Sunday, July 20, 2014
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, July 18, 2014
The story of Kitty Lee, age 75, and her beloved border collie Zoe, age 18, captures so much that can be poignant about aging. From the Albuquerque Journal, in a story by Joline Gutierrez Krueger:
"For months, Lee knew it was time to say goodbye to Zoe, her constant companion since 1999. The tumor had gotten so big, and Zoe had gotten so weak. Her gentle brown eyes were clouding over. She couldn’t hear. It wasn’t fair to force her to live this way just for Lee’s sake.
“She deserves better than this,” said Lee, 75. “She deserves to die with dignity.”
But dignity is hard to pay for.... Today, Lee lives on a monthly $800 Social Security check, just enough to pay for groceries, bills and rent for the broken-down RV parked in a West Central [Albuquerque, New Mexico] trailer court."
The costs and procedures for euthanasia for the suffering collie were more than Lee could handle alone. Plus, she did not want to simply abandon the decision to others; she wanted to be part of a safe and humane process for Zoe. The Albuquerque Journal writer's first news story resulted in donations and offers of assistance. Eventually, Lee's collie "died peacefully and with dignity in her woman's arms."
I suspect if you have read this far, you too might have a tear in your eye. The full story is here.
Tuesday, July 15, 2014
Representatives from some 16 countries participated in the 2014 International Elder Law and Policy Conference at John Marshall Law School on July 10-11. There was impressive participation -- especially given the distances for travel to attend the short and intense conference -- by faculty members from Australia, including Dean Wendy Lacey from the University of South Australia School of Law, Associate Dean Meredith Blake from the University of Western Australia School of Law, Lisa Barry from Macquarie University Law School in Australia, and Eileen Webb from the University of Western Australia School of Law.
I learned that there is a strong research network on law and ageing topics in Australia, ARNLA. Many of the issues they are addressing mirror issues recognized elsewhere in the world, even as the laws and standards may differ between the countries. Several of the Australian participants reported on recent research or works in progress.
For example, Meredith Blake addressed the challenge of using advance directives to honor the directions or wishes of a principal after the individual develops dementia. She pointed out that unlike some U.S. states that require agents to follow the principal's known wishes or directions, in Queensland the use of a "best interest" standard for agents acting under health care directives may frustrate the wishes of the principal. Using a detailed and realistic hypothetical to illustrate concerns, Professor Blake urged adoption of a more flexible approach.
Eileen Webb's presentation focused on how property law concepts in Australia may help or hinder efforts to respond to instances of potential financial abuse, as where an older individual allows or directs transfer of property interests to other family members or unrelated individuals "without adequate protection or for consideration which is illusory."
Professor Webb introduced me to a new but useful label,"family accommodation arrangements," which she reported was one of the most frequent sources of concern for elder abuse in Victoria. I was particularly impressed by graphs she created to illustrate and organize potentially applicable legal theories, including fraud, undue influence, estoppel, failed joint ventures, common intention and contributions to purchase price for third parties. The theory of law used to pursue a claim may affect the relief available. Professor Webb urged adoption of specific legislation in Australia to better address the potential for abuse through property transfers.
Wednesday, July 9, 2014
We've previously posted advance information about the International Elder Law and Policy Conference that will be hosted this week -- July 10-11 -- in Chicago. The organizers are John Marshall Law School; Roosevelt University, College of of Arts and Sciences; and East China University of Political Science and Law.
The conference will have an interesting format, combining presentations from a range of professionals with experience working with or for older persons, and working sessions to draft a model "International Bill of Rights for Elderly Persons, in parallel with U.N. sessions on ageing.
As an example of the breadth of participation and coverage at this conference, my session on Thursday focuses on "Health Care, Caregving for Older Persons and Legal Decision Making," and will be co-moderated with Professor Walter Kendall at John Marshall. The panel includes the following topics and speakers:
- "Dementia and Planning Death: The Challenge for Advance Directives," by Meredith Blake at University of Western Austalia Law School
- "Social Change and Its Apparent Effect on Senior Care Services: A Comparative Study of Post-Soviet Union Russia and the U.S.," by Amy Delaney, partner at Delaney, Delany & Voorn in Illinois, and Alina Risser, a lawyer from Russia, currently studying law at John Marshall;
- "Rights are Not Good for Older Persons in Long-Term Care Settings? Experience from the European Union," by Nena Georgantzi, Legal Officer for AGE Platform Europe;
- "Bridging the Caregiver Gap: Does Technology Provde an Ethically and Legally Viable Answer?," by Donna Harkness, University of Memphis School of Law;
- "The Insufficiency of Spiritual Support of Urban Elders in China and Suggestions on Legislation," by Jun Li, East China University of Political Science and Law.
