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.

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.