Obstacles to Successful Elderhood: Skilled Nursing Care

denver elder law

Dome of Aspiration

 

I’m returning to the theme I introduced a couple months back about successful elderhood and its obstacles.  Today I’m looking at institutionalized care of American elders and in particular the costs versus care conundrum.

I recently came across two unrelated articles in the space of a single day and immediately saw a connection.  The first was this article from the New York Times, about the privatization of InnovAge, formerly a not-for-profit (which used to be known as Total Longterm Care) in the Denver area and the second article from the ABA Journal, about how the imposition of routine fines having little or no impact on deterring abuses at skilled nursing facilities.

Keep in mind that skilled nursing facilities (nursing homes) are some of the most regulated business in this country – regulated by both the feds through Medicare and Medicaid, as well as by state licensing and regulatory authorities.  Do these regulatory regimes lead to better outcomes?   The ABA Journal article would tend to weigh in on the “no” side of this answer. . .  That seems to be an open question, particularly in light of the shocking circumstances surrounding the death of a young mentally ill woman in SNF care – Letasha Mims, as described in the ABA Journal article above.

As an elder law attorney, I am aware of and often share the information collected by different state and local agencies about violations at nursing homes.  In case you’re wondering about Colorado nursing homes, here is a link to the CDPHE’s page about licensing and deficiencies.   Medicare has a handy tool to compare nursing homes here. You can enter a zip code and compare facilities quickly.

The story of Letasha Mims, however, makes me question the helpfulness and accuracy of that information collected by our regulatory agencies.   But the lingering question is a difficult one: when an elder or disabled person lives in a SNF which is a for-profit business, there is a nagging question about the adequacy of staffing at those facilities.    I am thinking of a recent book I came across – Elder Care Journey, (published in 2016 by SUNY Press) by Laura Katz Olson.  What Olson confronted in managing her elderly her mother’s care is something that faces each of us who has ever had to make the difficult choice of arranging for the care of a family member, like an elder parent, in a skilled nursing facility.

Olson writes eloquently about the personal journey of getting the best care for her frail mother, but what is most relevant for this discussion is the penultimate chapter of the book entitled “Peeling the Onion.”  In that chapter she looks at the system of care for elders including skilled nursing facilities (nursing homes).   She writes that the 2012 statistics indicate that sixty-nine percent of SNFs are for-profit organizations (mostly chains), but she reports that there is a recent trend toward private equity firms (like the one which is reported to have purchased InnovAge above) buying SNFs.  Olson notes that private equity firms have goals that include making quick profit so the business can be sold for a profit within five years; typically have protections against liability for substandard care which relate to the individual facility and not the chain which is the parent of the SNF; and private equity firms, unlike publicly traded companies, have little transparency about the inner workings of their assets, profits and ownership.  These important details don’t just seem to be at odds with providing adequate care, and they will likely contribute to a burgeoning number of substandard care.

Olson quotes at 152 (a 2001 study in the American Journal of Public Health) that “rates of severe deficiencies in investor-owned facilities were 40.5 percent higher than at nonprofit homes and 35.8 percent higher than at public homes.”  What will the numbers be for the present situation? This will likely be a topic of a later post. P Perhaps a relevant question for an adult child or anyone researching placement at a skilled nursing facility is the simple one of whether it is a for-profit facility and if it is, whether it is publicly-held or owned by a private equity firm.  Profit maximization for investors does not seem to be consistent with providing good care for our frail elders.

I focus on the SNF because of the institutionalized nature of such a facility and the relatively high level of medical care which is supposed to be provided.  And if you were hoping that Medicare was somehow an equalizer when it comes to insurance care for elders . . .  think again!  There is a growing shortage of doctors, particularly primary care physicians for elders, who take new Medicare patients.  For those elders in hospitals who are suffering from terminal conditions, here is a recent article from Health News, which addresses the shortage in hospitals of palliative and hospice care medical teams who are trained to discuss end-of-life issues, effectively manage patients’ pain and otherwise address the emotional and spiritual needs of those at the end of their lives.  There just isn’t enough money in providing palliative care under our Medicare program of incentivizing big intervention and the low-tech, high touch, human-fueled intervention of hospice and palliative care providers.  This reminds me of Atul Gawande’s observations in Being Mortal and Katy Butler’s book about her father and his health crises, Knocking on Heaven’s Door.

And what about Medicaid, that government long term care program that many people are curious about for their elder family members . . . Some studies have demonstrated worse outcomes for those Medicaid patients – whose doctors receive only a fraction of what other better insured patients receive.  Medicare patients didn’t seem to fare much better.  In case you’re wondering whether this divide continues, here’s an article from last month about worse outcomes for Medicare and Medicaid myocardial infarction patients.  We are spending money for these Medicare and Medicaid services, yet so many of the needs of the people receiving these services goes unmet . . .  what gives?!

Sorry, this post appears to be largely about obstacles, but perhaps they are placed before us so as to clarify what it is we need to fix for our loved ones and for ourselves.  Er, maybe this is an opportunity after all – but only if we make it one.  One thing is certain – it will not be an easy fix.

