Sunday, October 5, 2014
I've been posting quite a bit about end of life issues. I wanted to be sure everyone saw the story in the NY Times on September 25, 2014 about one child's struggle to honor her dad's wish to die at home. Unfortunately, this isn't a new issue, and clearly one that isn't near resolution. The story, Fighting to Honor a Father’s Last Wish: To Die at Home tells the story of Joseph Andrey and his daughter's efforts "to fulfill her father’s dearest wish, the wish so common among frail, elderly people: to die at home...But it seemed as if all the forces of the health care system were against her — hospitals, nursing homes, home health agencies, insurance companies, and the shifting crosscurrents of public health care spending." On many occasions her dad had been discharged from the hospital to a SNF for rehab. This time she wanted to have him discharged to home, but was unsuccessful and her dad was transferred to a SNF, again.
The blog post illustrates the catch-22 within which Mr. Andrey and his daughter found themselves. The post also explains the recently-released Institute of Medicine report on Dying in America (we blogged about it earlier). Returning to Mr. Andrey's story, the article includes a short biography of his life (including a brief tenure as a child in Vaudeville), his wife's decline from Alzheimer's, his up close and personal...and ongoing...experience with the U.S. health care system, and ends with his final years. He had frequent stays at SNFs because of the inability to secure home health care in a system where there were financial incentives for SNFs but not the same profitability, if you will, for the home health agencies.
Despite all of his daughter's efforts, Mr. Andrey didn't die at home, but in a hospice within a hospital. If you read the entire article, by turns you will be appalled and saddened. If you assign this to your students, there are many opportunities for discussion about the U.S. health care system as well as end of life care in our country.
Friday, October 3, 2014
Yesterday I published a post on assisted dying "tourism" in Switzerland. Following up that story is another story on a related topic. Reported in the Daily Mail Online, Elderly couple to die together by assisted suicide even though they are not ill focuses on a Brussels couple in their late 80s who, despite not being terminally ill, plan to die together because they "fear loneliness if the other one dies first from natural causes" and the couple's 3 adult children have said they would be unable to care for the surviving parent when the first one died. The kids have found a doctor to help on the basis of the parents' "mental anguish constituted the unbearable suffering needed to legally justify euthanasia."
The couple has selected the date and the method of euthanasia. Although double euthanasia may seem novel, theirs will not be the first time this has occurred. However, their request has created something of a stir in the UK, according to the story. The story notes that in Brussels, evidently mental anguish is becoming a more accepted basis for a euthanasia request.
Thanks to Sushil Preet Cheema, one of my elder law concentration students, for sending me the link to this story.
Thursday, October 2, 2014
Naomi Cahn, our colleague at GW Law who frequently alerts us to interesting stories, sent me a note about this recent story from the Washington Post on suicide tourism. Tourism to Switzerland for assisted suicide is growing, often for nonfatal diseases reports on an ongoing study in Switzerland that shows an increases in tourists in the Zurich area seeking assisted suicide.
The study, on "Suicide Tourism", was reported in the Journal of Medical Ethics. The August volume contains the article about the study: Suicide tourism: a pilot study on the Swiss phenomenon. The full article requires purchase (or subscription) but the abstract of the article is available and summarizes the article:
While assisted suicide (AS) is strictly restricted in many countries, it is not clearly regulated by law in Switzerland. This imbalance leads to an influx of people—‘suicide tourists’—coming to Switzerland, mainly to the Canton of Zurich, for the sole purpose of committing suicide. Political debate regarding ‘suicide tourism’ is taking place in many countries. Swiss medicolegal experts are confronted with these cases almost daily, which prompted our scientific investigation of the phenomenon. The present study has three aims: (1) to determine selected details about AS in the study group (age, gender and country of residence of the suicide tourists, the organisation involved, the ingested substance leading to death and any diseases that were the main reason for AS); (2) to find out the countries from which suicide tourists come and to review existing laws in the top three in order to test the hypothesis that suicide tourism leads to the amendment of existing regulations in foreign countries; and (3) to compare our results with those of earlier studies in Zurich. We did a retrospective data analysis of the Zurich Institute of Legal Medicine database on AS of non-Swiss residents in the last 5 years (2008–2012), and internet research for current legislation and political debate in the three foreign countries most concerned. We analysed 611 cases from 31 countries all over the world. Non-terminal conditions such as neurological and rheumatic diseases are increasing among suicide tourists. The unique phenomenon of suicide tourism in Switzerland may indeed result in the amendment or supplementary guidelines to existing regulations in foreign countries.
