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 email@example.com 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!
Sunday, August 25, 2013
Case Watch: Pennsylvania Daughter/Nurse Charged with Unlawful Assisted Suicide in Elderly Father's Death
Pennsylvania's Attorney General has taken over prosecution of Barbara Mancini, a Pennsylvania woman in her fifties, for allegedly providing a vial of morphine to assist her 93-year-old father's suicide. The AG's role was prompted by a conflict for the local District Attorney.
According to news accounts, the father, Joe Yourshaw, was on hospice with severe complications from multiple conditions, including diabetes, kidney failure and heart problems. In Pennsylvania, "hospice" status is limited to "terminally ill" patients, requiring a medical opinion that the patient's "life expectancy is 6 months or less." 55 Pa. Code Section 1130.3
The daughter, who is a nurse, is alleged to have made self-incriminating statements to a hospice nurse, who in turn called 911. A central issue is whether the daughter's February 2013 actions were intended merely to relieve her father's pain or end his life as he requested.
While Oregon, Washington, Montana and Vermont permit some types of assisted suicide, Pennsylvania does not, and in fact Pennsylvania was among the last of the states to enact laws permitting individuals to adopt "advance" directives for end-of-life treatment decisions such as whether to continue hydration and nutrition. Assisted suicide is, of course, even more controversial.
Pennsylvania law states that "a person who intentionally aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree." 18 Pa.C.S.A. Section 2505(b).
To complicate the Mancini case history, according to news accounts Yourshaw was transported by emergency personnel from his home to a hospital, where he was administered an antidote to the morphine, even though he reportedly had a "Do Not Resuscitate" directive in place. Yourshaw reportedly survived four days before dying.
Daughter Barbara Mancini's case is now awaiting a trial date in Schuylkill County's Court of Common Pleas. The case is attracting national attention, with recent editorials opposing prosecution appearing in Harrisburg's Patriot News and the New York Times.
The nonprofit organization Compassion & Choices has initiated a campaign calling for the AG to drop the case and it describes the prosecution as an example of "a state's overreaching police power." However, in 1997, in Washington v. Glucksberg, 521 U.S. 702, the U.S. Supreme Court declined to recognize a constitutional right to assisted suicide, thereby upholding the rights of states to bar assisted suicide even if performed by physicians.
In Glucksberg, the Supreme Court observed that "Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide," while concluding that the court's own decision "permits this debate to continue."
The Mancini case appears to place the issue of "elder" assisted suicide on center stage, while at the same time shining a light on an important sub-set of the issue, the "morality, legality and practicality" of potential roles played by family members in an elder's decision-making and actions.
News stories on the Mancini case often include a poignant photograph, of the daughter on her wedding day, dancing with her father.
Thursday, August 15, 2013
German researchers assessing clinical practice guidelines for dementia care in 12 countries, including the United States, conclude that key ethical concerns are often not addressed. The reseachers looked for 31 specific ethical issues identified as core in a previous study. USA guidelines, developed by the American Psychiatric Association, had a comparatively high score (77%) for consideration of the ethical topics. Overall the study suggested that four issues, "adequate consideration of advanced directives in decision making, usage of GPS and other monitoring techniques, covert medication, and dealing with suicidal thinking," were not addressed in at least 11 of the 12 national guidelines.
For the full study, Inclusion of Ethical Issues in Dementia Guidelines: A Thematic Text Analysis, published August 13, 2013 in a peer-reviewed, open-source publication, see here.
Wednesday, February 15, 2012
Consumer Voice hosts two-part Webinar Series on Guardianship, Financial Powers of Attorney, and Advance Care Planning
Join Us for a Two-Part Webinar Series on
Guardianship, Financial Powers of Attorney, and Advance Care Planning
The National Consumer Voice for Quality Long-Term Care (the Consumer Voice) is hosting a two-part webinar series designed to give advocates, ombudsmen, consumers, families, providers and others a deeper understanding of guardianships, financial powers of attorney and advance care planning. Participants will gain a basic understanding of these three important legal protections and how best to work with and support an individual who has a guardian or agent. Suggestions and approaches for handling challenging situations will also be covered.
The series is designed for both beginners and those with advanced knowledge!
