Tuesday, November 24, 2015
We have all heard stories of an elder making the family promise to never admit the elder into a nursing home. Sometimes, however, people need that level of care, and well-meaning family members are not always able to provide the needed care. That is part of the story of When to Ignore a Promise to ‘Never Put Me in a Home’ which ran in the New York Times on November 9, 2015. The article features an unidentified patient with a huge bedsore, who had extracted such a promise from her family. Following that promise to the letter, the family members did their best to care for her, but despite their best efforts, complications occurred. The doctor authoring the story explained some background
Our patient came from a poor immigrant household without much community support. For years, as she felt herself slipping, she had emphasized over and over again that she never wanted to go into a “home” or be tended by strangers. She wanted to stay at home with her children. Nothing unusual there.
What was unusual was the precision with which her children followed her wishes. As their mother became really confused, then silent, then bedbound, they continued to care for her themselves in the back bedroom.
Turning the focus of the article onto advance directives, and the pros and cons of directives, the doctor writes
[Advance directives] are supposed to give people some control over the future. More often than not, perhaps, the future refuses to be controlled.
Directives may not be detailed enough to help organize a patient’s care. They may be so detailed that doctors and relatives cannot agree on how to interpret the minutiae. Directives may be overlooked in the heat of emergency, ignored out of pure lassitude, or lost somewhere in the closet.
Or, as in our patient’s case, they may be clear and simple, and followed to the letter. And look what happened to her.
The doctor considers health care agents as a better choice, but notes the questions agents must ask principals but frequently don't: "'Do you really want me to do exactly what you are telling me to do? How much wiggle room do I get?'" This is important for many reasons, not the least of which is what you believe and prefer when you sign your directive may not be the same when it is time to use the directive (what the author refers to as the past you and present you).
Our own patient and her family got all bolluxed up in obligations to their past selves. The bottom line was clear — the patient never would have wanted what she got. But even given that, we wondered, when should her children have changed course?
We had no good answers. Our patient spent a few days in the hospital and then went straight to a nursing home to finish a long course of antibiotics and, presumably, to live there for the duration.
Monday, November 16, 2015
I've heard periodically some conversations about attorneys practicing law much longer than they should because they develop significant cognitive deficits. I've also heard similar conversations occasionally about judges, primarily in the context of judges who hold lifetime appointments. The AP ran a story in early November on this topic, featuring the efforts of the 9th Circuit to address the issue of judges who experience significant cognitive declines while still sitting the bench.
[T]he 9th U.S. Circuit Court of Appeals, which includes federal courts in California and eight other Western states, has taken a more pro-active approach to the problem of mental decline by trying to get its judges to think about the condition, plan for it and handle it appropriately if it comes up.
The circuit court holds regular seminars led by neurological experts to teach its chief judges about the signs of cognitive impairment. It has set up a hotline where court staff and judges can get advice about dealing with signs of senility in colleagues. It has also encouraged judges to undergo cognitive assessments and designate colleagues, friends or family who can intervene if concerns arise about their mental health.
The article discusses the pros and cons of mandatory retirement or term limits and notes that the 10th Circuit had two cases that might fall in the category of cognitive decline. The article quotes a 9th Circuit judge who decided to stop hearing almost all cases in an abundance of caution. This judge noted that "'if the goal is to work until you are no longer able, you will work a couple of years too long...'"
The AP story was picked up by a number of publications, including the ABA Journal
Wednesday, November 4, 2015
The Kaiser Family Foundation's Commission on Medicaid and the Uninsured released an issue brief on Medicaid’s Role for People with Dementia.
Almost one-half (46%) of nursing facility residents and about one in five (21%) seniors living in the community has probable or possible dementia, a syndrome characterized by a chronic, progressive decline in memory and other cognitive functions, such as communication and judgment. People with dementia often have complex medical and behavioral health needs, and many rely on family caregivers to provide assistance with self-care and other daily activities. As dementia advances, paid care may be needed. Most people with dementia have Medicare, but due to high out-of-pocket costs and lack of long-term services and supports (LTSS) coverage, low-income people with disabilities resulting from dementia may need Medicaid to fill in the coverage gaps. Medicaid plays an important role in providing LTSS and is increasingly focused on efforts to help seniors and people with disabilities remain in the community rather than reside in institutions.