© 2016 Barbara Cashman  www.DenverElderLaw.org

The Colorado End of Life Options Act – On Our Ballot This November

Spring in Assissi

Spring in Assissi

 

Will Coloradans approve the ballot measure to allow physician assisted death in Colorado?

This is an update to previous posts about (unsuccessful) proposed legislation concerning physician-assisted death in Colorado and the ballot initiative which will be put in front of Colorado voters this November.  Click here to read the Colorado Secretary of State’s final version of the initiative.  Today’s post is a further conversation about this highly-charged topic.  I enjoyed reading this recent Denver Post piece by Jennifer Brown about use of language and terminology in this initiative and the wider debate.

The first observation is that I’m using the term I have previously employed – physician assisted death.  When I typed in the term to my search engine, what appeared in the results was “physician-assisted suicide” defined here as

The voluntary termination of one’s own life by administration of a lethal substance with the direct or indirect assistance of a physician. Physician-assisted suicide is the practice of providing a competent patient with a prescription for medication for the patient to use with the primary intention of ending his or her own life.

I use the term death because it is less inflammatory, but it is – by the very nature of the procedure – suicide.  Assisted death can incorporate both physician assisted suicide and voluntary euthanasia, and I note this is important.  While we’re talking about terms to describe the life-ending process which is facilitated by a physician, let’s look at a few important terms to help keep the terminology straight.

Euthanasia comes from the Greek meaning “good death” and the Merriam Webster online dictionary defines it as:

 the act or practice of killing or permitting the death of hopelessly sick or injured individuals (as persons or domestic animals) in a relatively painless way for reasons of mercy.

Within the definition of euthanasia are different types of euthanasia, including: voluntary, non-voluntary and involuntary.  Today I consider only voluntary euthanasia which consists of two kinds – active and passive.

Passive voluntary euthanasia: When someone executes a living will to direct that no life-sustaining procedures or artificial nutrition and hydration be offered in the event a person (known as the “declarant” for purposes of a living will) is determined to be unable to provide informed consent and suffers from a persistent vegetative state or terminal condition.  This practice (with important controls promulgated by state laws) was made legal by the U.S. Supreme Court decision in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).  It was the first “right to die” case heard by the U.S. Supreme Court, and discussed important aspects of self-determination, liberty interests and due process in the context of Cruzan’s family’s attempts to have Nancy Cruzan’s previously expressed wishes (orally expressed, not in writing) upheld.

Active voluntary euthanasia: This differs from the widely accepted passive form in that passive euthanasia involves a refusal or withholding of treatment and active euthanasia involves an intervention to give something –  a lethal prescription from a doctor – to provide the means to end a life.  Herein lies the distinction between refusal to provide or continue to provide treatment (recognized in our living wills) and the active choice of one’s own death, or suicide.

Can there be any middle ground here?  Perhaps.  If you consider the arguments for wider acceptance and use of hospice and palliative care – these focus on the treatment of the whole person to manage pain, a terminal condition or end of life medical care, and not just from the more mainstream exclusive perspective of medicine’s focus exclusively on a patient’s medical problems, often to the detriment of the patient’s quality of life.  So here is the question – if patients have access to good quality palliative and/or hospice care at the end of life, then is assisted death really necessary?  One way of looking at this is to consider that the rights-focused physician assisted death doesn’t adequately take into account the scope and range of palliative and hospice care which is presently available.

As we continue to age and live with (read: have our lives prolonged by) more drugs and medical devices, how we choose to remove those supports (like a pacemaker or similar devices) is part and parcel of our choice of living as much as it is how we choose for ourselves (and others) how we manage the end of our lives.  Here there is a distinction between the legal terrain (like a medical POA or a living will) and the medical terrain (a do not resuscitate is a medical order requiring a doctor), but this is longevity in the U.S. and most people don’t live their lives consciously regarding these distinctions.  Maybe it’s time to broaden the conversation . . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

Guardianship of an Elder – Some Important Considerations

Delicate Flower

Delicate Flower

As the number of retirement age baby boomers continues to rise, we continue to grow our unprecedented proportion of old people in our population.  What does this mean for our future?  Well, lots of different things, but I’m focusing on an often neglected side-effect of our longevity: the likelihood of incapacity.

Capacity itself is a broad topic in the law.  In my area of practice – we typically follow the question whether someone has (or had) capacity with the focusing query – capacity to do what?  Execute a power of attorney, sign a will, direct one’s medical care?  Here’s a link to a document from the American Geriatrics Society about medical capacity that is an excellent Q&A on the topic of capacity in the medical decision-making context.

There are often many ways to enhance someone’s capacity if they are facing cognitive challenges.  Some of these enhancements can assist greatly where the deficit in capacity is of a more temporary nature, such as confusion.  Confusion can have a wide array of sources including alcohol or substance intoxication; poor heart or lung function (resulting in e.g., hypoxia); malnutrition or dehydration; blood sugar too low or too high; medications not managed effectively or withdrawal of medication; head injury or other bodily trauma; infection. Insomnia; and a number of other diseases and conditions.  I mention these to contrast them with a kind of capacity that is typically not temporary and likely to diminish further as the underlying disease progresses or as the condition worsens.  The kind of incapacity I am considering is not the temporary or reversible kind.

