May 1st is Law Day – Happy Law Day!

Law Day – what is that about. . . .? I haven’t seen the greeting cards to mark the occasion! The theme for Law Day 2013 is Realizing the Dream: Equality for All. This year’s commemoration is all about civil and human rights, the American Bar Association has some great resources available here.


This year’s Law Day is a fairly patriotic event in that it marks our nation’s long history in the struggle to honor and promote people’s civil and human rights. This year is the 150th anniversary (or sesquicentennial if you prefer that) of the Emancipation Proclamation. In Denver, our local and state bar associations are co-sponsoring a screening of the 2012 film Lincoln.  The event even has a CLE (continuing legal education for lawyers) component.
On the civil rights theme, I would like to have linked to a youtube showing the historic “I Have a Dream” speech by the Rev. Dr. Martin Luther King, but there is a bit of an intellectual property right issue there.
Sometimes lawyers forget why they went to law school and what the struggle for justice, still ongoing, is about. Law day seems to be an observance primarily for lawyers and bar associations, but it also has an important component of education about our legal system as well. Our system of justice cannot effectively function when people are not educated about their rights. In most of Europe and many parts of the world, May Day is not law day but is a commemoration of workers’ rights.
I looked up the history of Law Day in the US and discovered it was the idea of Charles S. Rhyne, President Eisenhower’s legal counsel and also president (the youngest person to serve in that capacity) of the American Bar Association. My connection with Charlie Rhyne? He started the World Peace Through Law effort. I attended the 1987 Seoul Conference on the Law of the World and served as rapporteur for one if its committee meetings. The organization is now known as the World Jurist Association.  International law is grounded upon the recognition of the rule of law among nations.
So, Law day and civil rights – where’s the elder law connection? I have previously blogged about the Universal Declaration of Human Rights in the context of elders’ rights.  For their part NAELA, the National Academy of Elder Law Attorneys (of which I am a proud member) has a press release here about their efforts and elder and special needs law attorneys’ efforts to educate their community about legal options. They observe the entire month of May as Elder Law Month.
So, you may not be thinking about the civil rights and the elderly and incapacitated when you consider civil right. But make no mistake – elder law is a hotbed for civil rights – why? Guardianship proceedings (as they are known in Colorado, in most state jurisdictions protective proceedings are known as guardianship of the person and guardianship of the property – for what is known as conservatorship in Colorado). As the number of elders continues to increase, we will need to develop more appropriate legal mechanisms to manage the gray area of defining incapacity. This is where the law evolves to meet the needs (that’s the goal at any rate) of a changing demographic and society.
How will I spend law day? I will be grateful for being a citizen of this great country where the rule of law is well respected. What is “the rule of law?” Okay, I skipped the definition in my trusty Black’s law dictionary – too stuffy sounding and like the Wikipedia one better: it refers to the authority and influence of law in a society, especially as a constraint upon behavior, including behavior of government officials.  When I was studying international law back in my law school days, this was a revolutionary concept in many legal institutions. In fact, it still is in many parts of the world. One of the best parts about being a lawyer is staying on top of developments and figuring out how to tailor these to meet a particular client’s needs. Estate and elder law provide me a wonderful opportunity to advise people about their legal options and counsel them in the context of what works best from their own legal, financial, medical and emotional point of view. I am grateful for my clients and I love being a lawyer. . I wouldn’t have it any other way.
I think it’s a fitting way to observe Law Day – even if it is spent with lots of boxes and the movers who will be moving my office from southeast Denver to Centennial, two miles south of my current office.
              My new address is 7955 East Arapahoe Court, Suite 3000, Centennial, CO 80112. My new direct line is (720) 242-8133.

©Barbara Cashman www.DenverElderLaw.org

Health Care Power of Attorney, HIPAA and Hospice

 

When someone asks me what a health care power of attorney or MDPOA (medical durable power of attorney) is for, it usually takes a bit of an explanation.  Sometimes I will talk about the roots of “informed consent” in medical treatment deriving from the Nuremberg trials.   World War II tragically produced many sound principles of international law.    In our country, we sometimes speak about rights and autonomy in the context of medical care, but longevity and medical advances have provided a new proving ground for patient autonomy.  We have the right to decide alongside the right to not decide.  Beyond the advance directive, which seems to have its own well-run PR department, few people are aware of the MDPOA and its significance and utility in today’s world of medicine.  Making treatment choices in advance becomes particularly important when a frail elder and family members face difficult decisions about treatment choices.  These matters are often made more difficult by the way our health care “system” works in this context, the Medicare context, where doctors are paid per intervention, often leading to worse outcomes for patients  those patients who tend to be over treated.  Indeed, when people make their wishes known to family member and empower another to decide for them in a MDPOA , that empowerment alone can often lead to better outcomes.    So empowerment about health care decisions, considering the “what happens if. . . “ along with the “what happens when. . . . “ can help give our lives meaning by considering the end of our lives – not just as a cessation of life but in the context of its meaning.