Given the expected growth of the elderly population over the coming decades and barring medical breakthroughs, a larger share of Americans likely will have dementia, which has implications for Medicaid coverage, delivery system design, financing, and quality monitoring. This fact sheet describes Medicaid’s role for people with dementia who live in the community, highlighting common eligibility pathways, beneficiary characteristics, covered services, health care spending and utilization, and key policy issues.
The issue brief discusses several issues and then concludes
Improving medical care and LTSS for people with dementia is likely to remain a major public health issue as well as the focus of ongoing medical research in the coming decades as policymakers, families, and other stakeholders consider cost-effective options to meet the needs of this vulnerable and expanding population. Medicaid beneficiaries with dementia have fewer financial resources to contribute toward the cost of care and are significantly more likely to use home-based services than people without Medicaid. People with dementia will likely need paid care as their functioning declines, and in the absence of other viable public or private financing options, Medicaid will continue to be the nation’s primary payer for LTSS.
Thursday, October 29, 2015
Friends are an integral part of the fabric of our lives. Perhaps the most important time in one's life to have friends is at the end of life, according to an article in the New York Times. The article, Near the End, It's Best to be "Friended" focuses on what has become known as the "unbefriended" elders. When we think "unbefriended", we think of someone without friends or relatives. Maybe the person has outlived everyone. But the article offers that "unbefriended" has a much broader meaning: "you can also be unbefriended, even if you do have friends and family, if you are incapacitated and haven’t appointed someone you trust as a health care proxy." The article cites a study that shows an increase in the number of unbefriended elders and notes the likelihood of a continued increase since the chance of dementia increases with age.
More and more patients who lacked decision-making capacity, had no available surrogates and had not completed an advance directive,” said Martin Smith, director of clinical ethics at the Cleveland Clinic.
The kinds of unrepresented elders might change, too. In the past, many were marginalized — homeless, addicted, mentally ill, estranged. Baby boomers, with higher rates of childlessness and divorce, have smaller and more mobile families, and longer life spans. “They could live a largely mainstream life, but outlive everyone around them..."
The article notes that some states have statutes giving priority order to relatives and, in some instances, others to make health care decisions for those who haven't made a directive.
Twenty-four states and the District of Columbia have added “close friend” to that list, according to the American Bar Association Commission on Law and Aging; some states also include aunts and uncles, nieces and nephews, and adult grandchildren. A member of the clergy can serve in that role in Texas. The wider the net, the reasoning goes, the greater the likelihood of finding someone authorized to make decisions. Legalized same-sex marriages also mean fewer unrepresented gay and lesbian older adults.
This is an interesting article that provides good content for discussion with students about the importance of advance directives, and the potential for problems without them.
Tuesday, October 27, 2015
The National Center on Elder Abuse (NCEA) has a really cool fact sheet on APS. Adult Protective Services: What You Must Know, provides a concise explanation of APS, reporting, FAQs and client protections. Great information in a 2 page document! This would be a good resource for students to gain understanding of APS.
Monday, October 26, 2015
I've posted several times of late on recent articles about dementia. So here is one more, from England. Published September 21, 2015 in The Guardian, One-third of British people born in 2015 'will develop dementia' looks at the projections of dementia in England. The article opens with sobering statistics. "One in three people born this year will develop dementia, according to new figures. The Alzheimer’s Research UK charity warned of a “looming national health crisis” as the population ages." Quoting Alzheimer's Research UK which offered that age is the most significant risk factor, the article offers future predictions:
As people live longer than ever before, the numbers with dementia will rise. The latest analysis, commissioned by the charity and carried out by the Office of Health Economics, was released to mark World Alzheimer’s Day.
It showed 27% of boys born in 2015 will develop the condition in their lifetime, alongside 37% of girls. Previous research from the same team has estimated that the development of a drug that could delay the onset of dementia by five years would cut the number of cases by a third.