We'll report more after the events on Thursday and Friday!
July 9, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 8, 2014
If one looks at the Uniform Law Commission website, it appears that slow but steady progress is being made by states in adopting recommended legislation governing Powers of Attorney (POAs). The ULC recommendation reflected more than four years of research and drafting, culminating in a detailed proposal for POAs issued in 2006. According to the website, 16 states have enacted the uniform law, with an additional four states, Connecticut, Mississippi, Washington, and my own home state, Pennsylvania, considering adoption in 2014. The ULC's recommendations were a deliberate attempt 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 of financial abuse of incapacitated individuals."
On July 3 last week, Pennsylvania's Governor Corbett signed legislation, now designated as Act 95 of 2014, making significant changes to the existing law governing POAs in Pennsylvania. However, the passage of this law also demonstrates how so-called "uniform" laws may be less than uniform from state-to-state in terms of their actual requirements, and I tend to wonder whether other states have also enacted some variation on the ULC's recommendation.
Pennsylvania Act 95 of 2014 (available as HB 1429 here) took more than 3 years of drafting, redrafting, hearings, negotiations, and compromises to accomplish. The spur for adoption was a court decision invalidating transactions executed in reliance on a "void" power of attorney, one purportedly "signed" with an X by a woman while hospitalized. The majority decision put the financial impact on the party accepting the POA, without regard to whether it was using good faith in relying on a document that may appear valid on its face. After that decision, many Pennsylvania retirement plan administrators, banks or other financial institutions were reluctant to honor POAs, fearing they could become the guarantor of misused authority. See Vine v. Commonwealth of Pennsylvania State Employees Retirement Board, 9 A.3d 1150 (Pa. 2010).
PA Act 95 of 2014 addresses the "Vine" question by clarifying a grant of immunity for any person who in "good faith accepts a power of attorney without actual knowledge" of voidness or other invalidity. But Act 95 also mandates certain execution protocols, including:
- for most but not all POAs, requiring the principal's signature, mark or third-party signature to occur in front of two adult witnesses;
- requiring the principal to acknowledge his or her signature before a notary public or other individual authorized by law to take acknowledgments;
- continuing the requirement that principals must sign "notice" forms, but now with enhanced warnings about the significance of POAs, including the recommendation that "before signing this document, you should seek the advice of an attorney at law to make sure you understand it;"
- continuing the requirement that agents must sign an acknowledgement of certain responsibilities, now including an obligation to "act in accordance with the principal's reasonable expectations."
Each of these execution requirements, although certainly permitted by ULC's proposal (and perhaps also entirely consistent with the ULC's concern about the potential for financial abuse), is greater than what is required by the Uniform Law on Powers of Attorney.
At the same time, the Uniform Power of Attorney Act includes potential remedies for abuses of POAs not addressed by old or new law in Pennsylvania, including Section 116 that would grant spouses, parents, descendants and presumptive heirs the right to seek judicial review of an agent's conduct. One open question in Pennsylvania is whether wider standing to challenge suspected abuse is necessary.
One takeaway message from the history of more than 8 years of consideration by states of the Uniform Law on POAs, and more than 3 years of consideration in Pennsylvania about how or whether to adopt some or all of UCL's specific approach, is that achieving uniformity of state civil laws is not an easy task. That makes me even more appreciative of the effort and comparative "ease" of adoption of early efforts at uniformity, such as the uniform commercial code and the recognition that interstate sales transactions would benefit from consistency.
Portions of Pennsylvania Act 95 of 2014, including the grant of immunity for good faith reliance on POAs by third-parties, are immediately effective, while other portions of the law take effect on January 1, 2015. The Pennsylvania Elder Law Institute on July 24-25 in Philadelphia will have several sessions addressing the effect of the new law.
ElderLawGuy Jeff Marshall also has a great overview of the new Pennsylvania law on his blog. Hat tip also goes to Pennsylvania attorney Bob Gerhard for keeping Pennsylvania practitioners up-to-date on the bill numbers and enactment details.
