May is Elder Law Month!

May is Elder Law Month, so today’s post will commemorate this effort to draw the public’s attention to the legal problems of the elderly.  Because it serves the population of elders, elder law is a broad practice area and often overlaps or intersects other areas of law practice – like disability law, government benefits, discrimination and criminal law.

Elder law is also a niche practice area because it involves working with elders and an aging population in different areas of the law.  Many of us work with elders who have physical challenges, some cognitive impairments and other difficulties, and we are together charting a new course for extended longevity and engaged and dignified elderhood.  From my own perspective, working with elders gives me some unique and rewarding opportunities to work with people.  I often provide counseling – as many other types of lawyers do, but counseling in elder law typically involves a number of nonlegal considerations which factor into the mix of legal questions which must be addressed.  To my mind, the best description of this approach is “holistic.”  In short, elder law practice is pretty “touchy feely” and I wouldn’t have it any other way!  It demands well-honed listening skills from the attorney/counselor and requires a cultivated compassion for people and the situations in which we can find ourselves.  Yes, of course I must mention a requisite fluency with the legal concerns in this area . . .  which are frequently changing and evolving and while mostly based on state law, are often impacted by or driven by federal law as well.

The times have changed and many living arrangements of elders reflect this.  Legal challenges for elders and their attorneys are ever changing and developing.

Improvements to quality of life for elders abound, but many challenges remain.  Some of these include:

  • Employment issues and age discrimination
  • Housing availability, affordability and appropriateness
  • Longevity, retirement savings, social security and financial security
  • Health care and self-determination
  • Living longer and forging relationships with loved ones
  • Dignity and freedom from exploitation and abuse
  • Protective proceedings in probate court (in Colorado these are known as guardianship or conservatorship proceedings)

As a member of the National Academy of Elder Law Attorneys, I have access to helpful information on these topics in the form of NAELA brochures which I am happy to share with readers.  Just drop me an email!

On the more philosophical and artistic side, take a look at this ancient mosaic recently uncovered in Turkey which depicts a skeleton and reads “be cheerful and live your life.”  A timeless message to be sure – to be grateful to be alive and to have the opportunity to live one’s own life, and not that of another.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

 

Medical Durable POA and Mental Health Services – a Volatile Mix

Orca near Vancouver BC

Orca near Vancouver BC

 

The medical durable power of attorney (MDPOA) is an important document that all adults should have.  Why? As our population ages and our longevity is extended, our chances of becoming unable to give informed consent for medical care increase.  I have previously written about informed consent in the context of medical care, but suffice it to say that when a person is unconscious, unable to communicate or otherwise too “out of it” to give informed consent to decide yes or no to a proposed course of treatment – it is extremely helpful to have a substitute decision maker named who can decide for you.  In this post, I will not revisit the smorgasbord of health care planning documents as I have done previously, but I will instead focus on a much more obscure and troublesome intersection in the elder law field: where persons attempting to assist with the requested care of an older adult who has previously been diagnosed with mental illness can get caught in a thicket surrounding access to the mental health information.

Why is this a big deal – can’t an adult (known as a “principal” in power of attorney terms)  with mental illness simply designate an agent under an MDPOA just like any person, assuming that person is not under a legal disability such as a guardianship?  Surely I am remembering that guardianship is not automatic by any stretch for an adult with mental illness or with developmental disabilities. . .

The answer is yes, but . . . well, it can be a bit more complicated than that.  As more adults – especially the aging baby boomer cohort – reach retirement age, there are more people who will have benefited from a more open attitude toward the provision of mental health services in this country.  Just because there are mental health diagnoses doesn’t mean they have to overly complicate that person’s naming of an agent under a health care power of attorney, but they sometimes result in that.  Most of us don’t think about this aspect in the context of “health care” and the MDPOA, but there are important details that can trip up our longevity planning and complicate access to information and assistance for an adult which otherwise might easily be provided by family members or other loved ones on whom we rely.

What does this scenario look like?  This doesn’t come up  very often, but when it presents itself, it is often very challenging to sort out and even more difficult to come to an arrangement that meets the needs of all those involved.  On a continuum, the most straightforward situation is with a family member who is seeking to name, in writing, particular persons as his or her agents.  In this scenario, it is a good idea to have a customized MDPOA which sets forth the scope of the agent’s powers, so it is clear that they include mental health matters.  Where it gets much more difficult is where the adult may want to name an agent but doesn’t feel clear about the mental health decision-making authority or where the person’s capacity to execute a MDPOA may be in question.  The most challenging situation is where a concerned family member seeks to petition the court regarding an elder adult, who might otherwise be a person who is incapacitated under the guardianship statute, and for whom a doctor’s letter would generally substantiate the nature, extent and cause of the incapacity, except that if mental illness is the primary diagnosis, then much different protocols apply to the protection of that information, and there may also be warranted a different type of proceeding in the probate court.  Let’s take a closer look at some of these issues.

Here’s a link to an overview of the treacherous terrain involved here.  There is also something known as a psychiatric advance directive (PAD).  In Colorado this means that a MDPOA may have instructions, or instructions may be given to the agent named in the MDPOA which specifically relate to the provision of mental health services, including psychiatric medications or hospitalizations.  These instructions must appear in the MDPOA as they may not otherwise be recognized in a “stand alone” document.

