Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Sunday, February 18, 2018

Article on Rational Patient Apathy

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-18/dd617d1d-65f1-461a-a109-f143350bd11e.pngBarbara A. Noah & René Reich-Graefe recently posted an Article entitled, Rational Patient Apathy, Elder Law Studies eJournal (2017). Provided below is an abstract of the Article:

Patients with serious or life-threatening illness are frequently asked to make complex, high stakes medical decisions. The impact of anxiety, low health literacy, asymmetric information and inadequate communication between patients and health care providers, family pressures, rational apathy by health care providers, cognitive biases of both patients and health care providers, as well as other factors, make it quite difficult for patients in these circumstances to process and comprehend the strategic uncertainty and resultant risks and benefits of, and alternatives to, whatever therapeutic or life-prolonging treatment physicians are offering. All of these factors render the classic goal of “informed consent” unachievable in all but the rarest of circumstances: The effort to discuss and evaluate strategic uncertainty, its rational reduction into risks and benefits, and alternatives of treatment for purposes of optimizing decisional outcomes will have genuine intrinsic value only for ultrarational patients (and physicians).

In addition to these alterable barriers to rational decision-making — i.e., barriers that can, in theory at least, be overcome by ultrarational patients (and physicians) with sufficient time and persistent inquiry — there is a second decision-making realm in which the added complexities of bounded rationality, clinical uncertainty and, in particular, of overall Knightian uncertainty provide insurmountable, unalterable barriers to confident rational decision-making. Within this more fundamental human realm of irreducible uncertainty, even ultrarational decision-makers can never confidently calculate a highest-utility treatment option. In order to better describe this secondary realm of unalterable barriers to rational patient choice, including its usually subversive effect on end-of-life decisional behavior, by both average, minimally-rational patients and ultrarational patients, we coin the term “rational patient apathy” (and, relatedly, “rational patient ignorance”).

Given that confronting the absolute uncertainty inherent in facing one’s mortality is cognitively, psychologically and emotionally daunting, and thus largely left unexplored and unpracticed by most patients for most of their (healthier) decisional lives, rational patient apathy at the sudden onset of a serious or life-threatening illness overwhelmingly defaults to negative decision-making, i.e., an affirmative choice not to make any (balanced) decision on the merits but rather to remain rationally ignorant of some or all aspects of the choice situation. In the context of this persistent patient avoidance of substantive decision-making, empirical evidence demonstrates frequent reversion to a quantity-over-quality approach, allowing health care providers to “do everything” until the continued medical treatment reaches the point of obvious medical or economic futility. As a result — and as a largely discounted trade-off of choosing to avoid decisional burdens through non-careful consideration (or no consideration at all) — the overwhelming result of rational patient apathy in end-of-life decision-making is an irrational calculation and decision unto itself. Not only does rational patient apathy negate the classic (and utopian) goal of informed consent, it also exerts tremendous costs — on patients, on loved ones, on health care providers and on society at-large — in terms of adverse health effects, avoidable suffering, constantly recurring decisional commitment costs, and the wasting of scarce economic resources.

February 18, 2018 in Articles, Death Event Planning, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Monday, February 5, 2018

Article on Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-05/13d84722-005f-4625-a370-2266b232ea38.pngJoel Nitikman recently posted an Article entitled, Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article:

Terminally ill patients in the United States have four medical options for controlling the time and manner of their death. Three of these are legally available to certain clinically qualified patients. First, all patients may withhold or withdraw life-sustaining treatment. Second, all patients may voluntarily stop eating and drinking. Third, patients with intractable suffering may receive palliative sedation to unconsciousness. In contrast, the fourth option is available in only seven U.S. jurisdictions. Only there may patients legally obtain a prescription for a lethal medication that they can later self-ingest.

Medical aid in dying (MAID) is not yet legally available in 49 of 56 U.S. jurisdictions. But its legal status has been in a state of rapid change across the country over the past ten years. Before 2008, MAID was legal only in Oregon. Today, it is legal in seven U.S. jurisdictions. Moreover, the rate and pace of legalization has been accelerating. Three of the now seven MAID jurisdictions enacted their statutes within only the past two years. Moreover, there are widespread and ongoing legislative and judicial efforts to legalize MAID in more than thirty other states. 

I have designed this Article to help inform and guide these expanding law reform efforts. Because a page of history is worth a volume of logic, it summarizes earlier efforts (both successful and unsuccessful) to legalize MAID in the United States. In other words, this Article provides a descriptive legal history. It does not normatively assess either whether any efforts to legalize MAID were good public policy. Nor does it assess whether advocates grounded their arguments on solid legal analysis. Instead, this Article offers an objective, systematic, and thorough account of what those efforts were. 

In Section One, I describe MAID. We must first understand what MAID is before examining attempts to legalize it. Once we grasp the nature of MAID, it starts to become clear why law reformers have concluded that they must legalize it. In Section Two, I explain that MAID falls within the prohibitory scope of criminal assisted suicide statutes in almost every state. In other words, MAID is “assisted suicide.” Assisted suicide is a crime. Therefore, MAID is a crime. Moreover, in addition to its actual legal status, MAID probably is illegal. It is at least widely perceived to be illegal. Therefore, both patients who want to access MAID and physicians who want to provide MAID have strong incentives to change (or at least clarify) its legal status.