The Washington Post story discusses some possibilities for individuals seeking assisted suicide when they are not terminal; traveling while they are still able and having a terminal condition but not yet in the terminal phase were two of the reasons mentioned in the story. The Post story was produced by NewScientist and is also available here.
Tourism to Switzerland for assisted suicide is growing, often for nonfatal diseases
Wednesday, September 24, 2014
In the Washington Post, Columnist Michelle Singletary warns that "Reverse Mortgages Must be Understood to Avoid Regrets." One of the points of her column is that reverse mortgages may not be the most cost-effective plan for aging.
I've begun to worry that the problem is bigger than just mortgages. I worry that too many Americans are making aging at home a fetish, rather than a plan. While heading our Elder Protection Clinic at Penn State Dickinson Law for more than ten years, I often had opportunities to work with my students and their clients on various financial issues related to aging, including reverse mortgages. While I have certainly seen reverse mortgages alleviate specific needs for older adults, I've more often seen that the struggle to stay in the home is, arguably, misguided. What the older person is really hoping for is "not to age any more than necessary." In other words, not to "need" care. Hoping is different than planning.
Some of the wisest people I've known have made "aging in place" a fluid concept, rather than "home"-based. I'm thinking of one of my long influences, Mrs. Parker, who was a salty cowgirl. She'd grown up on horses in the Southwest and married the foreman of one of the biggest cattle ranches in Arizona. One of my favorite stories was about the Parkers' honeymoon, when they rode a string of fresh horses from northern to southern Arizona, breaking the colts along the way.
When ranching was no longer a way of life, the Parkers ran a riding school. Mrs. Parker nominally taught children how to ride horses -- but really she was constantly teaching about life. How well you actually rode the horses was often incidental to her lessons.
One of the things I noticed was that Mrs. Parker planned "aging" for herself and her husband, who was several years older. She knew he was very tied to place, and so they stayed in their home, a modern, but narrow "mobile home" (a/k/a "trailer") for many years beyond what their riding school income required. After his passing, she downsized, from the trailer on 10+ acres of horse-property complete with barns, pastures and riding arenas, to an easy-care home, with a small pasture for a few "old friends."
And then she did the most amazing thing of all. She carefully chose a distant relative as the most trustworthy person from among her large circle of friends and family to serve as her "agent." Mrs. Parker granted this individual Power of Attorney, with an express paragraph authorizing her agent the power to choose a personal care home or other long-term care setting if that became necessary. Which it did. Mrs. Parker lived a very long time as a widow. On one of my last visits with her, she said, poignantly, "I think I remember that I used to know you."
Mrs. Parker's transition from phase to phase was financed by downsizing and by selling their property and her "retirement" home in an orderly way, without a loss of dignity and without a crisis.
