The Cultural, Social and Socioeconomic Aspects of Elder Law

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Harry Moody’s page about medical model for elders


In case you’re wondering about the origin of this post, it is the title of a continuing legal education panel I participated in last week which was sponsored by the Boulder County Bar Association.  Other participants were elder law attorneys of diverse backgrounds including Ayo Labode, Jodi Martin and Lorenzo Trujillo and the panel was moderated by Martha Ridgway.  A focus of our conversation was about the challenges in meeting our clients where they are now, and recognizing from where they have come.  Listening carefully is an important skill in this regard.  Each of us was asked to contribute a useful document for the materials.  I chose an old favorite of mine from the University of New Mexico – the Values History: A form to assist you in making health care choices in accordance with your values.  This important document is available online in pdf format for free download here.  There are other resources from the ABA that are also helpful to start the difficult conversation about end of life choices.

For today’s post, I will focus on the health care questions in the context of the cultural and socioeconomic factors that affect each of us – whether it is from our family of origin, our family of creation or our family of choice.  I’ll start with the history of informed consent.   Informed consent has simple and more nuanced definitions that are situation dependent.  I will quote from a good overview I found from the University of Washington School of Medicine, written by bioethicist Jessica de Bord:

What are the elements of full informed consent?

The most important goal of informed consent is that the patient has an opportunity to be an informed participant in her health care decisions. It is generally accepted that informed consent includes a discussion of the following elements:

  • The nature of the decision/procedure
  • Reasonable alternatives to the proposed intervention
  • The relevant risks, benefits, and uncertainties related to each alternative
  • Assessment of patient understanding
  • The acceptance of the intervention by the patient

I have previously blogged about the tragic history of “informed consent” in the context of World War II, the Nazi doctors and the Nuremberg trials.  In this country we have the recent and shameful legacy of the Tuskegee Study, which is a legacy of the disenfranchised that informs many African-Americans’ experience of our health care system and the allocation of its resources.  I thank my friend and colleague Ayo Labode for including reference to this study in her comments at the CLE.

The Tuskegee Study took place in Macon County, Alabama, where 600 poor and illiterate African-American men were enrolled in the study.  The men were offered many things for their participation, including medical exams, meals on exam days and burial stipends.  The study was commissioned by the U.S. Public Health Service and it was called the “Tuskegee Study of Untreated Syphilis in the Negro Male.”  What the participants (and their families) didn’t know is that the study, begun in 1932 and concluded in 1972, was non-therapeutic.  This nontherapeutic study continued even after the introduction of penicillin as treatment for syphilis by 1947, but none of the participants were offered or given the treatment.  In 1972, an Associated Press journalist broke the story of the 40 year long nontherapeutic study.  In 1997, President Clinton gave an apology for the study.  Here is an excerpt from the President’s remarks that is particularly relevant to the topic of this post:

The legacy of the study at Tuskegee has reached far and deep, in ways that hurt our progress and divide our nation.  We cannot be one America when a whole segment of our nation has no trust in America.  An apology is the first step, and we take it with a commitment to rebuild that broken trust. We can begin by making sure there is never again another episode like this one.  We need to do more to ensure that medical research practices are sound and ethical, and that researchers work more closely with communities.

So in order for each of us, as people and as elder law attorneys working in a field with so much psycho-social and emotional content, to be able to respect each others’ differences – we first must recognize them.  Each of us, as adults, needs to confront the difficult questions of who we will choose to be our surrogate decision-maker (agent under a medical POA) in the event we are unable to decide, and we need to talk about what we want in end of life care.  If we are to honor our self-determination and autonomy in our dealings with the medical-industrial complex, we must take the necessary steps now.   This will be my final installment on the May is Elder Law Month theme for this year.

©Barbara Cashman 2014

Guest Post by Karen Moorehead: You Promised to Take Care of Them. No One Said It Would Be Easy…

Karen Moorehead, ElderLink Home Care

Karen Moorehead, ElderLink Home Care


I recently met with Karen Moorehead, the owner of Elderlink Home Care, Inc and she agreed to write a guest post.  Aging in place is a familiar buzzword today, but many people don’t know what it really means until there is a crisis in their own life or a dear one’s life and assistance is needed to help support independent or supported living in a home setting. Karen is passionate about helping seniors achieve their goals of aging in place.  Elderlink has been serving seniors throughout the Denver-metro area since 1988. 

Sometime, maybe years ago, when your parents were younger and healthier, you may have made a promise that you would always take care of them. You may have made the promise to your parents or just to yourself. It was easy when taking care of them meant one to two visits a week, taking them to appointments and helping with things around the house.  Now as your parents are aging and their needs are increasing, you will need to figure out if you are able to keep that promise and exactly what it will mean to you.

Coming to the realization that your parent may need more care than you are able to give is not easy. You may feel an enormous sense of guilt and even failure for your inability to care for your aging parent. Are you doing enough? Can you do it all? If you are not able to be the sole caregiver for your mom or dad and have to arrange for outside help, those guilty feelings can be magnified. Hiring outside help for your parents may not have been what you had in mind when you made your promise, but is important not to put off doing what is best for your parents because of feelings of guilt.