Series Topics and Dates:
- Guardianship, Financial Powers of Attorney and Advance Care Planning: What You Need to Know (Beginner/Refresher) - March 13, 2012; 3:00 - 4:30pm ET
Three national experts from the ABA Commission on Law and Aging will provide an overview of guardianship, financial powers of attorney, and advance care planning. For each of these topics, speakers will present the fundamentals, explain the individual’s rights, and discuss the roles and responsibilities of guardians, agents, nursing home or assisted living providers and staff, ombudsmen, and consumer advocates.
- Guardianship, Financial Powers of Attorney and Advance Care Planning: Taking it to the Next Level (Advanced) - April 4, 2012; 3:00 - 4:30pm ET
What do you do when a nursing home resident with unclear decision-making capacity disagrees with her daughter who is the agent? What happens when a guardian wants to make a decision that the resident adamantly opposes? Members of a panel representing the legal community, advocacy and providers will discuss how to approach and resolve these and other difficult situations.
- Consumer Advocates: $35 per session or $65 for the series
- Providers: $99 per session or $175 for the series
- Recording (mp3 by e-mail): $15 per session or $25 for the series
Monday, November 21, 2011
Advancing Effective Communication, Cultural Competence, and Patient- and Family-Centered Care for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community - A Field Guide
Advancing Effective Communication, Cultural Competence, and Patient- and Family-Centered Care for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community A Field Guide
A new field guide from the Joint Commission urges US hospitals to create a more welcoming, safe, and inclusive environment that contributes to improved health care quality for lesbian, gay, bisexual, and transgender (LGBT) patients and their families. The field guide features a compilation of strategies, practice examples, resources, and testimonials designed to help hospitals in their efforts to improve communication and provide more patient-centered care to their LGBT patients. The guide, Advancing Effective Communication, Cultural Competence, and Patient- and Family Centered Care for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community, was developed with support from the California Endowment and is available for free download
Wednesday, December 1, 2010
The coffin which used to contain the body of Lee Harvey Oswald is to be sold at auction in a few weeks. The man believed to have shot President John F Kennedy was interred in the pine coffin for almost 20 years. He was exhumed in 1981 as his widow wanted to verify that it was him inside the coffin, and then reburied in a new casket in the same Texas cemetery. Auction officials say bidding for the item will start at $1,000 (£640) but they expect it to go much higher. "There's just a lot of interest in Kennedy and anything to do with his assassination," said Laura Yntema, manager for Nate D Sanders auction house. Oswald was arrested about an hour after President Kennedy was shot dead in Dallas on 22 November, 1963. The suspected assassin was himself shot two days later and so was never brought to trial. There have been numerous conspiracy theories ever since about who really shot JFK and why Lee Harvey Oswald was killed. The exhumation of his body in 1981 was designed to lay to rest one of these theories - namely, that the man who was buried was a Soviet agent who had taken Oswald's identity to carry out the killing. The auction in Los Angeles also includes instruments that were used to embalm Oswald, his death certificate, an Easter card he sent to his brother, and a section of the car seat on which President Kennedy was sitting when he was shot.
Tuesday, November 30, 2010
An orderly at a Spanish retirement home has admitted killing 11 residents, reports say.ccJoan Vila, 45, said he poisoned them with bleach, an overdose of insulin or drugs at the home in the north-eastern town of Olot, Spanish media reported. He had confessed to killing three residents "to end their suffering" when he was arrested in October. He then told a judge on Tuesday that he had killed another eight, the Spanish news agency Efe reported. The confession came 10 days after a judge ordered the eight bodies exhumed as part of an investigation into suspicious deaths at the La Caritat home. Doctors first alerted police after they found burns to the mouth and throat of an 85-year-old woman who died last month. Mr Vila then confessed he had killed the woman and two others by forcing them to drink bleach. In his latest confession Mr Vila told a judge he killed another six with a mix of drugs and two from an overdose of insulin, Efe reported.
Tuesday, September 14, 2010
A BBC presenter who admitted wasting police time after claiming on air that he smothered his dying lover has been given a suspended prison sentence. Ray Gosling, 71, of Nottingham, was charged over claims he made to BBC Breakfast's Bill Turnbull in February. He was initially arrested on suspicion of murder, but charged with wasting police time after the confession was determined to be false. At Nottingham Magistrates' Court, he was handed a 90-day suspended sentence. Gosling's claim was first made in a BBC Inside Out documentary about so-called mercy killings, broadcast on 15 February.