Some of the problems originate in the different sources of law – federal law of the Health Insurance Portability and Accountability Act HIPAA relating to protected health information, for example, and state law relating to protective proceedings (guardianships and conservatorship) and mental health proceedings. The appointment of an agent under an MDPOA is governed by state law.

HIPAA is a federal statute which has had a tremendous impact on health care providers since it was promulgated in 1996.  My own MDPOA form refers to the regulations (from the Code of Federal Regulations) which cover the statute’s provision regarding who is a person to whom information can be released.  The codified HIPAA rules cover protected health information and its access, including electronically transmitted health records and require consent for the disclosure of such information to third parties.  Where an agent is named to make decisions on behalf of the principal and the principal cannot give informed consent to treatment, the agent obviously requires access to the medial information in order to make a decision about treatment options.

Mental health matters are generally governed by state law.  In Colorado, a statute governs the particular types of providers in the mental health field, including psychologists, social workers, counselors, therapists and others.  See C.R.S. § 12-43-101 – 805.  Note that HIPAA gives an exception to the general rule requiring consent prior to sharing of information regards “psychotherapy notes” which are a special form of protected information and the regulation is fairly detailed.  See 45 C.F.R. § 164.508(b), (c).

The connection between federal HIPAA law and state mental health legislation and other sources of law generally concern the disclosure of information.  While HIPAA is a comprehensive federal statute, it is not designed to preempt state law.  The CFR relating to substance abuse regulation (which fall under the umbrella of mental health for HIPAA purposes) provides that the federal law is designed as a “backstop” of sorts in that if the state law is more protective, it controls, otherwise the federal law often provides the minimum standard.

There has been some recent criticism of Colorado’s rules relating to what constitutes an “imminent danger” for purposes of an involuntary commitment (a/k/a 72 hour hold).  Finally, for more information, see this article about HIPAA and mental health records.  That’s all for now, stay tuned for developments.

©Barbara Cashman  2015   www.DenverElderLaw.org

Advance Health Care Planning and the Death Taboo

Summer Flowers

Summer Flowers

Early on in my blog on this website, I wrote a post entitled Law as a Healing Profession, which included a discussion of a law review article by Mark Glover, author of  “A Therapeutic Jurisprudential Framework of Estate Planning.  So I turn again to the big picture of our culturally-accepted death denial and look at the context for some documents that lawyers often prepare to help clients cope with this uncertain enterprise known as life.  Yep, there’s another law review article I’m considering as well – this one entitled “In Denial: The Role Of Law in Preparing for Death,” by Barbara A. Noah and published at 21 Elder L.J. 1(2013) and which you can read here.

Many baby boomers are facing end of life questions and responding with a conversation with family members or loved ones about their wishes.  This is a very positive step.  The conversation must be had many times over the course of our lives, so we know what we want and communicate those wishes to others.  There are different motivations for these important conversations, which are often the result of unsettling experiences around an elder parent’s death, and which compel a person to do things differently.  These conversations are important and invaluable for families and communities, however there is still much death denial.  For a different treatment of the question of death denial, read “Confronting the Cadaver: The Denial of Death in Modern Medicine.” Death denial is found in many places in our culture, it is particularly prominent in our technology centered medical model.  How we have come to be estranged from death has much to do with the fact that most of us don’t have much experience with family members dying at home as this is typically left to the medical professionals to manage, which separates us from the passing of a loved one and what we often feel as our helplessness in the face of encroaching end of life.  The fact is, no one, no institution or technology can protect us from death.

Whose denial is it anyway?  It isn’t just a modern American phenomenon – the death taboo has relevance in many aspects of other cultures and traditions.  Wellness, disease and dying can also be understood in the broader context of medical anthropology, which often informs thinking around the dying process and death.

But even amidst the further study of death denial and criticism of its power to alienate us from life – has much really changed since Ernest Becker’s groundbreaking 1973 book The Denial of Death,  where Becker attributed the materialistic high-tech nature of modern life (I would call it post-modern, to be more precise) that left us in the shallows searching for the meaning, the missing depth of life in the context of inevitable death.  Fear and anxiety are like sharks there in these shallows, terrorizing many of us into a state of helplessness and feeling out of control.  It is one vicious cycle.  In our autonomy-valuing, action-based view of choosing what our lives are, isn’t death the ultimate indignity, particularly when it comes at the end of a disease which we may view as being one that robs one of autonomy and dignity.  Yes, I’m thinking of the ill-fated “death with dignity” bill that made it to a second reading in our legislature in Colorado.  The whole idea behind the “dignity” described in that proposed legislation was to preserve the dignity of a person’s ability to choose, to do something in response to the indignity of disease and its quality of life robbing advance.  This is human dignity that is focused exclusively on the “human doing” and not the “human being” so to speak!

Whose death is it which we confront?  Can we really be present for another’s death if we don’t really know how to do that?  Here’s an article from a nursing journal about death anxiety.

There are many other interesting developments taking place in many communities across the country which respond to the alienation from death by making it part of our lives once again.  I’m thinking here of home care for a recently deceased person, a DIY funeral care in one’s home as well as wider involvement of those who have come to be known as “death doulas” or midwives to the dying.  You can read a recent New York Times article on this topic here.

I’m sure I’ll be writing more soon about how many of us are reclaiming the use of ritual around end-of-life care and the dying process and also the re-sanctification of the dying process…

©Barbara Cashman  2015   www.DenverElderLaw.org