Sunday, September 13, 2015
The NY Times ran a story that on September 11, 2015, the California legislature passed a bill that provides for physician-aided dying for folks with terminal illnesses. California Legislature Approves Assisted Suicide notes that if Governor Brown signs the bill, California will become the 4th state with a statute allowing PAD (physician-aided dying). The other three are Washington, Oregon, and Vermont. (It is allowed in Montana pursuant to a state supreme court decision. A New Mexico appellate court recently overturned a trial court opinion that allowed it).
The story notes that the California legislation is based on Oregon's, but with some clear differences:
The California law would expire after 10 years and have to be reapproved, and doctors would have to consult in private with the patient desiring to die, as part of an effort to ensure that no one would be coerced to end his or her life — a primary concern for opponents of the law.
You may recall that this is not the first attempt to approve PAD in California. "Previous bills to legalize assisted suicide have failed in California, including one this year, when pressure from the Roman Catholic Church helped stall a similar measure in the Assembly. (The bill was resurrected for a special session, where it could bypass Assembly committees.)"
Sunday, August 16, 2015
The National Aging & Law Conference is scheduled for October 29-30, 2015 at the Hilton Arlington, Arlington, VA. A number of ABA commissions and divisions are sponsors of this conference including the Commission on Legal Problems of the Elderly, the Coordinating Committee on Veterans Benefits & Services, the Senior Lawyers Division and the Real Property, Trust & Estate Law Section. The website describes the conference
The 2015 National Aging and Law Conference (NALC) will bring together substantive law, policy, and legal service development and delivery practitioners from across the country. The program will include sessions on Medicare, Medicaid, guardianship, elder abuse, legal ethics, legal service program development and delivery, consumer law, income security, and other issues.
The 2015 National Aging and Law Conference marks the second year that this conference has been hosted by the American Bar Association. This year’s agenda will include 24 workshops and 4 plenary sessions on key topics in health care, income security, elder abuse, alternatives to guardianship, consumer law, and legal service development and delivery. The focus of the agenda is on issues impacting law to moderate income Americans age 60 and over and the front line advocates that serve them.
August 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Social Security, Veterans | Permalink | Comments (0)
Friday, August 14, 2015
In a recent article for the University of Baltimore Law Review, John C. Craft, a clinical professor at Faulkner University Law, draws upon the history of legislation governing powers of attorney to advocate a return to effectiveness of the POA being conditioned by an event, such as proof of incapacity. Professor Craft, who is the director of his law school's Elder Law Clinic, writes:
Section 109 in the Uniform Power of Attorney Act should be revised making springing effectiveness of an agent's powers the default rule. Springing powers of attorney provide a type of protection that may actually prevent power of attorney abuse. The current protective provisions in the UPOAA focus in large part on the types of abuse that occur after an agent has begun acting for the principal. As opposed to arguably ineffective “harm rules” intended to punish an unscrupulous agent, springing powers of attorney are a type of “power rule” intended to limit an agent's “ability to accumulate power . . . in the first place.” The event triggering an agent's accumulation of power -- the principal's incapacity -- may never occur. A financial institution may prevent an unscrupulous agent from activating his or her power and conducting an abusive transaction simply by asking for proof that the principal is incapacitated. In addition, making springing effectiveness the standard serves the goal of enhancing a principal's autonomy.
For his complete analysis, read Preventing Exploitation and Preserving Autonomy: Making Springing Powers of Attorney the Standard.
August 14, 2015 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, August 6, 2015
From a recent NPR piece on Knowing How Doctors Die Can Change End-of-Life Discussions:
Dr. Kendra Fleagle Gorlitsky recalls the anguish she felt performing CPR on elderly, terminally ill patients. It looks nothing like what we see on TV. In real life, ribs often break and few survive the ordeal.
"I felt like I was beating up people at the end of their life," she says. "I would be doing the CPR with tears coming down sometimes, and saying, 'I'm sorry, I'm sorry, goodbye.' Because I knew that it very likely not going to be successful. It just seemed a terrible way to end someone's life."