He said: "I killed someone once. He was a young chap, he'd been my lover and he got AIDS. I picked up the pillow and smothered him until he was dead." He was interviewed on the Breakfast programme the following day and asked about his claims and again confessed to the mercy killing. He was charged with wasting police time after the Crown Prosecution Service decided there was enough evidence to "provide a realistic prospect of proving that Mr Gosling's confession was false". A BBC spokesman said: "In the light of the plea given in court today, we regret that we broadcast a claim by Ray Gosling which has effectively been withdrawn by him. Continue reading the main story at the BBCWasting police time? Seriously?
The latest edition of BIFOCAL, the e-journal of the ABA Commission on Law and Aging Is now available online Get it here.
Table of ContentsHelping States Establish POLST Programs to Honor Patients’ Wishes for Advanced Illness Care
ABA Family Law Section Committee Keeps Focus On Vulnerable Adults and Special Needs Families
Summary of Health Care Decision Statutes Enacted in 2010
Links to State-Specific Advance Directive Forms
CLE: Three (Free) Webinars on Advanced Topics in Representing Veterans with Veterans’ Benefits Claims and What Every Attorney Representing Elderly Clients Needs to Know
Recommended Reading: Residence Options for Older and Disabled Clients And the Home Visitor Manual: An Advocate’s Guide for Helping Homebound Elderly
New! Web Site Helps Consumers Choose Best Health Insurance Options
Register Now for the National Aging and Law Conference at: www.aarp.org/nalc
To have BIFOCAL delivered six times a year to your email, subscribe at www.abanet.org/aging
Thursday, August 19, 2010
Both individually and collectively, we are paying an enormous emotional and financial price for being silenced by our society's taboo against talking about death and dying. Other societies educate their members about the reality of death and the processes of dying and grieving. We do not. We are left to figure it out for ourselves, relying on doctors and funeral directors to tell us what to do once we are face to face with death. We don't know what to say, what to do, how to cope or to grieve. Most of us simply let "the experts" lead us around by the nose -- too stunned to take charge of the situation ourselves. Consider the following observations and facts about the costs we bear for this:
(1) Eighty percent of Americans do not put their personal affairs in order before they die.
(2) In 2009, Medicare paid 55 billion just for doctor and hospital bills for the last two months of patients' lives. That's more than the budget for the Department of Homeland Security or the Department of Education. And, it's been estimated that 20-30 percent of these medical expenses may have had no meaningful impact. Most of the bills are paid for by the Federal Government with few or no questions asked. ("The Cost of Dying," 60 Minutes, 8/8/1)
Saturday, May 1, 2010
Courtesy Laurie Hanson, Long, Reher & Hanson, mnelderlaw.com:
Minneapolis Star-Tribune columnist Claude Peck recently wrote about Obit Magazine, an online forum addressing issues such as life, death, and transition - through obituaries, essays, book reviews, articles, and a blog. Peck claimed it was one of the best finds on the internet. Indeed, it is! As elder law attorneys, we deal with long-term, chronic illness and death on a daily basis. This magazine does, as well…but in an entertaining and educational way. This week there is a review of the book, The Council of Dads: My Daughters, My Illness, and the Men Who Could Be Me, authored by Bruce Feiler. After Feiler was diagnosed with a rare and virulent cancer, he appointed a Council of Dads, men from different stages of his life, to fill his role for his twin daughters, then five years old. This book is about the relationships his daughters have established with these men in the year he has been treated for the cancer and lessons learned. Check out the website and the article. I signed up to get email updates and have found the articles interesting and useful. The link to Obit Magazine is available at http://www.obit-mag.com.
Tuesday, April 6, 2010
Via the BBC:
Police have arrested two women after they tried to take the body of a dead relative on to a plane at Liverpool John Lennon Airport. Staff became suspicious when they tried to check in 91-year-old Curt Willi Jarant, who was wearing sunglasses, for a flight to Berlin on Saturday. The women - his widow and step-daughter - said they thought he was asleep. hey were arrested on suspicion of failing to give notification of a death, police said. The pair, who are German nationals but live in Oldham, Greater Manchester, have been released on bail. Asked to describe her late husband, who she called Willi, Gitta Jarant said: "[He was] the best man of the world - good man.
