ELDER LAW OUTLINE KAPLAN SPRING 2012
· What is Elder Law?
o Elder Law encompasses a lot of different areas and is predominantly done by solo firms. May include:
§ Long term care, estate planning, social security, computer fraud, living wills, etc.
· ETHICAL CONSIDERATIONS WHEN ADVISING THE ELDERLY (nutshell 2)
o Who is the client?
§ The Model Rules of Professional conduct require that a lawyer reasonably consult with the client about the means by which the clients objectives are to be accomplished (R 1.4(a)(2))
§ The lawyer must not reveal information relating to the representation of a client unless the client gives informed consent (1.6(a))
§ Usually, third parties accompany the elderly. The lawyer must ascertain the exact role of the people. Are they driver, confidant or support?
· Lawyer should request a letter concerning what persons will be accompanying them
§ There is no bar on treating a whole family as a client, the lawyer must believe that they are capable of providing diligent representation to each affected party and each client must give informed consent, confirmed in writing. 1.7(b)(1). The lawyer should mention conflicting interests, and that confidentiality may be compromised.
· Letter stating who is the client or getting informed consent is critical.
§ Third party family involvement creates a potential for undue influence among the family members requiring the lawyer to examine client and family behavior
o Daughter wants to change will to reflect her work as primary caregiver to elderly mom, likely to draw a challenge by disadvantaged heirs
§ Can formalize into a caregiver agreement
§ Maybe a trust for kids, making mom’s intent clear
§ The mother can make gifts to each kid, 12k no tax
§ Bargain with other family members
o Son asks you to open a joint account
§ What is the need for a joint account? What financial position is the son in?
· The lawyer should be attuned to religious and cultural differences underlying different levels of child involvement. NAELA Quarterly article
o Is the client competent? MUST HAVE COMPETENCY FOR ALL DECISIONS
§ For a decision to have a legal effect, a client must understand the subject matter, the need for the document, and its general operations
§ Some clients lose capacity slowly, may be under influence of drugs, or have periods of lucidity at different times of day. However, eccentricity or unwise decision-making is not the same as incapacity.
§ Factors that should be examined when determined capacity include:
· Clients ability to articulate reasoning leading to a decision
· Variability of state of mind and ability to appreciate consequences of a decision
· The substantive fairness of a decision
· The consistency of a decision with the known long term commitments and values of client
§ The capacity required varies with the importance and complexity of the choice that is to be made
· Hypo: wife wants to sell of securities but the elderly person rejects
o Find out why the client doesn’t want to sell? Explain the consequences of not selling.
o Rate or return? Is he waiting until death so that there is no tax on capital gain?
§ Some circumstances may require drastic action. MR provide that a lawyer may take reasonably necessary protective action for a client with diminished capacity who is at risk of substantial physical, financial and other harm. 1.14(b)
· Reasonably necessary information to protect client’s interest may be revealed in spit of client-lawyer relationship. 1.14(c). The lawyer may seek the appointment of a conservator or guardian.
· CONTROLLING ONE’S OWN MEDICAL DESTINY – Chapter 3
o Doctrine of informed consent
§ The patient has a right to choose the kind of treatment or refuse medical treatment
§ The patient must be provided with sufficient information to be able to give meaningful consent to proposed medical care
o A medical provider who treats a patient without the patient’s consent may be liable for battery or medical malpractice. Schloendorff. This protection is constitutionalized in a person’s right to privacy. In Re Quinlan.
§ Emergency exception: the doctrine does not apply in case of emergencies where the patient is unable to consent but is in need of immediate care.
§ Privilege exception: in narrow cases the doctor may also forgo informing a patient where information would threaten the life of the patient or render them incapable of making a rational decision.
o Doctrine arises from goal of patient autonomy and self-determination. However, to make a meaningful decision, the patient must have enough information to understand the consequences of the decision, its risks and its benefits, and possible alternatives. It has become more of an issue as healthcare has advanced.
§ Surveys indicate that most people want to live as long as possible. Slightly less want to live when cognitive impairments arise.
§ Cost is often blamed. Because people carry health insurance cost is not of consequence to them.
o The right of the competent patient to die
§ It is generally accepted that a competent adult may refuse medical treatment even if that decision results in death. Courts do not treat this as suicide because death is the result of the disease and not because of a self-inflicted injury.
