Who takes care of the unbefriended elderly?

A critical part of the estate planning process involves the client’s selection of an appropriate person to look out for the client when it’s time for end-of-life decision-making, so that this person can be named in the Health Care Proxy and given access to medical records via a HIPAA Release.. This endeavor seems simple enough, except when there is no one in the client’s life who the client feels may be able or willing to step forward. Perhaps the client’s children have moved far away and are unavailable in an emergency. Perhaps the client is estranged from family and does not want to involve them or friends in the most intimate of decisions. Or perhaps the client simply has outlived her family and friends and there is no one available to look out for her.

Clients like these are known in the elder care world as the “unbefriended elderly.” Roughly 10 years ago, the American Bar Association estimated that 4% of seniors fell into this category. I think that number is now significantly higher, as the size of the typical family has continued to shrink and longevity continues to increase. A terrific article on the New York Times web site discusses the problems which occur for these folks in identifying advocates for end-of-life care.

Under Massachusetts law, employees of hospitals, nursing homes, rest homes, and other “facilities” licensed by the Departments of Public Health, Mental Health and Developmental Disabilities may not act as health care agents unless those employees are actually related to the elder. Thus, doctors, nurses and other employees who may actually have the most intimate knowledge of the elder’s wishes and medical needs are generally barred from acting as a health care agent under a health care proxy. If such persons cannot serve, where does that leave the elder?

Some elder law attorneys will act as health care agents and advocates. I (and most of the elder law attorneys I know) am uncomfortable taking on such a role for my clients for several reasons. First, my training is in law, not social work or medicine, and I do not feel that I have the skills to take on such a task, particularly for persons who I do not know well. Second, my malpractice insurance coverage likely does not extend to making decisions which are clearly medical and not legal in nature. Third, I really cannot promise that I will be available at the drop of a hat to fly to the hospital at the expense of other clients who have the right to expect that I will be diligent in performing work for them. In short, I don’t think it’s fair to my clients or myself that I take on such a role for people to whom I’m not closely related or who are not very close friends. It’s certainly not a role I would wish to assume unless I have known the client for a very long time.

When these situations arise in my practice, I strongly recommend the involvement of a willing geriatric care manager (GCM). These professionals are generally nurses or social workers by training. They have experience navigating medical systems, and physicians are going to be more comfortable speaking with a GCM about medical issues than to a lawyer. A GCM will also cost much less than an attorney to perform such tasks with a level of skill that a lawyer simply will not have. Not all GCMs are comfortable taking on such a responsibility, however.

But what about the situation where the unbefriended elder lacks the funds to hire a GCM? This is a situation which frequently occurs in nursing homes, where the elder’s funds have long been exhausted. As the article notes, there are some non-profits which will step up and have their GCMs or social workers serve, but identifying such organizations is not easy. If there is no health care proxy, then a guardianship may be required if the elder is no longer competent. Since Massachusetts does not have a public guardianship commission, the unbefriended elder will be assigned the next attorney or volunteer on the judge’s list of (usually) uncompensated guardians. This situation is, in my opinion, entirely unsatisfactory.

So… what to do? If you are an unbefriended elder, talk to a geriatric care manager about whether she would be willing to act as your health care agent, and don’t hesitate to ask whether she would continue to act in this role if you run out of funds. Have an elder law attorney draft a health care proxy which makes it clear that the health care agent has the power to authorize or not authorize types of treatment. Make sure you speak with your GCM regularly so that she can get to know you, your values, and your medical needs. But whatever you choose to do, pick your health care agent while you have the ability to find someone who will take care of you.

A different kind of graduation present

Congratulations! It’s graduation season!

Before you get too misty-eyed wondering when your baby turned into the lovely young woman or man standing on stage getting a diploma, you may want to consider a different kind of graduation present for the new graduate.

An estate plan.

The hard, cold reality is that once your child turns 18, you have no legal right to access your child’s medical, financial or academic information unless your child has given you such powers in writing. If your child does not have a Durable Power of Attorney (DPOA), Health Care Proxy (HCP) and HIPAA Release granting such powers over such information, you may have a crisis on your hands if your child becomes seriously injured or incapacitated and cannot care for himself.

If your child is seriously injured or decides to study abroad, you would need a DPOA to make sure that his bank account is managed, the lease on his apartment is cancelled, get access to his mail if he forgets to change his address, deal with his car insurance, control his student loans, and otherwise control all those matters which may require his signature. The DPOA would also allow you to bring suit on your child’s behalf if he is seriously injured in an accident and is unable to direct a lawyer. The DPOA also should give explicit authority to access academic records, so that you can deal with the college or university. Without a DPOA, you will need a conservatorship from the Probate Court to manage an incapacitated child’s affairs, which is never a quick-and-easy process due to procedural requirements and the cutbacks in staff at the courthouses.

