Select Page

Elder Law
University of Illinois School of Law
Kaplan, Richard L.

Elder Law
Spring 2013
Ethical Considerations (Chapter 2)
Who is the client
●     A lawyer shall act with reasonable diligence and promptness in representing a client
●     A lawyer must reasonably consult with the client about the means by which the client's objectives are to be accomplished and must keep the client reasonably informed about the status of the matter
●     A lawyer shall not reveal information relating to representation of a client unless a client gives informed consent
●     A lawyer may not generally represent someone whose interests conflict with the older person’s interests
●     The Model Rules do permit representation of multiple generations as long as there is no concurrent conflict of interests
●     If there is a conflict, the lawyer may represent the client, but only when the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, and each client gives informed consent, confirmed in writing
●     A lawyer must consider whether a potential conflict of interest will materially interfere with the lawyer’s independent professional judgment in proposing alternative courses of action
●     Solution 1 – disclosure: a written disclosure to the client that lawyer is representing more than one family member
●     Solution 2 – withdrawing from representation: an attorney might consider withdrawing from the engagement, but only if such action does not have a material adverse effect on the interests of the family members involved
Client Competency
●     The lawyer may not be able to establish a lawyer-client relationship if the older person does not have sufficient legal capacity
●     Without the requisite legal capacity, much of the planning that elder law might involve is simply not available, and guardianship must be considered
●     There is no standardized procedure or even universally accepted definition of competency
●     The Model Rules merely admonishes lawyers to consider and balance such factors as:
○     the client’s 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
○     consistency of a decision with the known long-term commitments and values of the client
●     Determining competency:
○     Administer simple mental status exam
○     Have a mental health professional assess the older person’s mental capacity
○     Seek guidance from an appropriate diagnostician
○     MMSE
●     A lawyer may take reasonably necessary protective action for a client with diminished capacity who is at risk of substantial physical, financial or other harm
●     A lawyer may reveal information about the client that would otherwise be confidential, but only to the extent reasonably necessary to protect the client’s interests
Controlling One’s Medical Destiny (Chapter 3)
Doctrine of Informed Consent
●     For the most part patients can initiate care and refuse it
●     Personal autonomy reflects individuals ability to control their own bodies and is an essential component of personal liberty
●     To make a meaningful decision, the patient must have enough information to understand the consequences of the decision, its risks and benefits, and the possible alternatives – the patient must be provided with sufficient information to be able to give meaningful consent to proposed medical care
●     The right of a competent patient to die:
○     it is generally accepted that a competent adult may refuse medical treatment even if that decision results in death
○     The death comes as a result of the disease, not because of self-inflicted injury
○     An individual is under no obligation to prevent the natural course of illness even if it might result in death
Mentally Incapacitated patient
●     Defined: mental capacity is a legal term that refers to the capability of an individual to make a reasonable decision based upon an understanding of reality.
●     The law presumes that all adults have mental capacity, a presumption can only be rebutted by sufficient evidence of a lack of mental capacity
●     Patients must be capable of understanding information – they need sufficient capacity to understand what they are being told.
●     Patients must understand the supplied information, comprehend the consequences of acting on that information, be able to assess the relative benefits and dangers of the proposed action, understand possible alternative treatments, and be able to provide a meaningful response to the question of what should be done
Surrogate Decision Making for Incapacitated person
Formal: Use of Guardians
●     If the individual is unable to grant consent because of lack of capacity, an alternate decision maker must be identified
●     Upon the filing of a guardianship petition with the appropriate court, a hearing is held to determine whether the patient is legally incapacitated – if incapacitated the court will appoint a guardian to make medical decisions for the person
●     In most cases the guardian can make all decisions required, but sometimes they will go to the court to be guided with the proper decision
●     The guardian’s decisions are imputed to the incapacitated person so that, in effect, the incapacitated person continues to control medical decisions, albeit through a guardian.
Informal: family members making decision = no legal standing to do so
Formal: Advanced Healthcare Directive
●     Defined: Refers to written directives that give direction or guidance as to an individual’s future medical care in the event of mental incapacity
●     This can refer to either an attempt to specifically state the kind of treatment a patient wishes to have, or it can refer to an attempt to appoint a surrogate decisionmaker who will have a greater or lesser amount of discretion as to the form of health care to be given to the maker of the directive
●     May or may not be followed – only ends up in court when there is a disagreement
Formal: State surrogacy laws
●     Establish a priority as to who may speak for an incapacitated patient usually beginning with the spouse, adult children, parents, siblings, and so forth
●     Substitute Judgement Standard: Requires a surrogate for an incapacitated person to act in a manner consistent with how the patient would have behaved in the circumstances
●     Best Interest Test: Surrogate must do what is best for the patient
●     In case the incapacitate person did not appoint someone to act for them when they became incapacitated
Living Wills: Limited Applicability
●     Contain treatment instructions in the event the individual becomes either terminally ill or is in a persistent vegetative state.
●     The living will explains the type of medical care desired by the individual, and under what condition life-sustaining treatment should be initiated or discontinued.
●     Factors:
○     applies only in situations in which the individual becomes men

this permits persons to name who should be their guardian in the event one is needed
●     The Uniform Health Care Decisions Act: permits any ault or emancipated minor to create an advance health care directive that can either be a durable power of attorney for health care  or an individual instruction
Termination of Life Sustaining Treatment without a Formal Advance Directive
●     In re Quinlan: dad wants to end life sustaining treatment
●     Griswold v. Connecticut: right to privacy
●     Barber v. Superior Court of State of California: Medical personnel can’t face criminal charges
Assisted Suicide/Euthanasia
●     Oregon: only state where assisted suicide is legal
●     Euthanasia: the goal is to put a consenting individual painlessly to death who is suffering from an incurable disease – not legal anywhere
The Aging Network – Elder Abuse and Neglect (Chapter 16)
●     Abuse can be defined as a physical or mental mistreatment or injury that threatens or harms an elderly person
●     Abuse can take place either by actively injuring the older person, or by inaction that permits that person to be injured or harmed
●     Neglect refers to the willful refusal to provide services necessary to maintain an elderly person’s physical or mental health
●     Exploitation refers to the financial abuse of individuals by the repeated improper or illegal use of their assets
●     Physical abuse is any conduct that results in mental distress or physical injury
●     Psychological abuse is generally used to coerce the elderly individual into behaving in ways acceptable to the abuser or to destroy his or her free will in regard to their life choices or property management
○     Threaten to put elderly into a home or else
Noninstitutional Abusers
●     The abuser is most often the caregiver because a caregiver is usually one of the few people who has repeated interaction with the abused and thus the opportunity to commit repeated assaults
●     The abused person often puts up with the abuse or exploitation for fear of losing what benefits the abuser provides, or, in extreme cases, because the abuser prevents the abused person from notifying anyone else of the abuse or neglect
●     most abusers profit from their abuse, often financially. In some instances the abuse is designed to hasten the victim’s death, so that the abuser can inherit or steal property
●     Because abuse is a form of control, it is not always clear what is abuse and what is merely firm control
●     Neglect is the most common form of abuse
●     Active neglect is more culpable – it includes deliberate abandonment or refusal to provide essential health and nutritional needs
●     Neglect can only occur if there is a duty of care that arises out of a legal relationship or from creating a reliance expectation