July 8, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 14, 2014
It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly complicating this little task is the fact that I count both authors as friends and mentors.
The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.") And as with fine wine, this book, now its 6th edition, becomes more valuable with age. This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series. Presented in the book are introductions to the following core topics:
- Ethical Considerations in Dealing with Older Clients
- Health Care Decision Making
- Medicare and Medigap
- Long-Term Care Insurance
- Nursing Homes, Board and Care Homes, and Assisted Living Facilities
- Housing Alternatives & Options (including Reverse Mortgages)
- Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
- Social Security Benefits
- Supplemental Security Income
- Veterans' Benefits
- Pension Plans
- Age Discrimination in Employment
- Elder Abuse and Neglect
The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like." Curiously, they don't mention potential clients, including family members of older persons. I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation. This book is a very good starting place.
What's missing from the overview? Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning. Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down.
Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal. Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options. Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania). See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.
Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?
May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Friday, May 9, 2014
The April 2014 issue of the American Bar Association's Bifocal publication is now available. Current articles include:
- Will Your Health Care Advance Directive Be There When You Need It?
- A Guardian's Health Care Decision-Making Authority: Statutory Restrictions
- Palm Beach Guardianship Monitoring Program Offers Innovative Model
- Attorneys Representing Veterans: Opportunities and Challenges
- Don't Let Congress Go Another Year Without Funding the Elder Justice Act
By the way, while most Bifocal articles are written by practicing attorneys, American Univesity Washington College of Law student, Karna Sandler, is the author of the article on how state laws may affect a guardian's health care authority. Karna's an intern at the Commission on Law and Aging. Way to go, Karna!
In addtion, the issue provides details about AARP Foundation Scholarships to assist individuals in attending the 2014 National Aging and Law Conference to be held in Washington D.C. on October 16-17. Deadline for the scholarship applications is June 15, 2014.
Monday, April 21, 2014
Here's a sampling of recently published articles from the Social Science Research Network (SSRN) falling loosely under the heading of "Elder Law" as well as other classifications:
From our Law Prof Blogging colleague Gerry Beyer, "Who Said Learning Trusts & Estates Can't Be Fun?" The abstract alone is inspiring for those of us who teach in this field:
"From even before their first day of law school, Texas Tech University School of Law students have the opportunity to appreciate the importance of the estate planning area and to understand that it can be both an enjoyable and rewarding area of law in which to practice. During orientation, which takes place the week before classes start, new students participate in full-day programs centered on a particular area of practice either of their own choosing or assigned by the administration. For the 2013 entering class, I was in charge of two full-day Estate Planning Tracks with a total of aproximately thirty-five entering students.
As their legal education continues, students have additional exposure, some mandatory and some optional, to estate planning topics. In my first year required Property course, I spend several days reviewing the basic principles of intestate succession and wills. Texas Tech then requires all students to complete a four-credit introductory course entitled Wills and Trusts as a condition of graduation during their second or third year. Students desiring a more sophisticated treatment may take courses such as Estate Planning, Texas Estate Administration, Guardianship, Estate and Gift Tax, Elder Law, and Marital Property. Students may also compete for a coveted position as an editor for the Estate Planning and Community Property Law Journal that Texas Tech publishes.
This Article reveals my basic teaching philosophy and the general pedagogical techniques I employ to make Trusts and Estates topics both fun and relevant. I will then share with you the specific tools I use when teaching the introductory course as well as the advanced courses such as Estate Planning and Texas Estate Administration. It is my hope that you may be able to gain insight from my approach to enhance your own teaching and the experience you provide to your students."
From Northern Illinois Law Librarian Sharon Nelson, a thoughtful bibliography of articles drawing lines between mistreatment of animals and the potential for family member abuse or neglect. I have to say that I never thought about this connection before, but it does ring true for a possibly related phenomenon I observed when we were interviewing caregivers for an aging family member. If candidates were nervous around our completely benign pooches, they rarely coped well with the not-so-benign family member. Nelson sumarizes her article, titled "The Connection Between Animal Abuse and Family Violence:"
"This Selected Annotated Bibliography assembles legal and social literature that examines the link between domestic violence and animal abuse. Drawing from an ever-growing body of written works dedicated to the issue, the Bibliography presents the works that are most informative and useful to the legal community. These include case studies, current and proposed legislation, and social services guides that address the occurrence of and response to the animal cruelty-family violence correlation. In doing so, the Bibliography creates a resource that will prove helpful to a variety of legal practitioners, law makers, and professionals within the criminal justice system, and will serve as a tool to promote further understanding of the patterns of abuse that often concurrently victimize both humans and animals."