The HCP and HIPAA Release grant you access to your child’s health and medical insurance information. This access would be crucial if your child is seriously injured and unable to speak for himself. Without that access, you would be forced to seek temporary  guardianship in the Probate Court. Even though Massachusetts has an after-hours emergency system so that there is always a judge on call, precious time can be wasted while trying to get all the paperwork in place for a temporary guardianship.

And if (God forbid!) your child should die, having a basic will which nominates you as personal representative of his estate and leaves specific direction about to whom he may want to give his possessions.

The cost of a basic estate plan is usually modest, and well worth the peace of mind which it will give you once you drop off your child this fall at his dorm.

Your end-of-life plans won’t work if you don’t talk about them

The headline seems obvious, right? But unfortunately, failing to tell your loved ones what type of care you would want if you suffer from an illness which will eventually lead to your death is all too common. The Boston Globe had an essay a few weeks ago, which was written by a young physician who had observed the results of a failure to communicate:

Mrs. M found herself at home, unable to breathe. Her husband called 911 and she was rushed by ambulance to the emergency room. As her shortness of breath worsened, all she could say was “help me.” The medical team immediately jumped into action ordering blood work and a chest X-ray, placing an IV line and administering antibiotics. Eventually, anesthesia was called to insert a breathing tube and Mrs. M was placed on a ventilator because she could not breathe adequately on her own. Unfortunately — and unbeknownst to anyone present — this was not the type of help she sought.

Mrs. M had spent the last few months under the care of a hospice nurse with whom she had developed a close relationship. On several occasions, she explained to this nurse that she had no desire to be placed on a ventilator again, as she had been so many times in the past. The next time her lung disease worsened, she wanted medicines to make her comfortable so that she would not feel the awful sensation of ‘air hunger’ that accompanied her severe shortness of breath. She knew that her lung disease was slowly killing her, and she hoped to spend her final days at home, comfortable and at peace, rather than in a hospital hooked up to a machine.

 

To ensure that her wishes would be met, Mrs. M designated her husband as her official “health care proxy” should she lose the ability to make her own decisions. In Massachusetts, this involves signing a document designating a spouse, family member, or friend to take responsibility for health care decisions if an individual is unable to do so. When we as doctors can no longer communicate directly with a patient because of their mental or physical illness, we seek the advice of the health care proxy so as to best honor our patient’s wishes.

 

While Mrs. M had outlined her desire for comfort-focused medical care to her nurse, she never broached this difficult subject with her husband. He was unaware that she never wanted a breathing tube or ventilator, or to be re-admitted to the hospital. Only later, after speaking with Mrs. M’s nurse, did he understand how much his wife had quietly suffered from her disease and why she hoped to pass naturally at home rather than in the midst of aggressive medical care.

You can’t blame the doctors for taking action if you do not communicate your wishes to your health care agent. I’ve had conversations with clients who wanted to name their children as their health care agents but were reticent to have candid discussions about the full extent of their medical problems or did not want to have a difficult conversation about death. At the same time, there are some adult children  who simply cannot stand the thought of having to talk to their parents about the parents’ eventual demise.

But at the same time, even when you communicate with your primary care providers (here, the hospice nurse), it doesn’t mean that those wishes will be passed on to other doctors and hospitals. There is a new tool in Massachusetts called MOLST (Medical Orders for Life-Sustaining Treatment) which promises to help. Unlike a health care proxy, which is a legal document, a MOLST is supposed to be entered into the medical record of a patient facing late-stage illness. The MOLST form contains specific information completed by the treating physician and patient concerning the patient’s desires for how end-of-life care should be managed under different scenarios. MOLST is being gradually rolled out, with the goal of widespread use throughout the state by early 2014.

This sounds like a good idea — as long as the paperwork actually follows the patient in either electronic or paper form. I’m not convinced that will happen if there is more than one hospital chain in the area like there is in the Boston area. I’ll be interested to see how MOLST pans out.

Are you sure you want to be a fiduciary?

I regularly counsel my clients to be careful about who they name as fiduciaries — personal representatives, trustees, attorneys-in-fact and health care agents. Many reflexively name a spouse. Some of my clients want to name their oldest child, thinking that this is “naturally” the role for that person. Others may want to name their favorite son or daughter.