Gorlitsky now teaches medicine at the University of Southern California and says these early clinical experiences have stayed with her. Gorlitsky wants something different for herself and for her loved ones. And most other doctors do too: A Stanford University study shows almost 90 percent of doctors would forgo resuscitation and aggressive treatment if facing a terminal illness.
This selection also reminded me about an important essay from a few years ago, How Doctors Die, by Dr. Ken Murray. Hat tip to my Dickinson Law colleague Professor Laurel Terry for sending me this NPR piece.
Friday, July 31, 2015
Which is More Terrifying? "Dying Early" or "Living Long" (and Doing Financial Planning Necessary for the Latter)?
The New York Times recently carried a column that probably hit home with many -- if, that is, one could bring oneself to read it. While some people keep postponing "the conversation" discussion about how they want to die, there is plenty of evidence many people are also avoidant of conversations about financial planning for a long life.
Educating consumers to be better purchasers seems a sensible idea, but an example from recent history illustrates the problem with that. For a long time, the simple investment advice given to consumers has been “buy an index fund.” Index funds are such standardized products — mirroring the Standard & Poor’s 500-stock index does not require much management — that just about all of them were initially low cost while offering wonderful diversification.
Consumers have been buying index funds, and the market has responded by providing hundreds of them. Nearly all E.T.F.s are index funds.
But the market has also responded by charging high fees for this standardized product. In 2004, Ali Hortacsu and Chad Syverson, economists at the University of Chicago, found that index funds had as much variability in fees as their more labor-intensive actively managed counterparts. And these fees are nothing to be scoffed at — paying 1 percent more every single year in fees can compound over a lifetime to noticeably lower returns.
For more on the problem with financial advice -- with encouragement to "face up to something [you too] may have been dreading," read Why Investing Is So Complicated, and How to Make it Simpler, by Sendhil Mullainathan.
My thanks to Prof. Laurel Terry and Jack Bennett, Esq. for sharing this column.
Thursday, July 16, 2015
Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg.
- "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
- How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
- Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
- LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
- Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
- Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
- A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)
There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).
I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!
July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Friday, July 10, 2015
On July 8, 2015, the Centers for Medicare and Medicaid Services (CMS) announced the proposed 2016 Physician Fee Schedule that includes a provision for paying doctors to talk to patients about end of life care. Referenced in the proposed rule as advance care planning, comments are due by 5 p.m. on September 8, 2015. The proposed rule will appear in the Federal Register on July 15, 2015. For more information see Kaiser Health News (KHN) Medicare Proposes Paying Doctors For End-Of-Life Discussions.
Tuesday, July 7, 2015
Many have written with great sensitivity and candor about attending the death of a loved one, including a parent. Ellen Goodman had a lovely op-ed recently, How to Talk About Dying, in the New York Times. But more important even than her personal journey with her own parents, was how she and others have used their mutual experiences and concerns to start The Conversation Project.
As background, Ms. Goodman writes:
When my mother died from heart failure and dementia, I began to talk with others. It was extraordinary. Everyone seemed to have a piercing memory of a good death or a hard death. Some of these stories had been kept below the surface for decades, and yet were as deep and vivid as if they’d just happened.
Too many people we love had not died in the way they would choose. Too many survivors were left feeling depressed, guilty, uncertain whether they’d done the right thing.
With these experiences in common, Ms. Goodman and others established a nonprofit and a website, and they offer a "Conversation Starter Kit" for how to begin -- and continue -- thinking about what you want and how to share personal values and choices with family members. The kit is free, downloadable, and you can take notes and tailor the plan easily.
Many of my own friends and working colleagues have stories to share about "end of life" decisions with their parents. (Perhaps because I teach and write about aging, I get more than the average number of opportunities to hear from a lot of people about how well things are going on the homefront....) It seems like a "conversation about the conversation," shared among friendship groups, or workout-groups, or workplace groups, might facilitate using the starter kit and working on the more personal family conversations.
Thanks to Professor Laurel Terry for sharing these links!