§ In suicide cases, the federal government argues the classical state interest:
· The state’s general interest in the preservation of life
· The protection of the interests of innocent third parties, minor children
· The prevention of suicide
· The maintenance of the medical integrity of the medical profession
o Incapacitated patient
§ Where a person is incapable of giving informed consent to medical treatment decisions, doctors must determine that incapable means and who is capable of giving informed consent for the incapacitated patient
· Mental capacity – the capacity of an individual to make a reasonable decision based on an understanding of reality; the law presumes that all persons are competent and that can only be rebutted by clear and convincing evidence of a lack of mental capacity
o The level of requisite capacity differs depending on the act in question (medical v. investments)
o In order to give informed consent, the individual must understand the supplied information, comprehend the consequences of acting on the information, be able to assess the relative benefits and dangers of the proposed action, and be able to provide a meaningful response to the question of what should be done
o Advanced health care directives
§ Advanced health care directive – a broad legal document allowing person (principle) an opportunity to authorize an agent to make legal decisions for people when they are no longer able to do so. It may limit power to the types of treatments or categories. The level of power that can be delegated is a matter of state law.
o Living wills (avoidance of life-sustaining treatment) – caringinfo.org for forms
§ Living wills – serve the same function as advanced medical directives. They are a document by which a person may control their medical care in the event of a permanent disability or terminal illness as defined by state law.
· Incapacity – partial death of the brain, where patient cannot recover
· Terminally ill, will die shortly
· Other things state do not allow: dementia
§ The will should contain:
· In the case of incapacity, that the instructions on the form should govern
· It should state under what conditions life-sustained treatment should be terminated
o Courts often require clear and convincing evidence of the patient’s intent before permitting termination of life-sustaining treatments
· For the will to be executed it must:
o Be witnessed by persons with no potential conflicts of interest
o Living will only valid and operative when shown to the attending physician, however, there are generally no penalties for failing to follow the will.
§ Studies indicate that admitting clerk fails to note existence of living wills 40% of the time, or the patient or others fail to present.
§ May advise clients to use advanced directive and living will director
Seen as an act of mercy by a dying patient who prefers to terminate existence rather than proceed through a painful death. Treated as homicide, except for in Oregon.
§ Oregon statute requires:
· Physical illness that will cause death within 6 months
· Must take 2 requests 2 weeks apart
§ Surveys indicate that the reasons for seeking euthanasia are:
· Loss of independence, poor quality of life
· Wanted to control circumstances of death
· Saw continued existence as pointless
· Physical pain
§ People requesting it tend to be
· All white, ½ males, 69 years
· 15 died, 2 still alive
· Elder Abuse and Neglect (Ch. 16)
o Elder abuse – the sustained physical or psychological assault of an older person. Abuse and neglect are distinguished from criminal behavior by their repetitive nature. A single incident is not neglect.
§ Almost always arises between parties with an ongoing relationship.
§ About 5% of all 65+ are abused
· Physical abuse – any conduct that results in mental distress or physical injury. It can be active or passive.
· Psychological abuse – also extremely debilitating and inhumane; most common are threats to place someone into a nursing home if that person does not behave in a way demanded by the abuser
· Exploitation – financial abuse of individuals by the repeated improper or illegal use of their assets
· Self-neglect: the refusal or inability of an older person to provide for themselves with the services necessary to provide for their well-being
o Risk factors of abuse
§ Poor health and functional impairments
§ Cognitive impairments that may lead towards aggressive and disruptive behavior toward caregiver
§ Abusers are likely to be substance and alcohol abusers or suffer from mental illnesses
§ Abusers financial dependence on the victim
§ Social isolation, abuser may try to isolate the person
§ History of violence
o Most common type of reported abuse is financial
§ Money is appealing to all people, easier to justify. In CA, if a person abuses an elderly person, they are disinherited.
§ It is most likely to be reported by financial institutions and other family members
§ Increase in regular amounts taken out, number of withdrawals, insistence on cash, strangers talking to customers
§ Remedy is also easier, disgorgement of profits, whereas in physical abuse there may be criminal sanctions
o Institutional v. non-institutional
· Most often the caregivers, children, and other family members
· Most abusers profit financial from their abuse, may also derive psychological satisfaction or simply make it easier to control
· Passive v. active
o Sometimes it is passive, meaning an unconscious or unintended failure to fulfill caregiving obligations.
o Active negligence is more culpable; it includes deliberate abandonment.
· Active neglect: includes the deliberate abandonment or refusal to provide essential health or nutritional needs.
· Regulation is lax, although many states have lists of prohibited criminal pasts, most were given a waiver to continue working
· Abuse may be used to gain control or extract bribes