We know the implications on caregivers from this disease. The article offers the fiscal impact on the country:
George McNamara, head of policy at Alzheimer’s Society said: “Dementia is already the biggest health challenge this country faces. It costs the UK in excess of £26bn, which equates to £30,000 a person with dementia – more than the cost of either cancer or heart disease. Today’s stark finding should galvanise the government, and us all, into action.”
Sunday, October 25, 2015
The October 2015 issue of Health Affairs contains an article about the impact of caring for an individual with dementia has on caregivers (family and unpaid), The abstract provides a description of the article, the Disproportionate Impact Of Dementia On Family And Unpaid Caregiving To Older Adults
The number of US adults ages sixty-five and older who are living with dementia is substantial and expected to grow, raising concerns about the demands that will be placed on family members and other unpaid caregivers. We used data from the 2011 National Health and Aging Trends Study and its companion study, the National Study of Caregiving, to investigate the role of dementia in caregiving. We found that among family and unpaid caregivers to older noninstitutionalized adults, one-third of caregivers, and 41 percent of the hours of help they provide, help people with dementia, who account for about 10 percent of older noninstitutionalized adults. Among older adults who receive help, the vast majority in both community and residential care settings other than nursing homes rely on family or unpaid caregivers (more than 90 percent and more than 80 percent, respectively), regardless of their dementia status. Caregiving is most intense, however, to older adults with dementia in community settings and from caregivers who are spouses or daughters or who live with the care recipient.
A subscription is required to access the full article.
Wednesday, October 21, 2015
USA Today ran an article on October 15, 2015 about the cost of long term care for individuals with dementia, especially those with Alzheimer's. The estimated price tag? Almost three quarters of a million dollars! Got $730K saved for nursing care? Dementia could cost that much notes that a person with dementia needing long term care could live for several years, needing round the clock care,the cost of that care mounts up and "leav[es] families in an emotional, financial and logistical quagmire."
This is a growing issue and one that will affect many. "Boomers are increasingly faced with supporting both their children and their parents, or at least helping to figure out how their parents can best help themselves. Senior citizens with heart disease and cancers that were once a death sentence are now living far longer."
The article discusses Medicare and Medicaid as far as coverage for long term care and the differences in Medicaid programs amongst states.
Monday, October 19, 2015
NAPSA and the National Council on Crime & Delinquency announce a webinar on Improving Client Mental Health to Positively Impact Abuse Resolution. The webinar is scheduled for October 20, 2015 from 2-3:30 p.m. edt.
The announcement explains the webinar
In this webinar we will discuss the implementation of mental health screening and Problem-Solving Psychotherapy (PST) into routine elder abuse services. Providing Options To Elderly Clients Together (PROTECT) is a mental health program where anxiety and depression screening and problem-solving therapy with anxiety management are integrated into elder abuse services to improve the outcomes of victims with depression and/or anxiety. The webinar will describe the methods used and the effects of the program on staff and clients.
Click here to register for the webinar.
Tuesday, October 13, 2015
In the last few months, I've been getting calls about folks involved in disputes with what I would call two levels of concern. First, there is the concern about how to represent a client with a disability, especially a disability such as dementia, that can make it problematic to ascertain whether the client fully understands his or her own safety or personal care needs. But, the second level is perhaps even more important, the question of whether the lawyer or lawyers involved in the dispute have fully analyzed the questions of "who is my client?" and "do I have a conflict of interest?"
A case that demonstrates well the potential tensions between client capacity, client best interests, and the needs for attorneys to be self-aware, is Dayton Bar Association v. Parisi, 565 N.E. 2d 268 (Ohio 2012). The disciplinary proceeding arose out of two separate client matters, both involving "older" clients. In the first matter, what I call the classic elder law issue of "who is my client" is at the heart of the problem. The decision emphasizes that just wanting to keep the "client safe" is not a defense to a conflict.
In this matter, the attorney in question "began to provide legal services for ... a 93-year-old woman who claimed that she was being held against her will in a nursing home."