Sunday, September 21, 2014
A more positive way perhaps to word the question might be "how old do you want to live to be?" The Atlantic ran an article that phrased it a bit differently, but still focused on at what age is long lived enough? The author, Ezekiel Emanuel, serves as Director, Clinical Bioethics Department, National Institutes of Health & chairs U. of Pa. Department of Medical Ethics & Health Policy. Why I Hope to Die at 75 appeared in the September 17, 2014 issue. Dr. Emanuel writes about his decision that 75 is his "magic number" and how others have tried to convince him that he should change his mind on this. Why 75? He explains
By the time I reach 75, I will have lived a complete life. I will have loved and been loved. My children will be grown and in the midst of their own rich lives. I will have seen my grandchildren born and beginning their lives. I will have pursued my life’s projects and made whatever contributions, important or not, I am going to make. And hopefully, I will not have too many mental and physical limitations. Dying at 75 will not be a tragedy. Indeed, I plan to have my memorial service before I die. And I don’t want any crying or wailing, but a warm gathering filled with fun reminiscences, stories of my awkwardness, and celebrations of a good life. After I die, my survivors can have their own memorial service if they want—that is not my business.
He makes it clear that he is not supporting physician-aided dying and if he lives past 75, so be it-he's not going to take steps to end his life. Where his wish comes into play is the type of health care he will consent to receiving once he hits that age. He argues that more years don't necessarily mean good years, noting that seventy is NOT the "new fifty". Although older folks may be more active or in better health, there is still a rise in disability which he points to as a reason that the focus shouldn't just be on quantity. He quotes another expert, "health care hasn’t slowed the aging process so much as it has slowed the dying process." The fact of living longer but more incapacitated holds no appeal for him.
Dr. Emanuel looks at examples of health care issues, such as stroke and dementia, using statistics and real stories to illustrate his point. Regarding Alzheimer's, after citing to statistics on the correlation between aging and dementia, he offers
[e]ven if we aren’t demented, our mental functioning deteriorates as we grow older. Age-associated declines in mental-processing speed, working and long-term memory, and problem-solving are well established. Conversely, distractibility increases. We cannot focus and stay with a project as well as we could when we were young. As we move slower with age, we also think slower.
He also discusses the correlation between age and creativity-an inverse relationship it seems--the older you are, the less creative, unless you are one of those rare individuals (we all know of someone quite famous who did something remarkably creative at an advanced age---think Grandma Moses).
As we age, to accommodate our "current selves" we constrict how we live, and as Dr. Emanuel describes, we find ourselves "aspiring to and doing less and less". Yet we each enjoy different things. This calls to mind some of the arguments we hear about the use of substituted judgment in health care/end of life decision-making. We each define a quality of life in different ways, and Dr. Emanuel recognizes that his view may be a bit harsh.
Yet, he contends, it is not about the elder individual racking up the years. There is a burden on the family to be considered, and he says "I will leave aside the very real and oppressive financial and caregiving burdens that many, if not most, adults in the so-called sandwich generation are now experiencing, caught between the care of children and parents. Our living too long places real emotional weights on our progeny."
Back to his plan when he reaches 75. As far as health care, here is his plan: to "stop getting any regular preventive tests, screenings, or interventions ... [and] accept only palliative—not curative—treatments if ... suffering pain or other disability." He makes it clear that this is his view and he respects the views of others that are contrary to his.
This article provides a wealth of topics for discussions with our students and is worthwhile reading, even though you may hold a contrary view to Dr. Emanuel.
Seems like there have been several interesting developments in the past few weeks regarding end of life decision making. Thanks again to Charlie Sabatino, Executive Director of the ABA Commission on Law & Aging. former NAELA president, national expert on end of life issues and all around great guy, for sending me an email about the series run on WNYC public radio. The station ran a 3 part series on "death beds" The first, Death Beds: Terminally Ill, But Constantly Hospitalized aired on September 8, 2014. The second, Death Beds: Too Little, Too Late for Many New Yorkers Seeking Hospice aired the next day, and the third, Death Beds: Living Wills Slowly Take Root aired on September 10, 2014.
Each includes the audio recording as well as the print story. Worth a listen!