Being a caregiver requires a large investment of both time and emotion. Today’s sandwich generation often has children, maybe even grandchildren at home and is likely to still be working. Being a caregiver for your parent may not be a possibility. The ability to understand your limits and to set limits with your parents is crucial. If you do not look after your own health and wellbeing, you will not be able to help your parents. Looking at it this way, you can see that it is your responsibility to create a balance between your interests and the interests of your parents.

Acknowledge your feelings of guilt and other emotions that usually accompany it.  Emotions such as anger, resentment and stress are common among caregivers. Pay attention to which feelings may be unjustified, or just a result of you putting unrealistic expectations on yourself. A good stress-reducing tool is to talk with other caregivers, maybe join a support group.  When people feel safe, as they often do in a group, they let down their guard. They can admit that they feel the same way. Learn to be kind to yourself. There will be good days and bad days.

Recognize that we all have different strengths and weaknesses. Some of us are better suited towards caregiving and empathy; others might be better at organization, keeping paperwork and finances in order and tasks around the house. If you have siblings, encourage your siblings to help in ways that best utilize their strengths. Do what you can to help and don’t beat yourself up for everything you can’t do.

Your parents cared for you, it’s natural that you want to care for them. And, yes, you promised to take care of your parents. That doesn’t mean you promised to provide them with all of the care they need yourself, it only means that you will ensure that all of their needs are being met.  Arranging care for your parents to ensure that all of their needs are being met is honoring the spirit of your promise.

This Week: Small Business Week and Elder Law Month

An Irish Ruin

An Irish Ruin

This is an interesting combination topic – don’t you think?  Perhaps you might be thinking that I am taking this whole “theme” thing a bit too far.  Putting together the “Happy Small Business Week” (which I learned about from my Google page on Monday) and Elder Law Month. . . .  Isn’t this a bit of a stretch?!

Why no, not at all!  In fact many folks in the second half of life are shunning retirement in favor of . . . . “risky startups.”  Read the January 7, 2014 Bloomberg article about this here.  It’s no surprise to learn that job opportunities for folks over 55 are “limited” but it was surprising for me to learn that the number of people aged 55-64 has been increasing, with a full 23.4% of them starting their own businesses in 2012.  What is prompting people to do this?  Many have discovered that the retirement benefits that many of our parents enjoyed are simply not on the table anymore.  Couple that with a lifelong yearning to work for yourself, and there you have the boomer startup!  The Small Business Administration is well aware of this trend and has targeted free resources available for this cohort.

Last month I was pleased to present the CLE program at the monthly meeting of the Elder Law Section of the Colorado Bar Association.  My friend and colleague Rick Mishkin gave me a very kind introduction and revealed publicly my secret desire to be a talk show host . . . .!   He was generous enough to update the title of the solo/small firm disability and death planning presentation I have given a few times now to “The Death You Need to Plan for Should Be Your Own.”  As it was the elder law section, which is an interdisciplinary group, there were a few professional fiduciaries who attended the program and a couple of them (one of them a finance person and the other a professional guardian) noted that the materials I shared were helpful to them as sole proprietors who wanted to have some succession or disaster planning in place.  A bar staffer told me the materials would be available on the bar website. I am happy to share these resources with other solo professionals who are so inclined.

Among the small business startups by those underemployed boomers or boomers who just aren’t ready to be retired can be found more than a few businesses targeted at the elder care services field.  There are businesses that are founded on services that most family members that traditionally were largely provided by family members.  With our modern-American and far-flung families, many elders have come by necessity to rely on service providers for many services and support.  In fact, the Eldercare Locator, a public service of the U.S. Administration on Aging has a handy website that can help locate local providers of services including information on Alzheimer’s Disease, health insurance, transportation, housing options, legal assistance and long-term care.  Many of those service providers are baby boomers who found that the service their parent(s) needed was not really available, and so many unique forms of assistance for elders were born from this necessity.

The boomers have a vested interest in how these business developments they are involved in turn out.  They are the “silver tsunami,” which is necessitating a reexamination of resource allocation in services that will be made available to the biggest ever cohort of elders in our country (and many other nations worldwide) has seen.  There are many dimensions of what has been called “the 2030 problem” of meeting the challenges to public policy placed on caregivers and public finances; and to focus only on economic challenges (like issues around raising tax rates while tending to economic growth of service costs at the expense of other forms of social investment along with tending to the well-being of future generations of workers) may be misleading in its simplicity (or not).  This topic is not at all an easy one to identify and discuss, let alone come up with what might be “solutions.”