The lawyer became concerned about the client's "financial welfare, ... confusion and disorientation," and therefore "applied for a guardianship on the ground the individual was incapacitated as a result of Alzheimer's-related memory loss."
As the Disciplinary proceedings analyzed, the decision of the lawyer to file a guardianship petition may have been consistent with Ohio Rule of Professional Conduct (similar to ABA Rule) 1.14(b) which the Court viewed as permitting "a lawyer to file a petition for guardianship of a client when no less-restrictive alternatives are available."
However, the attorney then had the client "sign a durable power of attorney" and the POA appointed the lawyer as her agent. Next the attorney withdrew her own application for the guardianship, and filed a separate application for guardianship on behalf of the niece.
Compounding this series of conflicts of interest, the disciplinary proceeding addresses the fact that the attorney eventually used the POA as authority to pay "her own fees of more than $18,000 without first obtaining the court's order."
The Ohio Supreme Court affirmed the Disciplinary Board's finding that representing both the woman and her niece in a guardianship violated Rule of Professional Conduct 1.7(a)(2) on conflict of interest. Further, the Ohio Supreme Court agreed with the Board that the attorney's use of the POA to pay her own legal fees while the guardianship application was pending was improper.
The full opinion is well worth reviewing, especially as the second matter leading to the lawyer's suspension from the practice of law involved the attorney billing for legal services plus "non-legal" services she performed as an agent under a POA for an older man whose "extended family was either unwilling or unable to assist in his care."
The Disciplinary Board found, and the Ohio Supreme Court affirmed, that doing a "good job" and helping the man avoid a nursing home did not suffice to justify the $200K plus fees in question. The Court singled out a prime example of the attorney's overbilling, charging "approximately $13,000 in fees and expenses for overseeing the partial restoration of [the man's] beloved Jaguar."
October 13, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 12, 2015
Last week was "Mental Illness Awareness Week," and in recognition of that fact, Maryland Attorney Michael E. McCabe, Jr. posted an important Blog item on representing clients with diminished capacity. I'm impressed that discussion of the need for lawyers to appreciate the potential for mental health to impact any aspect of the lawyer-client relationship is written for the IPethics & INsights blog, his law firm's " resource for intellectual property rights attorneys."
In other words, the topics of mental health and legal capacity are not exclusively the province of estate planners, elder law attorneys, disability law practitioners or poverty law experts.
He notes at the outset:
According to the leading mental health organization in the country, 1 in 5 adults in the United States suffers from some form of mental health condition or disorder. Thus, it is likely that at some point in your legal career, you will be representing an individual client or a representative of a corporate client, who suffers from some degree of mental illness.
Attorney McCabe points to ABA Model Rule of Professional Conduct 1.14 as guidance, while also suggesting:
A two-prong test may be useful when determining the existence and degree of a client's mental illness:
(1) "take reasonable steps to optimize capacity," and
(2) "perform a preliminary assessment of capacity."
Attorney McCabe also links (although not directly attributing his recommendation) to Charlie Sabatino's important 2000 article, "Representing a Client with Diminished Capacity: How Do You Know It And What Do You Do About It?"
I suppose I do have a small quarrel with the author, however. The title of his post is "What They Didn't Teach You in Law School: Representing Client with Diminished Capacity." Mr. McCabe graduated law school in 1992, and perhaps diminished capacity was not well addressed by law schools at that time. Although it could be my bias as an academic interested in aging policy, I believe law schools have changed with the times. Certainly I find myself teaching the importance of "capacity" issues and the attorney-client relationship, and I start this in my 1L course on Contracts, while digging deeper into the field of mental health impacts in Wills/Trusts/Estates and, of course, Elder Law. Other faculty members address mental health in a variety of other contexts, including courses on education law.
If Mr. McCabe is right that law schools are not currently addressing the complex concerns attached to mental health, then certainly the moral from his column is "we need to do better."
My thanks to Attorney McCabe, and to Dickinson Law Professor Laurel Terry for sharing his article.