There are a number of medical conditions or diseases which can affect capacity as well.  For example, there are several types of dementia including Alzheimer’s disease, alcoholic dementia, vascular dementia, frontotemporal dementia (Pick’s disease is one example) and Diffuse Lewy Body dementia which can occur with Parkinson’s disease.  For our purposes in Colorado, one relevant statutory reference is to C.R.S. 15-14-102(5), which concerns the definitions for protective proceedings:

“Incapacitated person” means an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

In the context of the medical conditions and diseases which cause dementia, a major goal of a capacity determination is to not just identify the disease, condition or injury which is the cause of the ongoing dementia (and which often progressively worsens over time), but to identify and promote the AIP’s self-determination and other rights to the extent possible.  Planning for the future can typically be accomplished even after a diagnosis or dementia such as Alzheimer’s.  The Alzheimer’s Association has a helpful brochure here.

While a person with dementia faces a host of challenges to their autonomy and self-management of activities of daily living (ADL), appointment of a guardian for an alleged incapacitated person need not necessarily be a self-fulfilling prophecy in that taking the AIP’s rights away makes them less competent.

Here is a link to the Colorado Judicial Branch’s website which contains helpful information about adult guardianship in Colorado and the probate court process known as “protective proceedings.”   The Guardianship Alliance of Colorado also has helpful resources, particularly pertaining to the expectations and duties of a guardian for an adult.  Finally, here’s a link to the 2016 Senior Law Handbook, published by the Colorado Bar Association.  Chapter 26 is devoted to guardianship of adults.

So what is the overall nature of an adult guardianship proceeding?  It is called a protective proceeding because its underlying aim is to protect the well-being of vulnerable adults.  This protection comes at a steep price however, the near complete stripping of civil rights of the AIP.  The ward will retain the right to vote, however.  So what is the task of a petitioner (the person seeking a guardianship) and what is the court’s role?  Within the context of protecting a vulnerable individual and based on all the cognitive and other deficits which prevent the person from functioning at an autonomous level, there are many losses sustained.  Amidst these losses, however, is the person’s ongoing right to self-determination.  Self-determination is an ancient right as far as the law goes, part of the inviolable rights which set apart humankind from other beings in the animal kingdom.

Self-determination is something not often discussed except in the most desperate of circumstances, hence its relevance to this discussion.  A basic precept of international human rights law (particularly in the post-colonial era), in our country’s history, it has been relevant to American Indian peoples, the disabled and other marginalized groups in our legal history and is enshrined in many countries’ constitutions.

In the future, I will be taking a further look at how the self-determination of a ward (after judicial determination of incapacity) can be supported by a guardian.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Death – the Ultimate Concern of Elderhood

Chimayo Cherub

Chimayo Cherub

In this post in my series I will revisit the notion of a good death in the context of how we see our lives.  So I’ll start with a question: What do we have or what is it that is ours in the sense of that being part of our life?  I’m posing this in terms of a sense of meaning, an awareness or appreciation of ultimate meaning of or purpose to one’s life – as we face our mortality and everything in between along our life’s path – like illness, grief and profound life crises (to name just a few).

The world breaks everyone and afterward some are strong at the broken places.

Ernest Hemingway

Death is the ultimate question in this regard – the “all stop” for all that has happened in our lives, all that we have participated in to create our lives.  Every living being eventually dies as each of us will one day pass away, but how do we see this ending as part of our own life, in terms of one’s own experience of isolation, connection and relation to others?  Can our life prepare us for our unknown ending? Whether elderhood – either or own or our participation in other’s elderhood (as adult children for example) or our longevity prepares us to be resilient or brittle in this regard is a difficult question indeed.  One writer has observed that “human beings primarily collect” and these collections of experiences (and things as representations of experience) form our identity and notion of self, but Jacques Lusseyran also observed that “seeing is responsible for the prevalent conviction that we shall understand and completely recognize the world when we progress from one form to the next, from one phenomenon to the other.”  In his posthumously published collection of essays “Against the Pollution of the I,” (2006: Morning Light Press) Jacques Lusseyran (who lost his eyesight in childhood) noted that “[w]hat simply has to be understood is that seeing is not the work of the eyes alone.” Id. At 58.  Lusseyran is keenly instructive on the point of the sighted taking for granted that what they see is all they see, and is all that exists.  Lusseyran notes further

I believe that blindness has its own function.  It has the tasks of reminding us that the despotism of one sense, sight, is unjust, and of cautioning us against the form of perception prevalent today.  And, further, it is the task of blindness not only to recall to memory the origin of all knowledge, but also to remind us of the wonderful gift that permits a mutual exchange between other forms of perception and perceived pictures.

From “Blindness, a New Seeing of the World,” in Against the Pollution of the I at 64.

As we examine the place of elderhood and our own inevitable demise, can Lusseyran the blind writer who describes the seeing he experiences as not limited to the visible surface of things, or of people, point out to us the limitations of this superficial mistaking of what is real?  I would submit that this has become a kind of collective amnesia, this affliction of our death denial and our obsession with youth, particularly looking or appearing young.  I might be digressing just a bit, but it’s hard to say!