And from Canadian J.D. candidate Mathew Ponsford, an article about implications of advance care decision-making issues and legislation in Ottowa, "A Discussion of Conflict Resolution Processes Used in End-of-Life Care Disputes Between Families and Healthcare Providers in Canada." The abstract begins:
"Conflict at the end-of-life, particularly between families and healthcare providers, involves many complex factors: differing opinions surrounding a patient’s prognosis, cultural differences, moral values and religious beliefs, associated costs, internal family dynamics, and of course, legal ramifications. Bill-52 (2013): An Act Respecting End-of-Life Care, introduced in Québec's National Assembly, will have far-reaching implications for healthcare decision-making for families, healthcare providers, religious groups, and others. Here, Bill-52 is used as the backdrop to examining the often neglected stories of disputes arising between families and healthcare providers, and the communication strategies, negotiation and mediation processes which result amidst an often stressful, costly, and time-consuming ordeal. Numerous conflict resolution processes are discussed, but the Consent and Capacity Board, regulated through Ontario's Health Care Consent Act (HCCA), is the primary focus. The importance of empathy and cultural understanding is also analyzed, as well as the challenges of cross-cultural conflict, including sensitivities toward Canada's First Nations peoples."
Sunday, April 13, 2014
ElderLawGuy Jeff Marshall succinctly discusses four critical issues that individuals and families should consider when using Powers of Attorney in estate and incapacity planning. Here's the link to Jeff's "Powers of Attorney: Things You Need to Know."
Friday, April 4, 2014
A record number of elderly people are completing living wills to guide end-of-life medical treatments – up from 47 percent in 2000 to 72 percent in 2010 – according to new research from the University of Michigan and the Veterans Affairs Ann Arbor Healthcare System. However, even with nearly double the number of people completing advance directives – which may specify preferences for surrogate decision makers and life-support treatment – there was little difference in hospitalization rates or deaths in the hospital, says the study that appears in the Journal of the American Geriatrics Society.
"Given the aging population, there's been a great push to encourage more people to complete advance directives with the idea that this may increase hospice care and reduce hospitalization for patients during the last six months of life," says lead author and palliative care specialist Maria Silveira, M.D., M.A., M.P.H, researcher with the VA Ann Arbor Healthcare System and assistant professor in the Department of Internal Medicine at the U-M Medical School.
"We found that while there's an upward trend in creating these documents, it didn't have much bearing at all on hospitalization rates over the decade. Indeed, hospitalization rates increased during the decade, rather than go down. These are really devices that ensure people's preferences get respected, not devices that can control whether a person chooses to be hospitalized before death."
Silveira says the increase in advanced directives indicates that people are less timid about broaching end-of-life planning and talking about death with loved ones.
Tuesday, April 1, 2014
Washington Post writer Michelle Singletary hosts a column called The Color of Money. Recently she wrote about the importance of talking with your adult children about your preferences and finances "long before a health crisis forces the issue" that may put them in the position of caregivers. At the same time, she acknowledges this conversation isn't easy to start.
For assistance she suggests the book "The Other Talk: A Guide to Talking With Your Adult Children About the Rest of You Life," by author Tim Prosch. To further the conversation, Singletary and Prosch are hosting an on-line dicussion about "The Other Talk" on Thursday, April 24 at noon, Eastern time. Here's the link to the Washington Post forum for the program.
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.
Interested in $25 worth of free resources?
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.
NHDD buttons and stickers = more visibility for your good efforts:
If you're thinking about doing a community event, we want to help ensure it is a success, so we're again offering you a limited number of free "Five Wishes - Have You Signed Yours?" buttons and stickers. Just send us a message here, and we'll get the buttons and stickers to you.
NHDD Five Wishes
Five Wishes can deliver your message. Don't miss the chance to customize the back cover of Five Wishes with your organization's logo and message. To receive your customized documents in time for NHDD, please complete your request by March 14 (that's the end of next week!).
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.