 28, 2013
The August issue of the e-Journal from the ABA Commission on Law and Aging is now circulating. It is a particularly rich issue of Bifocal, including articles on the critical importance of evidence-based priorities for support of legal services, comparative state information on use of POLST forms, and a report on funding of 11 new legal service projects by the Administration on Aging.
My favorite article, however, is by Charlie Sabatino, titled "Eight Advance Care Planning Lessons That Took Me Thirty Years to Learn." I suspect seasoned elder law attorneys might join me in concluding that this article should be mandatory reading for all general practitioners (and health care providers?!). The over-simplified reliance on "form book"living wills needs to be changed. As Sir Charles implies, lawyers can be part of the solution and should be less a part of the problem.
Any additional observations on the practical problems with advance care directives?
Please feel free to comment below!