Naming someone as your fiduciary is not doing them any favors — you are asking a loved one to take on what may be an time-consuming, thankless task — usually for no pay. I always tell my clients to talk to that person long before they ever sign the documents to be sure they are willing to take on the job.

I’ve learned from experience that sometimes does not happen.

Every estate planning and elder law attorney will sooner or later have a case where a named fiduciary elder turns out to be unsuitable for the task or simply did not want the job. That’s one reason why well-drafted estate planning documents name back-up fiduciaries. So what if you’re one of those reluctant or unwilling fiduciaries?

First,do you have difficult feelings about the person naming you? Be honest about this. No matter how well equipped you may be to handle the mechanics of the job, you may not be the right person if you harbor significant anger or resentment. This is particularly an issue where the person is still alive and you will have ongoing contact with him — for example where there is a familial history of alcoholism or emotional abuse by the parent. There is nothing shameful about admitting that you’re just not the right person for the job. Give yourself permission to say “no” if you believe you will not be able to remove your unresolved feelings from the tax at hand.

Second, understand what is being asked of you. Ask to see the document naming you as fiduciary and read it. Can you candidly say that you understand the demands which will be made of you? Do you have a good, unemotional, understanding of your parent’s situation and what the future may hold for her? Do you have the time and energy to do the job properly? If you understand the task and are truly able to do it, are you willing to identify and  delegate tasks to appropriate helpers?  Will you consult paid professionals to provide you with guidance and service as appropriate?

If you learn that a relative is thinking about estate planning, discuss your thoughts with her about who would be an appropriate fiduciary for them. If you don’t think you’re up for the task, say so. If there is no back-up and the relative no longer has capacity to nominate a new fiduciary, you may need to go to court to ask that someone else be named in your place.

Time for the Second Annual Get-Your-Graduate-to-Sign-A-Power-of-Attorney Lecture

Those of you who were reading my blog a year ago…. go have a cup of tea.

The rest of you…. pay attention.

There’s a good chance you know a kid who just turned or is about to turn 18. You may be attending her high school graduation in a few weeks. Guess what… that kid is or is about to become a legal adult. That means Mom and Dad have NO legal right to access her financial information, school records, or talk to her doctor.

So? You may shrug.

Well, what if there’s an emergency? What if Suzy is involved in a car crash and gets seriously injured? Who will have the right to deal with the auto insurer? Medical insurance? Sue the other driver? Tell the college that she’ll need to take a leave of absence? Unless Suzy has signed a durable power of attorney, a health care proxy, and a medical information (or HIPAA) release… no one. If Suzy’s injuries leave her in a coma, the hospital may not listen to the parents unless there’s a health care proxy in place — forcing them to go to court to seek a guardianship.

Or… what if Bobby is still in school and receiving special education services? Under federal law, the parent’s right to advocate for Bobby and approve the education plan dies at age 18 unless Bobby signs a power of attorney authorizing the parent to engage in such matters, Bobby is legally on his own and at a distinct disadvantage in negotiating for his schooling.

Most attorneys will prepare these documents for a modest fee. Just make sure that it gets done.

When the truth doesn’t serve your goals, scare them to death.

Section 1233 of the House health care reform bill provides Medicare funding so doctors can be paid for a voluntary conversation with elders, who can be given “an explanation by the practitioner of the continuum of end-of-life services and supports available, including palliative care and hospice, and benefits for such services and supports that are available under this title.”

Now, you may not agree with the health care reform bills. You may not even agree that it’s needed or desirable. But are the national Republicans and their pals in talk radio so intellectually and morally bankrupt that they’ve resorting to this reprehensible garbage in an effort to kill health care reform?

But on right-leaning radio programs, religious e-mail lists and Internet blogs, the proposal has been described as “guiding you in how to die,” “an ORDER from the Government to end your life,” promoting “death care” and, in the words of antiabortion leader Randall Terry, an attempt to “kill Granny.”

People need facts to make informed choices. Doctors and nurses are trained to present information about options for treatment in a manner which encourages patient autonomy. Whether the medical provider personally agrees or disagrees with your decision is not legally or ethically relevant. What is relevant is that the patient receives the data needed which in combination with one’s own religious or moral viewpoint, will lead to an informed choice; and then have well-drafted advance directives which communicates that choice with treatment providers and loved ones included with your estate plan. Not only will you get the care that you want to have, but you make sure that your loved ones aren’t forced to go to court to seek guardianship in order to authorize such care.

But then, what we’re seeing is the opposite of intellectual honesty.