Wednesday, July 1, 2015
From the June 22 issue of The New Yorker magazine, an interesting, thorough -- and ultimately devastating -- account of recent developments in "death with dignity" movements around the world. The article introduced me to Wim Distelmans, described as "an oncologist and professor of palliative medicine at Free University of Brussels," and "recognized as a leading proponent" of a 2002 Belgium law "that permits euthanasia for patients who have an incurable illness that causes them unbearable physical or mental suffering."
In The Death Treatment, author Rachel Aviv uses the diary-based history of a 60+ year-old woman who struggled with depression, eventually losing her levensperspectief, a Dutch word "that refers to the sense that there is something to live for," to illuminate questions about the scope of any appropriate limits on self-directed death. The article makes clear that "lawful" self-directed death can have long-range consequences for surviving family members, drawing upon a son's challenge to permissible euthanasia in Belgium as the evidence. A very worthwhile, but not easy, read.
Friday, May 22, 2015
Professor Rebecca Dresser has written a column on "right to try" laws. "Right to Try" Laws: The Gap between Experts and Advocates was published in the May-June 2015 Hastings Center Report. The abstract for the column provides
The year 2014 brought a new development in the bioethics “laboratory of the states.” Five states adopted “right to try” laws intended to promote terminally ill patients’ access to investigational drugs. Many more state legislatures are now considering such laws. The campaign for right to try laws is the latest move in an ongoing effort to give seriously ill patients access to drugs whose safety and effectiveness remain largely unknown. Although scientists and policy-makers oppose the right to try approach, it has proven quite popular among state legislators and the public.
Monday, May 11, 2015
Last week I was visiting in Ireland, and specifically in Belfast, Northern Ireland, where I was giving a workshop on comparative contract law for students at Queen's University Belfast in its new J.D program. When I visit the city, I always try to save a day for a "dander" around the town, which is wonderfully walkable.
St. George's Market is a favorite spot -- and in fact last year while I was visiting, Queen Elizabeth was there too, a definite surprise, if you know the history of politics in this city.
There is an interesting collection of stalls, that change a bit with the season and the day.
Tuesday, May 5, 2015
Here we go again. Another hard look at why a significant percentage of the public has not signed some form of advanced directive. In April 2015, GAO issued Advance Directives: Information on Federal Oversight, Provider Implementation, and Prevalence, its response to requests made by Senators Bill Nelson (D-Fla), Johnny Isakson (R-Ga), and Mark Warner (D-Va) who were inquiring into the role of the Centers for Medicare and Medicaid Services (CMS) in overseeing providers, including hospitals and nursing homes, that are mandated by law to maintain written procedures and provide information about advance directives.
Perhaps it is just me, but whenever legislators raise this topic, it seems to me the not-so-subtle underlying message is "why aren't people agreeing in writing to forego aggressive health care as they near the end of life so that we can save more money on health care?"
In any event, the report:
- documents current practices for offering living wills, health care powers of attorney, and various alternatives such as DNR and POLST forms (including the potential for some confusion among staff members of health care providers about "who" should be handling the education and signing process),
- refers to a major Institute on Medicine study (Dying in America, 2015) on a similar topic, and
- concludes that there is no "single" point of entry for execution of advanced directives.
As the GAO team observes, "[t]herefore, a comprehensive approach to end-of-life care, rather than any one document, such as an advance directive, helps to ensure that medical treatment given at the end of life is consistent with an individual’s preferences."
Hat tip to Karen Miller, Esq., in Florida for the link to the latest study and report.
May 5, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1) | TrackBack (0)
Monday, April 27, 2015
On April 24, 2015, Iowa's Governor signed SF 306 into law, amending Iowa's Guardianship Law to recognize an express right of adult wards to "communication, visitation, or interaction with other persons." The law's effective date is July 1, 2015.
The law further provides that a court shall deny such rights "only upon a showing of good cause by the guardian." In the absence of an ability to give "express consent to such communication, visitation or interaction with a person due to a physical or mental condition, consent of an adult ward may be presumed by a guardian or a court based on an adult ward's prior relationship with such person."