October 12, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)
Wednesday, October 7, 2015
PBS is premiering a six-part series on "The Brain with David Eagleman" on Wednesday evenings, beginning on October 14, 2015. It looks intriguing, with the following segments:
- What is Reality?
- What Makes Me?
- Who is In Control?
- How Do I Decide?
- Why Do I Need You?
- Who Will We Be?
The Albuquerque Journal recently profiled the creative mind behind this creative series. Neuroscientist David Eagleman grew up in Albuquerque although he now runs a lab for "Perception and Action" at Baylor University, where he also has a special interest in "neuroscience and the law."
Thursday, October 1, 2015
The Michigan Supreme Court recently invited amicus briefing by Elder Law attorneys and Disability Rights attorneys, in advance of oral argument in an interesting case involving a nursing home resident's claims of false imprisonment by the facility. The legal question of what is sometimes referred to as an "involuntary" admission for care initiated by family members or concerned others acting as "agents" for an unhappy or uncooperative principal, is important and challenging, especially if accompanied by conflicting assessments of mental capacity.
Following the Michigan Court of Appeals' 2014 ruling in Estate of Roush v. Laurels of Carson City LLC, in September 2015 the Michigan Supreme Court agreed to hear arguments on whether there are genuine issues of material fact on the resident's claim of falsely imprisonment for a period of approximately two weeks. Ms. Roush alleges the nursing home acted improperly in reliance on her "patient advocate," claiming that she was fully able to make health care decisions for herself, and therefore there were no legally valid grounds for her advocate to trump her wishes. Alternatively, Ms. Roush argued she validly terminated the patient advocate's authority.
In Michigan, individuals may appoint a statutorily-designated "patient advocate," with limited authority as an agent for certain health care decisions. Michigan law provides at M.C.L.A. Section 700.5506 that: "The [written] patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions...."
The Supreme Court's order identified specific issues for additional briefing by the parties. Further, the court expressly invited the "Elder Law and Disability Rights Section of the State Bar of Michigan. . . to file a brief amicus curiae. Other persons or groups interested in determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae."
October 1, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 28, 2015
Thomas Jefferson School of Law is hosting its second annual student writing competition focusing on disability law. The Crane Writing Competition, named in honor of a Thomas Jefferson alum, Jameson Crane III, seeks to encourage student scholarship at the intersection of law and medicine, or law and social services. A central purpose is to further development of legal rights and protections, and improve the lives of those with disabilities.
Who can enter? The competition is open to currently enrolled law students, medical students and doctoral candidates in related fields, who attend an accredited graduate program of study in the U.S.
Deadline for entries? January 15, 2016 (by midnight, Pacific Standard Time) via electronic submission. For details see the competition website at Thomas Jefferson School of Law: http://www.tjsl.edu/cranewritingcompetition
What will be your topic? The competition accepts papers on a wide range of topics related to disability law, including legal issues arising from employment, government services and programs, public accommodations, education, higher education, housing and health care. This should integrate well with students currently taking or who have recently completed a seminar course, thus allowing that all important "double value" for good papers.
Prizes include cash ($1,500 to first place; $1,000 for each of two second place winners), plus potential publication.
My thanks to Professor Susan Bisom-Rapp for sharing news of this year's competition. She is coordinating the competition and you can send questions directly to Susan.
Sunday, September 27, 2015
Trying to keep straight all of the preventive services available to individuals is daunting, but the Kaiser Family Foundation (KFF) has made it easy with their new tool, Preventive Services Tracker. There are separate trackers for each condition including cancer chronic conditions, immunizations, sexual health, health promotions and preganancy-based. Organized into easy-to-use charts,, each chart provides information on the required service, the target population, the recommendation, coverage clarifications and effective dates. The charts also provide links for each required service to explain more details.
You might also want to check out their article on Preventive Services Covered by Private Health Plans Under the Affordable Care Act and the accompanying fact sheet.
Thursday, September 17, 2015
Why do we see the graying of prisons? The article references the tough on crime lasts back in the 1980s and 1990s but there is more to it. "In 2013, about 10 percent of the nation’s prison inmates ... were 55 or older. By 2030, the [ACLU] report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration."