The attacks on talk radio began when Betsy McCaughey, who helped defeat President Bill Clinton’s health-care overhaul 16 years ago, told former senator Fred D. Thompson (R-Tenn.) that mandatory counseling sessions with Medicare beneficiaries would “tell them how to end their life sooner” and would teach the elderly how to “decline nutrition . . . and cut your life short.”

House Minority Leader John A. Boehner (R-Ohio) and Republican Policy Committee Chairman Thaddeus McCotter (Mich.) said they object to the idea because it “may start us down a treacherous path toward government-encouraged euthanasia.”

Remember, these are many of the same people who rammed a measure through Congress endorsing the State of Florida’s effort to keep Terri Schiavo alive, arguing that the legislature should interfere with the acts of her legal guardian and the courts because she didn’t have a living will. So, by this shameless logic, paying doctors to have voluntary discussions with their patients about medical options and advance directives leads to earlier, state-sponsored deaths, but it’s perfectly all right for legislators to interfere with the most painful discussion a family can have because there was nothing in writing to tell a doctor what to do.

Progress on promotion of advanced planning

The American Bar Association’s Commission on Law on Aging reports that the Secretary of the US Department of Health and Human Services has sent a comprehensive report to Congress entitled “Advance Directives and Advance Care Planning.” The report, requested by Congress in 2006, focuses on (1) the best ways to promote the use of advance directives and advance care planning among competent adults as a way to specify their wishes about end-of-life care; and (2) addressing the needs of persons with disabilities with respect to advance directives.

The report thoroughly reviews the literature on “every aspect of advance care planning, analyses of key ethical and legal issues, and a discussion of opportunities to enhance the effectiveness of advance care planning and advance directives. The report is particularly timely as health care reform is in the public policy forefront, and several bills are pending on the Hill regarding advance care planning and improving care near the end of life.”

Charlie Sabatino, Esq., the head of the ABA’s Commission (and someone I feel privileged to know) has written a comprehensive analysis of the legal and public policy issues. I look forward to reading Charlie’s analysis.

They’re off to college! But can you help in case of emergency?

Great post in one of the blogs at boston.com about an commonly-overlooked issue. A parent’s ability to help their child with medical issues — like acting as an advocate in the event of an illness — ends when the child turns 18 unless the child has signed a health care proxy and HIPAA-compliant release for medical information. If these documents aren’t signed and on file at home, with your kid’s doctor and at the student health service, you may not be able to help your child get critical care in the event of a medical emergency.

Similarly, your child needs a durable power of attorney giving you legal authority to access her bank and credit card accounts and to make legal decisions. For example, if your child is seriously injured in an accident, you don’t want to have to go to court for a conservatorship just to sue the idiot who ran the ran the red light! The DPOA will allow you to help when help is needed most.

Medicare may pay for advanced directive counseling by physicians

By a veto-proof majority, Congress has just passed an amendment to Patient Self-Determination Act of 1991 which would include counseling concerning advanced directives as part of the “initial preventive physical examination” (IPPE), a once-in-a-lifetime benefit given to all new Medicare beneficiaries under Part B. 42 U.S.C. 1395x(ww). In other words, physicians will get paid to raise the issues concerning the choices to be made where further efforts to cure disease in the course of the examination.

Sounds like a good idea… but as a practical matter, primary care physicians are economically pressured by both Medicare and private insurers to maximize the number of patients which they can see in the course of a day. Thanks to Ted Kennedy’s unexpected vote last week, the Senate passed legislation replacing the 10.6% pay cut for primary care physicians that went into effect on July 1 with a 0.5% raise through December 31, 2008. (Payments will rise by another 1.1% for calendar year 2009.) This raise is miniscule compared with the payments Medicare makes to specialists. New doctors are avoiding going into geriatrics and primary care because they can make more money in radiology or plastic surgery or other specialties with higher reimbursement rates.

I have to wonder whether, even though physicans will get paid something for counseling about the end-of-life issues, if those discussions will get short-shrift in some cases. Further, these discussions have to be held again and again, as the older patient’s attitudes about treatment and death frequently change as health deteriorates over time. I see no promise that physicians will get paid to raise these issues as the patients’ needs change.

Further, will Massachusetts physicians counsel patients about what can happen if the health care agent or a nursing home or hospital ignores those directives? Massachusetts is one of three states in the US where advanced directives –giving specific directions for care outside a health care proxy — are NOT legally binding. Some physicians may not be aware that there is a procedure to enforce the health care proxy in the Probate Court. These issues concerning patient rights are legal as well as medical — are the doctors going to be encouraging their patients to see their friendly local elder law attorneys? I think not.

source:http://www.medicalfutility.blogspot.com/