This is an interesting law, especially coming on the heels of the Henry Rayhons trial in Iowa, even though there appears to be no direct correlation. The new provision does not, for example, define "interaction."
According to news reports, Kerri Kasem, the daughter of radio D.J. Casey Kasem, was present at the ceremony and lobbied for the bill after her late father was moved from his nursing home in California, first to Nevada and then to Washington without his children's knowledge or consent:
“This is a silent epidemic,” she said. “There are so many abuses of guardianships and so many abuses of caretakers.”
April 27, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, March 22, 2015
The New York Times ran an editorial on March 14, 2015 regarding efforts in states to pass aid in dying legislation. Offering a Choice to the Terminally Ill reports that DC & 15 states are considering such legislation. The editorial describes two recent cases, reviews the opposition, and considers the safeguards provided in the Oregon statute as an example. It also describes situations where doctors provide patients with lethal dosages of medications despite laws to the contrary, noting that "these unregulated practices put patients and doctors on dangerous terrain." Referencing the case of radio host watching her husband who had stopped eating over a period of days, the editorial board says about that case "[h]er inability to help him die humanely is a situation no spouse should have to face."
Friday, February 27, 2015
Check out Volume 48, Issue 1 of the Indiana Law Review which contains articles from the 2013 Program on Law & State Government Fellowship Symposium: State Governments Face the Realities of Aging Populations. Three articles are included from the symposium, all of which are available on-line. The articles include Introduction: Governing Choices in the Face of a Generational Storm, Aging Populations and Physician Aid in Dying: The Evolution of State Government Policy, and What the Future of Aging Means to All of Us: An Era of Possibilities.
Wednesday, January 21, 2015
A new acronym, VSED, is emerging in discussions of end-of-life decision making. It refers to Voluntarily Stopping Eating and Drinking. However, what happens when such a plan is combined with increasing dementia?
As addressed in Paula Span's thoughtful piece for The New York Times' "The New Old Age," it may not be possible to ensure such a plan will be honored, at least not under the existing law of most states. Consider the following example:
"Like many such documents, [Mr. Medalie's Advance Directive] declares that if he is terminally ill, he declines cardiopulmonary resuscitation, a ventilator and a feeding tube. But Mr. Medalie’s directive also specifies something more unusual: If he develops Alzheimer’s disease or another form of dementia, he refuses 'ordinary means of nutrition and hydration.' A retired lawyer with a proclivity for precision, he has listed 10 triggering conditions, including 'I cannot recognize my loved ones' and 'I cannot articulate coherent thoughts and sentences.'
If any three such disabilities persist for several weeks, he wants his health care proxy — his wife, Beth Lowd — to ensure that nobody tries to keep him alive by spoon-feeding or offering him liquids. VSED, short for 'voluntarily stopping eating and drinking,' is not unheard-of as an end-of-life strategy, typically used by older adults who hope to hasten their decline from terminal conditions. But now ethicists, lawyers and older adults themselves have begun a quiet debate about whether people who develop dementia can use VSED to end their lives by including such instructions in an advance directive...."
For more, continue reading "Complexities of Choosing End Game for Dementia." Thanks to Elder Law Attorney Morris Klein for sharing this good article.
Wednesday, January 14, 2015
The New York Times ran an article about the "trend" among states to adopt "right to try" drugs, which allow critically ill patients to try drugs that have not yet been approved by the FDA. Patients Seek 'Right to Try" New Drugs reviews the issues presented by "right to try" laws. These "right to try" laws have been adopted in several states, according to the article, including Arizona, Colorado, Louisiana, Missouri and Michigan. What is truly the goal of "right to try" laws? Get unapproved drugs into the hands of those who need them, or something more?
According to the article, the laws are really about autonomy and control over one's final days.
The laws do not seem to have helped anyone obtain experimental medicine, as the drug companies are not interested in supplying unapproved medications outside the supervision of the F.D.A. But that seems almost beside the point to the Goldwater Institute, the libertarian group behind legislative efforts to pass Right to Try laws. “The goal is for terminally ill patients to have choice when it comes to end-stage disease,” said Craig Handzlik, state policy coordinator for the Goldwater Institute, based in Arizona. “Right to Try is something that will help terminally ill people all over the country.”