A person without an inner life is a person with nothing added: an empty sack which therefore cannot be filled and cannot remain standing.

Johannes Tauler

So, back to the question posed at the end of my previous post, about the difficulty of adjusting our thinking about human frailty in the face of aging.  This is a fundamental question for which few of us have prepared.  In our collective viewing of the superficial aspect of old age, we have come to largely identify aging as a medical problem or challenge – to be managed or overcome.  Is this failure to see the person in front of us, the insistence on “seeing” only the superficial aspects of who they appear to be our own form of collective blindness?  In the medical context, amidst the prevalence of hyper-specialization, is the medical care for elders largely a habitual reaction to some piecemeal medical problem a failure to see the big picture of a human being as a person and not as some collection of medical difficulties?

I am still reading Katy Butler’s excellent book “Knocking on Heaven’s Dorr” and in her penultimate chapter “A Better Way of Death,” she describes the reactions of many readers to her New York Times Magazine article about her father, his pacemaker and its complications to his dying process.  It took me right back to the events leading up to my mother’s demise.

My mother was a strong and healthy 85-year-old woman who had a couple years prior survived a pain in her thigh – which turned out to be a staph infection resulting from the titanium which was surgically pounded into her broken femur and was (after many months of complaining to her doctor) after a proper diagnosis removed.  But she was not in a good place when she started thinking about and demanding a hip replacement.  After all, she had survived two previous knee replacements – one in her 60s and a second in her early 70s, so she was a veteran of such surgeries.

But in the previous year before her longed-for hip replacement she had lost her husband of 59 years and two of her three sisters.  Did her surgeon or her primary care physician ever consider these details? I will probably never know.  It was not part of the provision of her informed consent, that much I know. Keep in mind that under our Medicare system, doctors get paid well to intervene in such ways, even though her surgeon was someone otherwise known as “conservative.”

I will not soon forget the look of indignation on the surgeon’s face when I (her health care agent and only daughter) asked him about a DNR (do not resuscitate) in the event something went terribly wrong in the surgery.  This on the morning of surgery after I had done some wrangling with the anesthesiologist about which anesthesia cocktail would be used as I was insistent on using the least invasive method first.   Within two months she was gone from this world.

To be continued. . . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

Yours, Mine, Ours and Theirs: Some Practical Questions to Get Started

Southern Colorado Springtime

Southern Colorado Springtime

 

So this is part five of my series and just in time for next Saturday’s Jefferson County Senior Law Day (June 4, 2016)! I took a couple weeks off for a vacation, but I’m back now.  Here’s a link to a bit more information about this year’s program which will again be held at Colorado Christian University in Lakewood.  I don’t yet have a link to the 2016 Senior Law Handbook, but will provide it when it becomes available.

For the last couple years of Senior Law Day, I have presented on financial powers of attorney and conservatorships, but this year I was approached about presenting on a new and different topic, hence the title of the “Yours, Mine, Ours and Theirs” presentation – which will be its first time out.  I don’t know how many people will show up for my presentation, because the title is purposely short. . .   I’ll be presenting it at 11:30 and will have informational flyers available for attendees.

So here’s an overview along with some of the questions that folks “re-coupling” in later life might want to ask themselves and discuss with each other.  This discussion, a most necessary and valuable conversation when had at a time that is planned – and not in the midst of a crisis or emergency, can clarify expectations and prevent conflict in a number of important ways by managing expectations.  So, let’s look at where we find ourselves. . . .

Remarriage or Re-Coupling After Widowhood

I use the term “re-coupling” to encompass marital, non-marital (living together), and other types of relationships which people forge with their partner or other dear ones.  Just as a bit of a refresher, while the “yours, mine and ours” may seem fairly straightforward, figuring out which property will be maintained or held separately and how joint property will be titled and maintained, particularly in the event of disability and death, is usually a bit of a challenge.  Remember that I have added “Theirs” at the end of the title to reflect the fact that many of us in these re-couplings have children from previous relationships.  In my experience with estate planning for blended families or later life re-marriages, there is often a strong desire to address and adequately or equitably provide for adult children of the respective spouses or partners.  In some cases, spouses will leave everything to the survivor of the two, with the option for the survivor to leave something or nothing to that first to die spouse’s children.  Others, including those re-coupled spouses who were previously widowed, may feel that their children should inherit at least some portion of their (the remarried widowed spouse’s) estate after the re-coupled spouse passes away because some portion of that estate may have been accumulated by the adult child’s first-to-die other parent.  It is not uncommon for a re-coupled spouse or partner to feel that their adult child(ren) ought to have a stake in their inheritance.  This expectation is often expressed by the child(ren) as well.

Many of these couples, particularly those who are already receiving retirement benefits when the re-coupling occurs, must carefully consider the impact (sometimes an adverse financial impact) that marriage has on the benefits received as a result of being widowed.  For this reason, some older couples may choose to have a non-marital or living together agreement in place, so that these matters are more clearly elucidated.

Remarriage or Re-coupling After Divorce

Remarriage after divorce presents its own financial challenges as the number of baby boomers (many of whom were in long-term marriages of twenty or thirty years) divorcing has been on the rise.  There may be a splitting of retirement benefits (as in a qualified domestic relations order – QDRO) or other splitting up of retirement assets of a qualified or nonqualified nature.