I’ll quote Ralph Waldo Emerson here

“The purpose of life is not to be happy. It is to be useful, to be honorable, to be compassionate, to have it make some difference that you have lived and lived well.”
Whatever your purpose is, make sure that you have the difficult conversation in advance.  It will ease your mind and the minds of your dear ones.  They will know what you want and will be much less inclined to select by default the heroic and futile medical interventions that are so often based on guilt, guilt flowing from the lack of knowledge of what the person would have wanted for themselves.

On the less philosophical and more practical front, whatever the documentary source of your MDPOA, you will want to ensure that it contains an effective HIPAA release.  Learn more about the Health Insurance Portability and Accountability Act of 1996 here.    Otherwise, your appointed agent may have all the authority to make decisions for you but effectively no access to your federally protected health care information.  I was reminded of this a few years ago when I visited a client in the hospital.  I asked one of the nurses at the desk if they had a MDPOA form available and they gladly supplied one to me.  It did not contain any HIPAA release. . . .

Just because you are a family member doesn’t mean you have HIPAA authorization.  You might be familiar with the codes that many hospitals now use regarding access to information.  The best policy is to have a MDPOA with a HIPAA release.  An interesting detail on the HIPAA front. . . . .  This is a recent development that is interesting as it involves digital health information, also known as “electronic protected health information” or ePHI.  It is the first settlement on record of a breach involving a provider with fewer than 500 patients.   The hospice involved was fined as a result of the theft of a laptop containing ePHI on which it had not adequately adopted or implemented security measures to ensure confidentiality of ePHI it created, maintained and transmitted using portable devices.  You can read the entire Resolution Agreement here .   Hospice providers generally make home visits to their patients and this is a cautionary tale about the threats of portable medical care and home visits.

A couple helpful resources for Coloradoans looking for more education about MDPOAs and advance directives include pamphlets available from The Colorado Bar Association at www.cobar.org and information from the  Colorado Advance Directives Consortium at www.coloradoadvancedirectives.com

©Barbara Cashman     www.DenverElderLaw.org

 

Longevity, Conflict and Meaning

 

I must be on a roll here thinking about conflict at the end of life.  In light of the recent 911 call from the independent living apartments in Bakersfield and other recent things I’ve read – this issue can use much more discussion.  I even posted a link to my Facebook page    about it.     I liked reading Charles Ornstein’s recent article in the Washington Post entitled “I thought I understood health care.  Then my Mom went into the ICU.”  Read it here.    Ornstein’s poignant and personal account of the difficult decision faced by his family after his mother was in a coma and certain decisions had to made is very instructive.  I hear  frequently from clients and family members who are health professionals  that their training makes these difficult decisions much easier.  I am not always so sure.  Some oncologists, for example, are much more focused on a patient’s quality of life at the end of the course of a long and devastating disease, while others prefer to operate in more of a “superhero” mode, vowing to never give up on a patient’s chances for recovery.  There is no right or wrong here – all of these decisions are difficult, even when we have a pretty good idea about the choice and preferences our loved one has previously expressed.  I think of my own experience with my parents’ deaths.  My father died in March 2010 after a long bout with a combination of an undiagnosed neurodegenerative disease coupled with what was later discovered to be metastatic prostate cancer.  I accompanied him to the doctor on many occasions and was his health care agent for the last nine months of his life.  My mother, his wife of 59 1/2 years, worked for many years as a Registered Nurse  – but this set of considerations and +decisions was a whole different ball game.

It is usually extremely difficult to talk with others about death, and this difficulty is lessened somewhat when the conversation is initiated by an older loved one who wants to make his or her wishes known.  This doesn’t often happen.  There are ways to start the conversation though!  It only becomes more difficult in the face of a life-altering illness.    I have worked with many people with terminal illnesses.  It is not any easier to consider end-of-life issues even if they are more “real” in light of a life-threatening disease.  Because I know how difficult it can be for a doctor to raise the issue of hospice care and associated palliative care or quality of life issues with a patient – the patient may believe that their doctor is “giving up” on them – I will often take the opportunity to discuss these issues when appropriate.  I think the questions are much less threatening when you are discussing them with your lawyer as opposed to your doctor.  These involve, after all, legal questions.  Elder law is such a fascinating mix of and intersection of legal, medical, financial psychological and cultural questions.