Another excellent online resource is the American Society on Aging.  On their site is a tab called “business and aging.”  Turns out there are a few discussions of the topic outlined above – how long should a boomer work; will there be enough caregivers to go around when we need them; and what about long-term care insurance issues . . . ?  My favorite item on this site is a video by Katy Fike, Ph.D., a member of the ASA’s Board of Directors entitled “Ten Innovations that Could Change the Way We Age.”  Spoiler alert: one of them is the Google self-driving car!  I think we Boomers have a lot to look forward to in our old age.

©Barbara Cashman  2014

In Honor of Elder Law Month: The Law of Aging and the Study of Aging


Glass Dome of Ralph Carr Judicial Building

Glass Dome of Ralph Carr Judicial Building

May is national elder law month! As a member of The National Academy of Elder Law Attorneys, I proudly post a blog announcing this theme.  The law of aging? Do I mean physical laws, man-made or what – exactly . . .  Some of those, to be certain.  This another installment on my theme of looking at some of the effects of having so many more people around who are living longer than ever. I’ll start with what I know.  Elder law is a field of practice that is focused on the legal problems of the elderly.  It is not a practice area like securities regulation or DUI defense, where a practice is focused on a particular set of laws (including statutory and case law, along with regulations). No – elder law is a practice area concerned with the legal problems of people “over a certain age.”  Many persons who would be included in the group of “elders” would not consider themselves as such because they don’t think they are “old.”  As we all know, what is considered old is a sliding scale. For purposes of the federal Age Discrimination in Employment Act, the protected class of persons is people age 40 or older.  According to the new Colorado law for mandatory reporting of elder abuse, an elder is a person aged 70 or older.  So you can see that the legal system doesn’t have a clearly defined number when it comes to defining “elder.”

Gerontology is the study of aging and older adults. I am borrowing from the useful definition I found at the Institute of Gerontology at the University of Georgia’s College of Public Health.  They offer a further definition, one that is being updated as we go along:

The science of gerontology has evolved as longevity has improved. Researchers in this field are diverse and are trained in areas such as physiology, social science, psychology, public health, and policy.

A more complete definition of gerontology includes all of the following:

  • Scientific studies of processes associated with the bodily changes from middle age through later life
  • Multidisciplinary investigation of societal changes resulting from an aging population and ranging from the humanities (e.g., history, philosophy, literature) to economics; and
  • Applications of this knowledge to policies and programs.

Gerontology is a multi-disciplinary approach to the study of aging using research methods and applied science.  They didn’t specifically include law in their definition, but I am confident that the development of elder law is part of the evolution of the field of gerontology just as it helps inform the multidisciplinary investigation of the burgeoning number of elders in this country.  I haven’t looked into the career opportunities in gerontology, but I have been interviewed by a couple M.A. students from the University of Northern Colorado.  At first glance, I would imagine that there are many opportunities in this burgeoning field but that because it involves work with elders, it is not highly remunerative.  I did find that UCD offers an adult gerontology nurse practitioner certification.

The doctors serving the population of elders are diverse in their specialties, but the area focusing on the medical and health care needs of elders is known as geriatrics.  It is broad in scope and by its nature (at least in theory) looks at the whole person, with a view to maintain functional independence and self-determination.  Geriatricians are board certified in internal medicine or family medicine and have obtained a certificate in geriatric medicine.  At many geriatric doctors’ offices you can find a team that supports the doctor which might include: nurses, social workers, nutritionists, physical therapists, occupational therapists and other who have special training or experience in treating or working with elders (older adults).  As the baby boomers age, and many of the cohort include geriatric doctors and their staff, there may be a shortage of people equipped to treat this growing number of people.

Some of challenges of an aging population include the medical treatment of diseases associated with aging, and many of these have legal consequences.  Some of the diseases and conditions are Parkinson’s disease, different forms of dementia, diabetes, neurodegenerative disorders, heart disease, arthritis, osteoporosis and hypertension, to name a few.  Chronic diseases that so often in the past led to an early demise are now being managed more successfully.  Likewise, we are facing new medical challenges as a result of aging and its complications.

I recently met with someone who runs a local home care service.  These types of services can be key to allowing elders to age in place in their own homes by making it possible to stay put with the assistance provided by supportive services of providers who come into the home.  Many times people can stay at home and avoid altogether any period of needing to move to a residential facility that offers such services or institutionalization.  One of the topics we discussed was Colorado’s mandatory reporting law, which is now in effect and requires – beginning July 1, 2014 – the mandatory reporting of suspected elder abuse.  While we both strongly agreed that it was about time that Colorado had such protections in place, I mentioned to her that putting elders (people 70 and above) in a class of people does have certain implications for ageism and civil rights.  Don’t get me wrong – I think these protections and wider enforcement of the law are overdue, I just recognize that this area of the law – of determining whether an elder has been abused or exploited by another – contains a fairly large gray area.  The treatment of elders with dignity and respect in a way consistent with their civil rights and protecting them from and allowing fuller redress of exploitation and wrongdoing of others may be a bit of a challenge in many cases, where protection might really mean paternalism.  I will write more on this topic.  As far as I’m concerned, it is a new frontier of civil rights.

 ©Barbara Cashman  2014