The article also discusses the costs of caring for inmates who are elderly and reviews some state responses. For example the Fishkill Prison in New York has a unit for those prisoners with cognitive impairments:
This unit, the first of its kind in the country, is specially designed to meet the needs of inmates with dementia-related conditions. It is part of the state’s medical hub at Fishkill, a medium-security prison 70 miles north of New York City. The 30-bed unit, opened in 2006, is set up to resemble a nursing home more than a prison ward. The walls are painted white and the lights are bright, intended to elevate and stabilize mood. Inmates are allowed to walk freely around the unit (wandering is common for those with dementia or related conditions). The staff includes specially trained physicians, nurses, clinical psychologists, psychiatrists, social workers, and corrections officers. The average age of the unit’s 24 inmates is 62.
Care for prisoners in this unit costs almost twice as much as for those in the prison population outside this unit. In California inmates in "good standing" provide care for inmates who have dementia or other illnesses related to advanced age.
The Gold Coats — the caretakers wear gold-colored jackets — assist patients with daily tasks such as dressing, shaving, showering, and other personal hygiene. They escort patients to the dining hall, and to the doctor. They act as companions, protecting their patients from being bullied, and make sure they get food at meal time. The Gold Coats also lead exercise classes and activities designed to stimulate memory. There are Gold Coat programs at 11 California prisons.
Connecticut tried a completely different approach, basically building a nursing home for prisoners and others who are "difficult to place" and in need of that level of care. As noted in the article,that road hasn't been completely smooth.
The town has sued to shut it. Citing zoning restrictions, the town argues that 60 West should be considered a prison/penitentiary, rather than a nursing home. Rocky Hill says it also fears that if nursing-home care for inmates becomes more common, rules on admission will eventually be loosened to allow more dangerous patients to be admitted, potentially endangering neighborhood.
At the same time, the federal government has declined to certify 60 West as Medicaid eligible, because of the unlikely event that an ailing inmate could recover and be returned to prison. Inmates aren’t eligible for Medicaid, and with the prospect, however unlikely, that some patients could once again be incarcerated, the government is arguing that the patients are ineligible, and thus the entire facility is ineligible. The owners are considering an appeal.
Regardless of the approach taken by these 3 states, clearly state correctional officials need to think through the options to provide care for prisons' graying population.
Just fyi the "[KHN] story was written by Maura Ewing for The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system." Some additional stories from the Marshall Project include Do You Age Faster in Prison? , Older Prisoners, Higher Costs , Dying in Attica and Too Old to Commit Crime?
Wednesday, September 16, 2015
Catching up on a bit of reading, I notice that the Uniform Laws Commission has a committee hard at work on drafting proposed revisions to the 1997 Uniform Guardianship and Protective Proceedings Act (UGPPA). University of Missouri Law Professor David English is Chair of that committee, with many good people (and friends) on the working group.
In reviewing their April 2015 Committee Meeting Summary, available here, I was interested to see the following note under the discussion heading about "person-first language:"
Participants engaged in a lively discussion of the desirability of person-first language, and possible person-first terminology. There was general agreement that the revision should attempt to incorporate person-first language. For the next meeting, the Reporter [University of Syracuse Law Professor Nina Kohn] will attempt a draft that uses language other than "ward" or "incapacitated" to the extent possible and utilizes person-first language instead (precise wording still to be determined). The Reporter will also attempt to use a single term that can describe both persons subject to guardianship and those subject to conservatorship.
I've struggled with "labels" in writing and speaking about older adults generally, and incapacitated persons specifically. It will be interesting to see what the ULC committee recommends on this and even more daunting tasks, including how to better facilitate and promote "person-centered decision-making" and limited guardianships.
September 16, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Friday, September 11, 2015
In a recent decision in a complicated and long-running guardianship case, an appellate court in Illinois highlights a topic I'm seeing more and more often: How should courts "value" scores given by evaluators on mental status exams, especially when addressing guardianship issues?