I also enjoyed reading “Managing Our Miracles: Dealing with the Realities of Aging” in the latest issue of Bifocal, the publication of the ABA Commission on Law and Aging    In this article, Monsignor Charles Fahey refers to “the third age” – the one that is part of human aging that is beyond human reproduction and physical strength – which has become profoundly extended in recent years.  I have blogged previously about Erik Erikson’s developmental stages   and his wife Joan’s extension of  “The Life Cycle Completed” which included her own chapter entitled “The Ninth Stage.”   I think old age and elderhood need to be examined and re-examined in our culture so that we have a more inclusive definition of what is our human “useful shelf life.”  Many of the clients I see, along with assistance from their family members – do an excellent job of meeting the challenges of increased longevity.  As I remind people, this new age of elderhood is something that affects us in a variety of new and sometimes surprising ways.  This longevity can provide opportunities to live parts of a life that had previously been unlived, or not – depending on each of our own unique circumstances and how we find meaning in our lives.   As Hermann Hesse observed:

There’s no reality except the one contained within us. That’s why so many people live an unreal life. They take images outside them for reality and never allow the world within them to assert itself.

Longevity challenges that, and we generally have no frame of reference for today’s longevity.  We can create this new stage of life within ourselves and share it with our loved ones.    Dementia can be a side effect of longevity for many of us or our family members or loved ones.  We make meaning in our lives and others in our ability to “do” often as some kind of proof of our existence.  Dementia can challenge all those beliefs and ideas about who we are, what it means to “be” simply and no longer able to “do” as we did for ourselves and for others before.  This is part of the new reality of aging and longevity.  More on this topic later. . . .

©Barbara Cashman     www.DenverElderLaw.org

Estate Planning for Someone With a Chronic Illness

A large factor in the burgeoning number of older people in our population is the successful management of chronic conditions and diseases.  Many chronic conditions and diseases are now, thankfully, routinely managed with regular medical care and pharmaceutical drugs.  Some chronic diseases can adversely impact a person’s ability to make a living during the prime earning years of their lifetime, and may cause periods of physical and mental disability and have serious emotional consequences as well.  Many people who are disabled as a result of chronic illnesses or conditions are not “seniors” and they face special estate planning challenges.

I recently had the opportunity to hear Martin Shenkman, a nationally recognized estate planning attorney, CPA and RV driver,  speak to a professional group to which I belong.  He had some very useful insights into legal, financial, medical and tax planning for those suffering from a chronic illness.  Shenkman’s wife Patti (an M.D.) was diagnosed with multiple sclerosis in 2006 and now he and his wife and their little dog Elvis (yes, he’s a chick magnet) spend some time traveling around in an airstream trailer so that Shenkman can deliver insightful and entertaining educational programs to professional planners (lawyers, CPAs, financial planners and insurance consultants) on  tips for advising clients and their families who are living with chronic illnesses including: ALS; Alzheimer’s Disease; Parkinson’s Disease; COPD and others.

Shenkman’s article “Estate Planning for Clients with Chronic Illnesses” is available here.  You can look at his numerous articles helpful for both consumers and professional planners here.  I especially liked his “holistic” or multidisciplinary approach to planning for individuals and individuals relative to their unique family situations,  and which addresses not only the legal issues but also financial, tax, health and lifestyle considerations of those facing chronic diseases and conditions.

In the legal context, chronic diseases and conditions can often impact a client’s capacity to hire an attorney, as well as the capacity to make a will or trust.  This is problematic in some progressive diseases in particular, such as Alzheimer’s and Parkinson’s, but also in MS or COPD, where flare-ups may implicate cognitive functioning.  Parkinson’s may also involve certain forms of dementia, and where there is depression with any of these chronic diseases, it can sometimes be masked in other symptoms.

People facing these diseases may be more motivated to consider planning for their future and to take care of their family.  Clients who are meeting with an attorney may want to make sure that their lawyer asks enough questions and that she or he listens carefully to responses.  What can sometimes happen is that a detail that the client thinks is not important is indeed important from a legal planning perspective. Some elder law and estate planning attorneys are more knowledgeable about and sensitive to medical conditions and diseases and how they impact a person’s life.  The average age of diagnosis for both Alzheimer’s  and Parkinson’s is 60 and over.  Both Alzheimer’s and Parkinson’s are progressive in nature – Alzheimer’s is a brain disease and Parkinson’s is a disease of the nervous system.  Both of these diseases present challenges for persons interested in taking care of themselves and their families while they are living with the disease, so it is important to not wait until the opportunity for planning has passed.  Both The Alzheimer’s Association at http://www.alz.org  and the Parkinson Association of the Rockies at http://www.parkinsonrockies.org have helpful information for the public about legal issues for planning purposes.  Taking an approach to plan for a progressive disease such as Alzheimer’s or Parkinson’s can help people affected by these diseases maintain quality of life and dignity.