In the remainder of the Article, I examine five different paths that reformers have taken to legalize MAID. In Section Three, I start with the most successful approach, statutory enactment. Six states have enacted MAID statutes: three through ballot initiatives and three through legislation. I discuss these six states. I also briefly discuss a few more states that have come close to enacting MAID statutes. Furthermore, more than one-half of the remaining states have recently considered legislation. They are likely to continue this deliberation and debate in 2018, 2019, and 2020.

In Section Four, I examine attempts to legalize MAID through federal constitutional litigation. Because the U.S. Supreme Court definitively rejected such arguments in 1997, advocates have since refocused their litigation arguments using state law theories. In Section Five, I review cases seeking to legalize MAID through state constitutional litigation. Unfortunately, like federal constitutional claims, state constitutional claims have also been uniformly unsuccessful. 

In Section Six, I discuss attempts to legalize MAID through state statutory interpretation litigation. These lawsuits argue that MAID does not even constitute “assisted suicide” in existing criminal statutes. Finally, in Section Seven, I examine two final paths toward “legalizing” MAID: constraining prosecutorial discretion and jury nullification. Unlike other approaches, these do not change the legal status of MAID. Yet, they do change whether prosecutors will or can penalize patient or physician participants. 

In sum, the expanded legalization of MAID seems inevitable. Surveys consistently show that more than 70 percent of the American public supports MAID. But the battle will be fought bill-by-bill and lawsuit-by-lawsuit in each state. I hope to inform these efforts with lessons from the legal history of MAID described below.

February 5, 2018 in Articles, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, February 2, 2018

Husband with Alzheimer’s Forgot he Was Married To His Wife of 38 Years. He Proposed, and They Married Again.

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-01/43815157-38bb-43f0-a292-8f744ec89471.pngMichael Joyce suffers from Alzheimer’s/Disphasia. The disease has progressed to the point that he forgot he was married to his wife, Linda Joyce, of 38 years. He did not forget, however, that he was in love with her. Michael, being an honorable man and deeply in love, asked Linda to marry him, again. Thinking he would soon forget the request, Linda happily acquiesced. The next morning though, Michael woke up and asked, “So, when are we doing this?” Linda sought help from locals and the sourrounding community responded enthusiastically. Linda was deeply moved by the celebration: “There’s been a lot of sadness and a lot of frustration. And despite all the fogginess, today has been pure joy.”

See Allision Klein, Husband with Alzheimer’s Forgot he Was Married To His Wife of 38 Years. He Proposed, and They Married Again., The Washington Post, January 25, 2018.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

February 2, 2018 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, January 29, 2018

Filial Friday on Monday: PA Supreme Court Agrees to Hear Further Appeal of "Reverse" Filial Support Case

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-01-29/9745eca6-ecbe-4a7f-8d36-782008e7c1e6.pngMelmark Inc. v. Schutt involves a Pennsylvania residential facility that houses disabled children and adults and its continuing attempt to hold parents, both over the age of 70 and residents of New Jersey, liable for their autistic son's costs for care. The parents successfully argued at trail and on appeal that New Jersey law, not Pennsylvania law, controlled the issue. New Jersey statutes limit the support obligations of older adults (55+) strictly to spouses or minor children; Pennsylvania statutes do not share a similar limitation. In December, the Pennsylvania Supreme Court granted a further appeal on the facility's behalf. This case presents an interest issue relating to conflicts between the laws of these states. 

See Katherine C. Pearson, Dickinson Law, Penn State, Filial Friday on Monday: PA Supreme Court Agrees to Hear Further Appeal of "Reverse" Filial Support Case, Elder Law Prof Blog, January 15, 2018.

Special thanks to Berry P. Turney for bringing this article to my attention.

 

 

January 29, 2018 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Wednesday, December 27, 2017

Opinion Today: The End of Inheritance

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-25/1f294047-44b5-4651-96b0-4e5846ffed5b.pngThe cost of caring for aging populations in western nations is becoming an ever-increasing concern. As health and elder care costs rise, it becomes more and more of a struggle for individuals to afford end-of-life care. With this, the middle-class dream of leaving something behind for children and loved ones seems less realistic. A reasonable and balanced political conversation regarding elder care is woefully overdue.

See Sebastian Payne, Opinion Today: The End of Inheritance, Financial Times, December 23, 2017.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

December 27, 2017 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Thursday, December 21, 2017

Older Americans Would Rather Die Than Live in a Nursing Home

"'Kiss of life' from a parking officer?! I'd rather die!!"A new survey from The Nationwide Retirement Institute reveals that 61% of Americans would rather die than live in a nursing home. Caregivers are often impacted by this stigma as they watch loved ones move into retirement and beyond. A hefty majority of caregivers reported significant emotional distress stemming from negative repercussions on health, martial strain, less time for family, and difficulty in balancing tasks. Eric Henderson, senior vice president at Nationwide, said: “[t]he role of a caregiver can be difficult, and they often give up more than expected when it comes to caring for a family member.” He also noted that his company’s sixth annual survey clearly shows the relationship between emotional, financial, and physical stresses and being a caregiver.