Remarriage or Re-coupling and Disability Planning

Yes, this is the other “d” which is very important and should not be overlooked!  While death is an uncertain certainty, whether we will suffer some form of disability – physical, cognitive, psychological – is a certain uncertainty.  In my opinion, re-coupled folks or remarried spouses need to have these questions sorted out more clearly than those who are single or only married once. Why? The best way to minimize the potential for conflict in the event of a health crisis is to make a plan which identifies key people and describes their roles,  such as:

  • Who will be the health care agent or proxy decision maker?
  • How will the spouse or partner be empowered to make health care decisions?
  • How will the adult child or children of a disabled or incapacitated parent be empowered to make health care decisions?
  • What will be the process for communication between all the persons involved?

Another question deserves its own paragraph, but I will simply mention the question here – have you examined your expectations around care and caregiving for your spouse or partner?  Alright, this post is getting a bit long-winded here, so I will wrap up with just a few more questions, which I will no doubt be putting into that flyer for Senior Law Day.

Have you both considered the level of financial stress relative to the longevity (actual and potential) of your relationship?  I will close with a few bullet points to ponder:

What do you need to know about your own and your partner’s finances before you tie the knot or otherwise intertwine your finances?

  • How much debt do you have? What kind is it (credit card, car loan, other)?
  • How will we handle financial or other interventions or assistance for an adult child?
  • What do you earn now and what will you have as income sources for retirement (pensions, 401(k), IRA, Social Security, etc.)?
  • How will you and your partner share or split expenses?
  • Do you and your partner have compatible financial values and goals?
  • Would you consider a marital agreement, written plan or a will (or will substitute) to provide more clarity about rights, expectations and so on in the event of disability and eventual death?

I am looking forward to presenting on this topic of “Yours, Mine, Ours and Theirs” which is a most interesting topic to me, based on the experience that each blended family or recoupled relationship is utterly unique.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

 

 

 

 

Yours, Mine, Ours and Theirs – Health Care Advance Directives

Not quite empty nests!

Not quite empty nests!

 

I am continuing my series of posts on the theme of blended families, adult children and stepchildren, and some of the challenges of estate planning within such a modern context of family relationships.

In my first post, I gave an outline of some of the terrain I would be covering here.  In the second post, I looked at some of the unique questions posed blended family estate planning, along with the potential for conflict if nothing is done to plan.  The last point discussed in the second post concerned differing styles of coping with or managing conflict and the importance of identifying what is important as well as knowing the challenges.  A colleague emailed me after seeing the post, commenting “It’s as if you were listening  to my recent conversation with my husband of 18 months!”

Okay, let’s get started with the third post already!  Here’s a link to some helpful information about stepfamily members and inheritance.    I’m including resources here about inheritance expectations of children, stepchildren and so forth because they are part of the equation, they are the “theirs” which I include in my title for the series.  In my experience working with blended families, the “theirs” is always part of the picture, whether the expectations of adult children are acknowledged as such or whether they are  described and set forth from the parent’s point of view in the estate plan.  Hence my inclusion of that term “theirs” – even if the adult kids are not at the table so to speak…. So getting back the content of this post, let’s consider some of the  “what happens if” and the “what happens when” scenarios in the blended family or some “de facto[i] version of it.

Getting back to my original premise about blended families estate planning having no “template” like the historically “traditional” American family did, it is worth considering first – what kind of blended family are you? Do you have: kids from both sides; aging adult parents; older, established adult children; any special needs children to provide for; an inheritance from a deceased parent or other relative which you wish to keep in your line of descendants; are long term health care considerations important; and lots of other questions.  Most of us like to go directly to problem solving mode when we face a challenge.  What I think is important to consider as a preliminary matter here is holding off on that step until you determine what are the important values which will inform both your individual and your joint decision making.  If you get to problem solving too quickly, there will be likely misunderstandings about the purpose and nature of what was decided and, of course, the utility of such decisions.  I should also add that, just like the rest of us over the age of 18, we should be having these conversations about who we want to make decisions for us in the event we are unable and expressing our end of life wishes to family members and loved ones.

I’m focusing on one particular issue in today’s post – advance directives for health care.  “Advance directives” include two important documents: a health care (medical durable) power of attorney (POA) and a living will.  These two documents work together for the most part, but from my perspective, if you only have one of these documents – execute a health care POA because that document names a person to make decisions for you in the even you are unconscious, unable to communicate or otherwise unable to provide informed consent for medical care.  Remember, health care POAs are, by their nature, what we call in my line of work a “springing” POA – meaning that the agent named in the document is only empowered to act as agent if the health care provider determines that the patient/principal is unable to give informed consent.  An agent cannot give informed consent for a procedure when the principal is otherwise able to provide informed consent.  This is informed consent matter is important, I have previously written about it in the context of the Nuremberg War Crimes tribunal.

I don’t usually like to use fear as a motivator to cause people to act, but a failure to execute a health care POA and name an appropriate agent to make decisions for you can have dire consequences in the blended family context.  A failure to discuss and plan for either the unlikely or the inevitable can result in conflict between the spouse and their step-children.  This is seldom what people want!