Thursday, September 18, 2014
The Institute of Medicine of the National Academies has released a new report on end of life issues. The report, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life was released on September 17, 2014. The report brief offers an explanation of the importance of this new survey, including the sheer numbers of American elders who are living with some limitations on ADLs, chronic illness, cognitive issues and more. As well the report points to issues with the health care system, including problems in accessing care, a lack of palliative care specialists and knowledge about end of life care, and a health care system that works out of sync, with economic incentives. The brief concludes with a call for "person-centered, family-oriented approach that honors individual preferences and promotes quality of life through the end of life [as] ... a national priority." The report is "a comprehensive assessment of the knowledge gaps, structural problems, and financial disincentives that hamper delivery of optimal care and makes cross-sectoral recommendations to achieve compassionate, affordable, sustainable, and effective care for all Americans."
The website also includes a link to key findings, core components, an infographic and a quiz (5 questions) which is suitable for use in class.
Wednesday, September 17, 2014
(Thanks to Judy Stein, Executive Director for the Center for Medicare Advocacy (CMA) for sharing this).
Wednesday, September 3, 2014
We get calls of all types, on our cell phones and for those of us who still have them, our land lines. Imagine a phone call offering you counseling on end of life options. Sound far-fetched? Not so much for some. Kaiser Health News (KHN) ran a story in late August, Operator? Business, Insurer Take On End-of-Life Issues By Phone. The article describes a company "Vital Decisions... [where] [a]fter sending a letter (people rarely respond) counselors essentially cold-call to offer what they describe as “nondirected” end-of-life counseling" to those who are quite ill. The company uses social workers to make the calls, which are short (about 15 minutes). Here's what the program is designed to achieve:
to build a relationship over the phone, [with the patient] so [the patient] might be comfortable discussing his situation and his goals. Then he’ll be empowered to communicate those things with others, including his family and his doctors. He could also choose to allow the counselor to talk to his doctors or family directly. It’s paid for by insurers and federal privacy rules permit this for business purposes.
According to Vital Decision's CEO, the goal is to facilitate discussions about end of life care and empower the patient's decision-making. "The goal is for patients to receive care in those final months that aligns with what the patient wants, even if that's the most aggressive treatment available." Some are skeptical of this phone approach because of the lack of in-person interaction and the challenges to remain neutral, which is why one expert calls for "full transparency from insurers and the company to guard against bias in the sessions."
Sunday, August 31, 2014
Recently I participated in a series of roundtable discussions about end-of-life decision making and care. Community members, doctors, hospital staff and representatives of long-term care providers participated. There were several memorable moments. At one point, a former hospital employee said that it had been her job to get "living wills" signed by patients before surgery. Another administrator confessed she wished there was a Medicare billing code, so that her staff could conduct a proper discussion of living wills and similar advance directives with patients.
According to the New York Times, there may be such a billing code, at least for private insurance. From the front page of Sunday edition, "Coverage for End-of-Life Talks Gaining Ground."
"Five years after it exploded into a political conflagration over 'death panels,' the issue of paying doctors to talk to patients about end-of-life care is making a comeback, and such sessions may be covered for the 50 million Americans on Medicare as early as next year.
Bypassing the political process, private insurers have begun reimbursing doctors for these 'advance care planning' conversations as interest in them rises along with the number of aging Americans. People are living longer with illnesses, and many want more input into how they will spend their final days, including whether they want to die at home or in the hospital, and whether they want full-fledged life-sustaining treatment, just pain relief or something in between. Some states, including Colorado and Oregon, recently began covering the sessions for Medicaid patients.
But far more significant, Medicare may begin covering end-of-life discussions next year if it approves a recent request from the American Medical Association, the country’s largest association of physicians and medical students. One of the A.M.A.’s roles is to create billing codes for medical services, codes used by doctors, hospitals and insurers. It recently created codes for end-of-life conversations and submitted them to Medicare."
Thursday, August 21, 2014
Pennsylvania has had its share of tragic recent stories connected to the death of older persons under circumstances that raise a question of suicide or murder.
Sadly, New Mexico now provides another example, where an 89-year old woman was found dead in the basement of her rural ranch home in early January. Her 69- year old daughter was charged with murder -- and at first the facts seemed to fit, given the very unusual manner of death. But this week the District Attorney dropped the charges, citing the lack of DNA or fingerprints to tie the daughter to the death, as well as expert analysis concluding the mother had written both "suicide notes" explaining her choice.