The most recent opinion in Estate of Koenen, issued August 31, 2015, described testimony from multiple witnesses about the mental status of a man in a "plenary guardianship" proceeding. In two reports, from physicians chosen by the individual, the medical experts opined he was "capable of making his own personal and financial decisions." Another witness, a psychiatrist, was appointed by the court to evaluate the individual's "ability to make personal and financial decisions." Ultimately, the lower court concluded the individual was unable to manage his affairs.
On appeal, a central issue was the lower court's reliance on the court-appointed expert. Part of the psychiatrist's testimony was that the man "scored 26 out of 30, at the low end of the normal range" on the Montreal Cognitive Assessment (MOCA)" administered in January 2012, a test that was described by the court as a "twelve-minute test with standardized questions, as well as writing and 'copying' tests." The psychiatrist also testified that in January 2013 he tested the man again with a score on the MOCA that was "now 22 out of 30 which was 'fully consistent with dementia.'"
Ultimately, the appellate court affirmed the lower court's decision, noting the extensive use of interviews and other data collection by the court-appointed physician to support the findings of incapacity. The appellate court seemed interested however, in the actual number scores, taking note that the court-appointed expert discounted scores reported by the individual's preferred physicians on "Folstein or 'mini-mental' examination[s]" on the grounds that the MOCA test was more sensitive "for dementia."
Reading this challenging case is a reminder of the ABA-APA Handbooks, for attorneys, psychologists, and judges, on assessing capacity of older adults. The Handbook for Judges describes a host of cognitive and neuropsychological testing tools, although it appears neither the MOCA test or the Folstein test is described. Is "standardization" of testing for purposes of legal capacity decisions needed?
Tuesday, September 8, 2015
Deadline 9/14/2015: Comments Due to CMS re "Binding Arbitration" in Nursing Home Admission Agreements
Erica Wood, a director for the ABA Commission on Law and Aging, writing for the August 2015 issue of the ABA's Bifocal Journal, reminds us that the Centers for Medicare and Medicaid Services (CMS) is seeking comments on proposed changes to rules affecting Long-Term Care Facilities that participate in Medicare and Medicaid programs, including the issue of whether CMS should prohibit "binding" pre-dispute arbitration provisions in nursing home contracts. The deadline for public comments is 5 p.m., on Monday, September 14, 2015. Electronic comments, using the file code CMS-2360-P, can be submitted through this portal: http://www.regulations.gov.
How do you feel about pre-dispute "agreements" binding consumers, including consumers of long-term care, to arbitration? Your comments to CMS can make a difference!
I remember my first encounter with "binding" pre-dispute arbitration provisions in care facilities. In the early years of my law school's Elder Protection Clinic, a resident of a nursing home had purportedly "given away" possessions to an aide at nursing home, who promptly sold them on EBay. The resident was lonely and the "friendship" included the aide taking her out the front door of the facility, via a wheel chair, on little outings, including trips where the resident could visit her beloved house, still full of a life-time of antiques and jewelry. (The resident might have recovered enough to go home -- although eventually a second stroke intervened.)
September 8, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management | Permalink | Comments (0)
Wednesday, September 2, 2015
Research shows that empowering individuals to actively participate in personal decision making improves life outcomes and can reduce the risk of abuse and exploitation. There is a risk of abuse and exploitation in all models of decision making for persons with differing abilities. An overly protective response to situations where a person with varying levels of capacity may be at risk can stifle self-determination and empowerment. Protection needs to be carefully balanced with protecting human and constitutional rights. Adults have a basic right to make choices, good or bad, and determine the course of their lives. An overly aggressive, or inappropriate protective response to limited capacity can itself be a form of abuse. This session will talk about recognizing the signs and signals of abuse, neglect (self-neglect) and exploitation, tools to maximize communication with persons with differing abilities, and promoting self-determination and choice through supported approaches that mitigate against risk and empower individuals. The session will explore the application of the Supported Decision Making model to assist persons in making choices, increase access to positive life outcomes, and reduce the risk of harm.
The webinar is free. To register click here.