With the health care POA, the principal (the maker of the POA) should carefully consider who is the best person for the job – who is the best equipped emotionally to make difficult decisions and who will be able to effectively communicate with all the necessary parties involved.  Usually, if adult children know that this conversation is taking place with a parent and step-parent, there is a collective sigh of relief.  I suggest continuing the conversation at a family dinner or other event, so everyone is informed of who is named as gent and successor agent, who will be in charge of decision-making and how communication will be conducted.  It goes without saying that this should be an ongoing discussion over the course of our lives!

You can imagine that there have been many difficult lawsuits brought where there was no such document in place or plans were not otherwise sufficient.  Family peacekeeping often involves thinking ahead to avoid conflict, and this is just what advance directives can provide for a blended family.  Here is a link from the CDC with many helpful resources, including the American Bar Association’s Consumer’s Toolkit for Health Care Advance Planning.  In future posts, I will be looking at the financial power of attorney and other useful means to manage our longevity and disability.

And in celebration of our glorious sunshine here in Denver (after a lot of snow over the weekend!) how ‘bout a bit of eye candy?  Check out Colossal’s post about “The House of Eternal Return,” a previously abandoned bowling alley in Santa Fe which now houses a brilliantly colored immersive art installation.  Inside the space is a house, complete with a bathroom with a wavy tile floor.  I think the “eternal return” theme goes nicely with the desire of so many of us to remarry.  Here is that oft-quoted statement from Oscar Wilde about marriage:

Marriage is the triumph of imagination over intelligence. Second marriage is the triumph of hope over experience.

That’s all for now, will continue next time with more details for the ongoing discussion. . .

___________________________________

[i] I use the term de facto here to distinguish from de jure blended family.  Most of my posts will covered married persons, but I do not wish to exclude couples who make other, nonmarital arrangements which often resemble marriage, but without its conventions and protections.  Here’s a good description of the difference between the two legal concepts.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Unlearning, Elderhood and the Aging Process

Chalk Rosetti in progress

Chalk Rosetti in progress

 

One of the best parts of my job as an elder law attorney is I often discuss the “big” questions with older people – their values factor into both planning and crisis management.  So . . . . what is the wisdom of elderhood?  Is it the stubbornness of life, or the wisdom of aging, or perhaps a combination?  I was reading an interview with Dr. Tom Kirkwood, entitled “Inevitability of Aging?” in Mind, Life and Universe: Conversations with Great Scientist of Our Time, Lynn Margulis and Eduardo Punset, eds., Chelsea Green, 2007.  In the chapter’s introduction which precedes Punset’s interview of Kirkwood, Punset observes “the first great myth is the human certainty that we are programmed to die.”  Id. At 188.  This myth to be “unlearned” is the topic of exploration for the interview of Dr. Kirkwood.  What I find fascinating is the use of the term “myth” in the context of what we think we know about aging and lifespan.  This is of course a popular and limited definition of “myth” meaning a widely held but false belief or idea.

Let’s take a quick look at human mortality by a couple terms and numbers:

The familiar one – Infant mortality – this is the death of an infant, and child mortality is typically reference to a child under the age of 5.  We think of these numbers as not particularly concerning in our country, which seems odd due to the fact that we have the highest rate of infant deaths (6.1 per thousand in 2010) which is more than double the same figure in several other industrialized countries.    US life expectancy is also the lowest among wealthy nations, attributed to our shortage of affordable and available health care (disease), obesity, violence and other factors.

Should it then come as a surprise that our longevity in this country might involve more medical intervention and support, to the extent we can afford it and it is otherwise available?  What is interesting is that health spending in the US accounted for nearly 17% of the GDP in 2012, far greater than the average spent by other OECD countries.

So enough of the forensic aspects of this longevity back to the quality aspect, of the possibility of unlearning the thinking that there is no biological limit on human life.  Dr. Kirkwood challenges three aspects of aging and death as inevitable.  Kirkwood looks at longevity from a cellular level, identifying its threats – including oxygen and free radicals and the increased incidence of cancer as our cells often mutate erroneously, unable to repair themselves or clear out the garbage.  He concludes that aging is simply a result of damage to our body, and that much of it can be avoided by decreasing our food intake dramatically.  Reminds me of the study that came out a few years back about the long term study of rhesus monkeys perhaps, that longevity is to be gained by calorie restriction, but I also remember something about the study observing that the subjects were ill-tempered. . . . !

So the balance again and the question – what is our longevity for?   It begs the question if you aren’t already looking at your life in elderhood in some reflective way.  I am not talking about reminiscence, plenty of people mistake that longing for the past as something other than what it is – a refusal to let go of what once was (remember “chronolatry”?)  And so what if learning from one’s mistakes isn’t what wisdom in elderhood is about at all?  What if the wisdom of elderhood is about being receptive to what the future holds for us, being able to hold that uncertainty?  This relationship with the future, a letting go of the illusion of control that is based on some past event that was known, might be a threshold for the wisdom of elderhood.  Pressing on amidst disappointment, amidst difficulties, is of a different quality than proceed blindly with hope.  Hope in the former sense is grounded, based on what is in this life, not some far-flung fantasy.  It strikes me that this type of is from waiting and experience, an expectation of something coming from the future, not something continuing from that past.