According to the article, 10 states are likely to take up "right to try" laws in the 2015 legislative session, with pre-filed bills in a few states so far. The article notes there are critics of such laws. The federal courts have already weighed in on "right to try" laws, with the case, Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach , 495 F.3d 695 (D.C. Cir. 2007) (cert. denied, 552 U.S. 1159 (2008)). The "right to try laws" do have some limits, which the article describes, using Colorado as an example
The Colorado law, which is similar to ones in other states, permits terminally ill patients who have exhausted their treatment options — including clinical trials — to obtain therapies that have passed at least the first of three F.D.A. investigation phases. The law does not require companies to provide the treatment, nor does it mandate that insurance companies cover it; the law also allows insurance companies to deny coverage to patients while they use drugs under investigation.
For those patients who are terminally ill, there is help under the FDA rules for them to get access to unapproved drugs. "[T]he F.D.A. created a process for granting unapproved therapies to people with exceptional need. Called the “expanded access program” or “compassionate use,” the program ... is [the] way for terminally ill people to request an unapproved therapy after they are rejected from clinical trials." Criticism of the length of the FDA approval process isn't new, and even the "expanded access program" has critics, with an illustration provided in the article.
These "right to try laws" intend to speed up the process by eliminating the FDA involvement. "Once a physician and a patient determine that treatment is the right choice — and that other options have been exhausted — the pair approach the drug company for permission."
So "right to try" laws appear to be one more effort to preserve autonomy and give terminally-ill patients more options for their care; another tool in the tool chest that includes advance directives, POLST, PAD, and DNRs, to name a few.
Thursday, November 20, 2014
The Institute of Medicine (IOM) has released a great graphic on palliative care. What Should You Know About Palliative Care? has six graphics on topics including scope, function, location, family services and the benefits of palliative care. The infographic can be downloaded or a poster can be ordered by sending an email. The webpage also includes a link to the IOM report, Dying In America
Wednesday, November 12, 2014
Professor Reid Weisbord at Rutgers Law School - Newark has a new essay that takes on a challenging, two-part question: Whether a donor's estate should be permitted to sell a decedent's body parts or organs posthumously and whether the proceeds of such sales will be distributed to the donor's heirs or beneficiaries. Professor Reid suggests an appropriate starting place is to define and provide for "anatomical intent" of the donor. Before you start imagining vendors on Craigslist or at Sothebys, be advised the essay anticipates a regulated system.
You probably want to read more about this topic, correct? See "Anatomical Intent" by Reed Weisbord from the November issue of Yale Law Review Forum.
Wednesday, November 5, 2014
Kurzweil Accelerating Intelligence (Kurzweil AI) reported in their October 21, 2014 news a story on new research, Hidden brain signatures’ of consciousness in vegetative state patients discovered. Here’s the opening paragraph “Scientists in Cambridge, England have found hidden signatures in the brains of people in a vegetative state that point to networks that could support consciousness — even when a patient appears to be unconscious and unresponsive. The study could help doctors identify patients who are aware despite being unable to communicate.”
The Kurzweil AI story includes the article’s abstract a segment of which we’ve included here
Going further, we found that metrics of alpha network efficiency also correlated with the degree of behavioural awareness. Intriguingly, some patients in behaviourally unresponsive vegetative states who demonstrated evidence of covert awareness with functional neuroimaging stood out from this trend: they had alpha networks that were remarkably well preserved and similar to those observed in the controls. Taken together, our findings inform current understanding of disorders of consciousness by highlighting the distinctive brain networks that characterise them. In the significant minority of vegetative patients who follow commands in neuroimaging tests, they point to putative network mechanisms that could support cognitive function and consciousness despite profound behavioural impairment.
Consider how these findings may be introduced in litigation where the patient is diagnosed as PVS, with one party seeking to have life-prolonging procedures removed and another objecting and seeking this test for the patient. Should we take this and other medical advances into consideration when drafting advance directives, especially instructions to our health care agents?