The notes suggested the older woman "did not want to be a burden to others." That history has led the family, now that the charges have been dropped, to encourage wider "exploration" of options that could prevent future tragedies, especially for older adults. Albuquerque Journal writer Leslie Linthicum, who first encountered both women 24 years before while working on a story about women ranchers in New Mexico, provides a balanced, thoughtful account of this latest tragedy.
As one saying goes, "there has to be a better way," but in most states the law does not currently recognize "better" choices. We're tackling important societal issues on many fronts right now, including same-gender marriage and legalized use of marijuana. Certainly we can also do a better job with laws affecting end-of-life decisions.
Friday, August 15, 2014
"According to [Joshua Slocum, executive director for the nonprofit Funeral Consumers Alliance], most states regulate the funeral business with boards that are packed with established funeral directors. As a result, regulations tend to suppress legitimate complaints and smother new competitors. That's one of the complaints behind Heffner v. Murphy... that may end up before the U.S. Supreme Court. Plaintiff Ernest Heffner, a licensed funeral director from York [Pennsylvania] claimed that the Pennsylvania Funeral Directors Law imposes 'arbitrary, burdensome and unreasonable' restrictions on funeral businesses, including who may own funeral homes and requirement for on-site embalming rooms."
According to the ABA Journal, "the libertarian-leaning Institute for Justice has stepped in and petitioned the U.S. Supreme Court for certiorari. IJ senior attorney Jeff Rowes says the case raises legal issues central to a core mission for the institute: stopping unreasonable regulations on small businesses." The petition for certiorai was filed July 15, 2014.
For more, read "Regulated to Death: Consumer Activitists Seek Certiorari for Challenge to 'Protectionist' Funeral Laws," by Lorelei Laird.
Monday, August 11, 2014
The Washington Post recently completed a disturbing three-part series on hospice. To analyze the quality of services rendered to terminal patients, the reporters reviewed "Medicare billing records for more than 2,500 outfits, obtained an internal Medicare tally of nursing care in patients near death and reviewed complaint records at hundreds of hospices." The Post tracks data pointing to staff shortages, lack of coordination in care, failure to provide sustained assistance during critical periods, and the potential for Medicare to incentivize such gaps through perverse funding priorities.
Tuesday, August 5, 2014
The Law and Ethics of Dementia, co-edited by Israel Doron, Charles Foster and Jonathan Herring, recently released in hardback by Hart Publishing and available for e-readers in September, is definitely on my "must read" list. Followers of this Blog will certainly recognize Issi Doron, from the University of Haifa, who has long exercised an international, comparative perspective on issues in ageing. Professor Foster is a practicing barrister and a fellow at Green Templeton College, University of Oxford, which is also the working home of prolific writer and Law Professor Herring.
The book is organized into five parts, Medical Fundamentals, Ethical Perspectives, Legal Perspectives, Social Aspects, and Patient and Carer Perspectives. As part of the first section, physicians and researchers Amos Korczyn and Veronika Vakhapova co-author "Can Dementia be Prevented?" a question we all hope will be answered in the affirmative. Not surprisingly, given the title of the book, the section on ethical perspectives promises to be especially fascinating, offering multiple views on ethical components of decision making and care. To suggest the scope, Andrew McGee's chapter is on "Best Interest Determinations and Substituted Judgement," while Leah Rand and Mark Sheehan tackle the challenge of "Resource Allocation Issues in Dementia."
In the Social Aspects section, I notice that Syracuse Law Professor Nina Kohn has a chapter on "Voting and Political Participation," while Chinese (and University of Pennsylvania) health care scholar Ruijia Chen and colleagues address "Physical, Financial and Other Abuse."
With more than forty individual chapters and dozens of international writers, this book promises to be a key guide for the future.
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)