Shouldn’t elderhood herald a ripening, a wisdom that is concerned with the ultimate questions, in whichever form they present themselves?  As we travel along more of our life’s paths, many go beyond the rules of what we have learned, the explanations of politics, natural sciences, economics and other general standardized types of analysis into the uncharged territory of interrogating and forming our life’s meaning, purpose or significance.  These are the “being” questions as distinguished from the “doing” questions!

Well, I seem to have led us to another dead-end!  I think it is high time for some humor, this video is a song about that elderhood “rite of passage” – the colonoscopy!

©Barbara Cashman  2015   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

The Grail of Elder and Probate Mediation: Identifying Obstacles

denver elder law

Ancient Chalice Painting

I have included this painting of a chalice because of its powerful symbolism.  I will put aside the well-recognized religious symbolism (especially among the Abrahamic religions “of the book”) and employ its metaphorical meaning for my purposes here:

A thing that is being earnestly pursued or sought after

The word appears to originate in the Medieval Latin gradalis, meaning “dish” and our English term comes from the Old French graal.  Thinking of the term as a dish, and considering the Latin from which it originates, it’s not a stretch to consider it as in the courses of a meal (our stages of life).  If we think of our life as a long meal, and the dish, bowl or cup as what we have come to think of in our mind as our life and perhaps even its meaning or significance, the grail can serve as a good metaphor for pondering what it is we think or feel we are lacking in this life, as the grail of what has been sought but not yet achieved or attained.

In the context of elder and probate mediation, this grail, this missing part of an elder’s long life or a family’s story, can be harmonious or respectful family relationships.  In my experience, the single biggest hurdle to making the space for a productive engagement to have a conversation about family conflict lies in identifying the sources of conflict.  The conflict may have been careening out of control for years but it has finally crashed, landed somewhere and gotten stuck as a result of a variety of circumstances.  What to do now?

Well, it depends on who is asking and who is willing to “own” the conflict.  There are invariably a number of different perspectives on what went wrong and how to “fix it.” This is the often insurmountable threshold to getting close to any room in which a grail might be found (to use a building metaphor).

Family members typically operate under ground rules for engagement that were established in childhood and people often carry these unspoken rules and assumptions forward into the future.  In fact, this informs many of us about our “life story” and we adopt it as part of our identity, for better or for worse.  So how does that play out in the context of an elder’s health crisis or end of life scenario, when “the chickens come home to roost?”

I have previously blogged about sources of such conflict here, as well as what to look for in a mediator, but I don’t believe I have ever addressed the topic of getting past the “hand wringing” to proceed to mediation.  It strikes me as odd that I haven’t done this before because I have probably had a dozen such conversations over the years with potential clients about what is involved in convening an elder mediation.  This can be distinguished from probate mediation, where there is already some underlying legal proceeding which has at least crudely identified what is at stake and in which a judge may have ordered or strongly suggested to disputing parties that resolution of all or some of the issues should be done in a mediation.  I have been engaged as a mediator in several of these types of disputes (guardianship, estate administration, trust administration).

Speaking is usually a function of thinking, but our chosen words, what they say and convey to others has a multi-layered meaning in the elder and family conflict context.  The grail story, the myth of Perceval or Parsifal, depending on the land or time period of recounting of the story, is essentially about speaking as a function of thinking and interacting with the world and others.  I find it particularly useful in this context of elder mediation and family disputes involving an elder.  If you would like to read more, consider The Speech of the Grail, by Linda Sussman (1995: Lindisfarne Books).

There are two important questions asked by the protagonist of the story.  Both questions are asked from a position of freedom, not bondage flowing from a sense of obligation.  The first question “what ails thee?” is about the power of observation, from an action of paying attention to another’s plight from different perspectives beyond one’s owned limited and perhaps comfortable perspective.    The second question, “how can I help?” recognized the relationship involved and might also be phrased “how can I help myself in helping you?”  This is the initiation of the thinking/habitual speech into the realm of the heart-space.  This is true listening that is usually very difficult, uncomfortable, sometimes painful and often cannot be controlled, leaving us feeling vulnerable.

This posing of these two grail questions is the hurdle, the threshold that prevents most individuals and families from getting to productive conversation about a crisis stemming from the elder family member’s life.  Here is a poem from the eighth century poet Rabia al-Basri about the heart:

In love, nothing exists between heart and heart.

Speech is born out of longing,

True description from the real taste.

The one who tastes, knows;

The one who explains, lies.

How can you describe the true form of Something

In whose presence you are blotted out?

And in whose being you still exist?

And who lives as a sign for your journey?

 

I will close with a question she raises: Can we muster the strength to be signs for the other’s journey?

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Longevity, Caregiving and the Need for Advance Planning

Springtime in Italy

Springtime in Italy

This Friday (April 24, 2015), I will be speaking at the AARP Colorado Caregiving Symposium at the Arvada Center for Performing Arts.  For that event, I’m looking forward to a “talk show” kind of interactive format designed to engage the audience.  One of the topics I will be focusing on which is obviously relevant to caregiving – is about how we can better navigate our longevity.  A portion of that will look at some of the important conversations to have and documents to have in place.