Tuesday, March 9, 2010
Full story: http://www.gazette.com/articles/springs-94927-arizona-court.html
Tuesday, November 3, 2009
Dennis and Flora Milner, aged 83 and 81, were found dead in their home in Newbury on Sunday, police confirmed. A letter and statement saying they had "chosen to peacefully end our lives" was delivered to BBC South on Tuesday. They said they wanted to highlight the "serious human dilemma" which prevents people from legally ending their own lives with loved ones around them. Mr and Mrs Milner's daughter Chrissy said her parents had been in good health but did not want to get to a stage were they would be too ill to care for themselves. She said they had told her: "We won't be here for Christmas." Their statement, sent to the BBC and headlined "a personal critical self assessment", appeared to be signed by both husband and wife.
It read: "We have been fortunate to have lived through and enjoyed 80 plus years of a happy, loving and exciting life.It would be impossible to thank all the people and organisations which every day, without fail, have contributed to our lifespan.There's just one outstanding [group] which we think everyone would go along with, the medical profession and the NHS in which they serve. They have usefully extended our lives by at least 25-30 years. We leave this life with just one serious and disappointing criticism of our society. Today we have been denied what we believe to be our basic human right - to terminate our own lives, in our own home, at our own choosing, with our loved ones around us, without anyone having to face any legal possibilities or harassment."
Friday, October 30, 2009
The world's largest retailer, Wal-Mart, now plans to hold on to customers even after they die - by selling coffins. Prices range from a "Mom" or "Dad Remembered" steel coffin for $895 (£540), to a bronze model at $2,899. The retailer is allowing customers to plan ahead by paying for the caskets over 12 months for no interest. They can be dispatched within 48 hours. A spokesman for the supermarket giant, Ravi Jariwala, said the new coffin range was "a limited beta test to understand customer response". The retailer is offering caskets at prices that undercut many funeral homes, say correspondents. But an industry spokesman said it was not unduly concerned about Wal-Mart's move, because he said the firm could not offer bereaved families the human touch.
Source: BBC, http://news.bbc.co.uk/2/hi/business/8333198.stm
Costco was just so wrong!!! http://www.businessweek.com/bwdaily/dnflash/aug2004/nf20040818_7779_db016.htm
Saturday, May 23, 2009
A 66-year-old US woman with advanced cancer has become the first person to die under a new aid in dying law in Washington State. The woman, Linda Fleming, died on Thursday night after taking drugs prescribed by her doctor.The "Death with Dignity" law was approved by 60% of Washington State voters in a referendum last year. It is based on a law in neighboring Oregon, where 400 people have chosen to die over the last 12 years. The advocacy group Compassion and Choices of Washington said Ms Fleming died with her family, her dog and her physician at her side. In a statement, Ms Fleming, who lived in the town of Sequim, said: "I had only recently learned to live in the world as I had always wanted to, and now I will no longer be here. "The pain became unbearable, and it was only going to get worse. I am a very spiritual person, and it was very important to me to be conscious, clear-minded and alert at the time of my death." She was diagnosed with pancreatic cancer last month.
Source: BBC, http://news.bbc.co.uk/2/hi/americas/8064559.stm
Email from Margaret Dore re the above post:
Re: "First WA Death with Dignity patient exercises her
I am an attorney in Washington State, who has studied our
new Death with Dignity Act, which was enacted via a voter's
initiative. During the election, proponents touted it as providing
"choice" for end of life decisions. A glossy brochure declared:
Only the patient - and no one else - may administer
the [lethal dose].
The Act, however, doesn't say this - anywhere. The Act also
contains coercive provisions. For example, it allows an heir who
will benefit from the patient's death, to help the patient sign up
for the lethal dose. See: Margaret Dore, "'Death with Dignity':
What Do We Advise our Clients?" at
Contrary to proponents, the patient's control over the
"time, place and manner" of his death, is an illusion. "Death with
dignity" is, instead, a recipe for elder abuse and worse.
You may also be interested in my brief analyzing the Oregon
Death with Dignity
Act. http://www.margaretdore.com/pdf/amicus_take_3_001.pdf. If you
would like more information, please let me know.
Thursday, May 21, 2009