See Jadah Riley, Older Americans Would Rather Die Than Live in a Nursing Home, Financial Advisor, December 20, 2017.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

December 21, 2017 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Thursday, December 7, 2017

Projected Life Expectancy Shocks Clients

'Yes, this is an intervention. It's your curiosity...it's going to kill you if you don't stop.'Carolyn McClanahan, physician, financial advisor, and co-founder of Wealthcare Planning LLC, has received interesting feedback from those who have adopted her software into their practices. The health and eldercare financial planning software asks clients about weight, height, current health, diet, exercise regimen, alcohol consumption, social interactions, time spent sitting, and smoking habits. The program then generate a projected life expectancy based on the data. For some, the ensuring result can be incredibly surprising. McClanahan was with one of these clients when he received the results. She said that she knew “he had high blood pressure, high cholesterol and was overweight, but I didn’t know he was a closet alcoholic.” McClanahan took this opportunity to speak with the client about his alcohol consumption and turned the negative result into a positive outcome.

See Jerilyn Klein Bier, Projected Life Expectancy Shocks Clients, Financial Advisor, September 14, 2017.

December 7, 2017 in Disability Planning - Health Care, Estate Planning - Generally, Technology | Permalink | Comments (0)

Wednesday, November 29, 2017

CLE on Planning for Incapacity: Financial Powers of Attorney, Health Care Directives, and Ethical Challenges

0000000 CLEThe American Law Institute is holding a conference entitled, Planning for Incapacity: Financial Powers of Attorney, Health Care Directives, and Ethical Challenges, which will take place on Wednesday, December 6, 2017, via telephone seminar and audio webcast. Provided below is a description of the event:

Why You Should Attend

Do you find yourself going to standard forms to draft durable powers of attorney and health care directives—after carefully constructing a customized will and/or trust to meet your client’s planning objectives? Are you aware of ethical obligations in connection with representing clients with diminishing capacity?

Protecting your client in life is just as important as easing the orderly disposition of property after death. Powers of attorney and health care directives are significant tools that ensure that the clients’ wishes are honored and financial assets are protected while they are incapacitated.

Join experienced estate planners for an in-depth exploration of how to effectively draft and use durable powers of attorney and health care directives. Faculty will also address ethical obligations of attorneys to protect clients’ financial interests and minimize their financial exploitation if clients become unable to conduct their own affairs.

What You Will Learn

Topics of discussion will include:
Financial Powers of Attorney
Health Care Directives
Ethical considerations, including interaction of Model Rules 1.6 and 1.14

Who Should Attend

Estate Planners who represent disabled and elderly clients will benefit from this focus on preserving and managing assets and preserving estate planning goals in the event of disability or other incapacity.

Tuition for the telephone seminar includes a set of electronic course materials and access to the telephone seminar.

Tuition for the webcast includes a set of electronic course materials and access to the webcast.

November 29, 2017 in Conferences & CLE, Disability Planning - Health Care, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Under ‘Observation,’ Some Hospital Patients Face Big Bills

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-11-29/73bdca46-118c-4fbf-976d-6be1324c9b52.pngUnder the current Medicare regime, those requiring inpatient care are covered under Medicare Part A, and those only needing outpatient care are covered under Part B. This difference in classification is important as outpatients can face higher coinsurance, drug, and nursing home costs. For inpatients, after a consecutive three-day stint in a hospital, Medicare covers 100% of skilled nursing costs for 20 days and the majority of total costs for up to 100 days. Medical will not cover these costs for outpatients or inpatients with a stay shorter than the three-day threshold. This has become increasingly problematic as hospitals have started classifying a growing number of patients as outpatients, even when they provide medical services for extended periods of time. These patients are then forced to pay for the entirety of their nursing care expenses. This status classification has previously not been an appealable issue, but this may change with a recent ruling by a federal judge in Connecticut.

See Paula Span, Under ‘Observation,’ Some Hospital Patients Face Big Bills, The New York Times, September 1, 2017.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

November 29, 2017 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Monday, November 20, 2017

What If You Knew Alzheimer’s Was Coming for You?

Alzheimer_brainLast week, Microsoft co-founder Bill Gates used his blog to share with his readers that some of the men in his “family have suffered from Alzheimer’s.” This means that Gates may have an increased risk of suffering from dementia. In the post, Gates voiced his desire to help develop “a more reliable, affordable and accessible diagnostic — such as a blood test.” To encourage new research, he also announced that he would be donating $100 million to help find a cure for Alzheimer’s.

See Pagan Kennedy What If You Knew Alzheimer’s Was Coming for You?, The New York Times, November 17, 2017.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

November 20, 2017 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)