      What is Health Care Self-Determination?

All of us will die someday, but the majority of us will be disabled or incapacitated (temporarily or longer) before we die. This is but one of the “side effects” of increased longevity.  Having the difficult conversation now – with your family members, loved ones, even your health care providers – can make a huge difference in the type of care you receive and the stress and strain placed on your family in the event of an incapacitating health crisis.   Information is key to maintaining one’s ability to decide.  Here’s a link to a recent article in Forbes with Dr. Atul Gawande (author of the recently released book Being Mortal) about how paying more for doing more health care isn’t such a great deal.

Identifying your surrogate decision maker (a/k/a agent under a medical durable POA) is the most important first step. Before you name this person and a successor agent, you must have a conversation with them to make sure they are willing and able to perform this important job in the even the need arises.  For them to perform this job, the person giving the MDPOA, the principal, must give some important instructions to the named agent and successor agent. Medical Durable POAs, along with other documents, are effective ways to manage uncertainty, to identify the people you want to make health care and other personal decisions for you if you are unable and to give them instruction about what to do.

       What About a Medical Durable POA?

An MDPOA is a simple, inexpensive, and reliable way to arrange for someone to make health care decisions for another (i.e., give informed consent) in the event the principal is, in the opinion of the health care provider, unable to give informed consent.

The types of decisions an agent can make can be broad or narrow, general or specific and the agent’s authority is typically set for the power of attorney document.  I am in favor of powers that confer broad authority on an agent.  This is for two reasons: it requires the principal have a conversation with the agent about what the principal wants (a conversation about these matters is necessary); and there is little likelihood for confusion about what an agent can do.  I tend to think that a short document is best, given the amount of time that health care providers spend with their patients, it is not a great idea to draft a long and complicated document for this purpose.

       Why Do I Need to Have This Conversation? I Really Don’t Want To!

The cost of death denial in our culture is high.  End-of-life situations involving elders are often fraught with emotionality and conflict, and death’s finality does not often bring peace or resolution to a conflict that involves death and grief for a loved one.  Beyond the emotional costs are also the financial, psychological and ethical costs.  If you haven’t named an agent or made any advance directive or other statement of your wishes at the end of your life (when you are not able to decide for yourself), someone else will be charged with making decisions for you, and this is where we have seen much tragedy and conflict result.  In the past we sometimes called these measures heroic, but the connotation was misleading at best.  The term used now is “futile.”   In addition, having the conversation helps ensure that others know of the existence of any advance directive you have.  That is an extremely important detail if one becomes incapacitated.  Here’s a good New York Times article about this topic.

       Tell Me More About These Health Care Documents. . .

If you want to avoid this medical care and personal care related kind of stress and strain on your loved ones, consider the following documents:

  • Medical (Health Care) Power of Attorney
  • Advance Directive
  • CPR Directive (DNR, a medical document which must be signed by a doctor)
  • MOST Form (recently updated in CO, for elderly, chronically or seriously ill persons)

The Colorado Medical Treatment Decision Act is found at Colo.Rev.Stat. 15-18-101 et seq.  The statute allows any adult with “decisional capacity” to execute a declaration.  “Decisional capacity” is defined in the statute at 15-18-103(6) as follows: the ability to provide informed consent to or refusal medical treatment or the ability to make an informed care benefit decision.  Note that the statute speaks about medical treatment decisions and also health care benefit decisions. Yes, our Colorado statutes cover all the bases here.  Colo.Rev.Stat. § 15-18.5-102 and 103 relate to the health care power of attorney for medical treatment, §15-18.5-104 and 105 (the statutory form for naming the surrogate) allows for appointment of a surrogate decision maker for health care benefits.  Why are these documents so important to have in place?  So that you can name a person in charge and know they will be able to perform an important job for you if you need their assistance.  If you don’t name anyone, there is a vacuum, which can result in a decision or lack of one, by a “committee” of family members.  If there is no MDPOA or the MDPOA does not work as intended, instituting guardianship proceedings in probate court may be necessary.

What If I Need Help With My Doctor Visits to Keep Track of All the Information?

In our fee-for-service based health care system, many patients can be overwhelmed by the choices, decisions and amount of information which must be managed effectively to exercise one’s self-determination in medical care. This is often the case with elders who have suffered a health crisis or have an illness which will affect their mobility or ability to live independently.  Consider enlisting the support of another set of eyes and ears for this purpose, in the form of a health care advocate.  A health care advocate is not only another set of eyes, ears and brain focused on medical decisions, the advocate can provide reassurance and companionship to help ensure an elder gets appropriate care, gets answers to questions and otherwise ensure understanding concerning health care services that are recommended.  If you are thinking about getting a health care advocate, make sure it is someone whose judgment you trust and is someone who is not afraid to ask questions or stand up to authority in unfamiliar or stressful situations.

Now that I’ve returned from my spring pilgrimage, I’m back on schedule for weekly blogposts.  Please stay tuned.

 ©Barbara Cashman  2015   www.DenverElderLaw.org