Select Page

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

Elder Law Kaplan, UIUC, 2016 Outline
 
 
What is Elder Law?
Nutshell Chapter 1 | Supplement Chapter 1
 
Older people are becoming a larger part of the population
Increasing age means increasing medical costs and increasing care giving burdens
Sandwich generation – caring for young children and old parents simultaneously
More older people contracted out to third party institutions/providers
Older Americans accumulated more wealth than ever before
Social security was adopted when numbers were lower, so the government didn’t think it would be paying for most people
The average life expectancy then was 61 years old
Now the fastest growing 10 year cohort = 84-94 years
After age 65:
Men expected to live 17.8 more years; women expected to live 20.4 more years
Marital status
¾ men married, ½ women (more men b/c women are outliving husbands)
Gay marriage will lead to another group of people in the future
For purposes of social security
State of celebration v. state of residence determines whether you’re considered ‘married’ for purposes of social security
Increasing ethnic diversification of aged cohort
Racial diversification has almost doubled
Aged cohort is the most homogeneously Caucasian of any in US
White Americans think you should be told about medical conditions
Projection Caucasian cohort will decrease and Hispanics and other minorities will increase
A relatively small percentage live in nursing homes
3.6% of population; 9/10 people 85 and older do not live in a nursing home
Private market has responded to idea that older people can’t live independently but don’t need full services of nursing home
Population by state
Florida largest; IL- 7th largest in terms of number of old people
More older people = more economic/political power
Percentage of people who vote goes up with age; midterm election; disproportionate impact on who sits in Congress
People don’t have a problem with social security/Medicare
People know they’re going to get old and might not have people to take care of them
Families are not stepping up now
Women are working and can’t take breaks from their jobs/retire
Families are no longer geographically rooted
 
THEMES OF ELDER LAW
Intentional pro-active planning
Empowerment
Enabling older citizen to control what happens to his/her assets
Enhancing autonomy for extended life
Future is unpredictable, but want preferences to be reserved for elderly
 
 
Ethics in Context
Nutshell Chapter 2 | Supplement Chapter 2
 
Ethics in Context
Two main questions: Who is the client? Is the client competent?
 
Who Is the Client?
Generally, older person is the client
Elder law attorney owes duties of diligence, communication, confidentiality to the older person
Lawyer may not generally represent someone whose interests conflict with the older person’s interests
Cannot be a concurrent conflict of interests
If there is, lawyer can only represent if
Reasonably believes he will be able to provide competent and diligent representation to each affected client and get informed consent confirmed in writing
Can represent older person when legal costs are paid by someone else if
(1) Older person is informed and consents and (2) payment doesn’t interfere with judgment
Must always consider possibility of undue influence
Pressure from family to take control of elder’s bank account, especially if living with them
 
Client Competency
Client must understand what is being discussed, comprehend the need for a particular document, understand its general operation
Law’s general presumption of client competency
Capacity is not a yes or no question—no standardized procedure or universally accepted definition of determining a client’s capacity
Unwise/inappropriate decisions = different than legal incompetency
Model Rules say to consider and balance factors:
Client’s ability to articulate reasoning leading to a decision
Variability of state of mind and ability to appreciate consequences of a decision
Substantive fairness of a decision
Consistency of a decision with client’s known long term commitments and values
Video taping clients making will, etc.
But then have to videotape every client to avoid discussion that you must have video taped this one b/c you questioned competency
Mental status examinations
Degrading?
Test attention span, memory recall, reading and writing skills, language comprehension
Lawyer may seek guidance from an appropriate diagnostician
But medical diagnosis of dementia can differ so not the solution
Can alter practices to maximize older clients’ capacity
Shorter meetings, larger type documents, facing client, speaking slowly
“May take reasonably necessary protective action”
For client with diminished capacity at risk of substantial physical, financial, or other harm
Petition court for appointment of conservator or guardian
Can reveal confidential information to extent reasonably necessary to protect client’s interests
Can follow clients wishes so long as not harming any other person or the client’s interests
Maintain as close to normal of a relationship as reasonably possible
Can act in emergencies to protect client’s interests so long as “status quo”
 
 
Controlling One’s Medical Destiny
Nutshell Chapter 3 | Supplement Chapter 3
 
Issue of controlling one’s medical destiny comes about recently because of advances in medical technology allowing for longer life expectancy
No more family doctors
Decisions often made by providers who have never seen this patient before
Physician has no idea what this person wants/what their values are
NOTHING IN A LIVING WILL IS PERTINENT IF THE PERSON IS STILL COMPETENT!
Study of people 80 years or older in hospital diagnosed with cancer or heart disease shows they value quantity over quality of life: maybe people at that stage in life have a different perspective
Want to live as long as possible even if in pain and in poor health
People in hospital and need decision making b/c not competent
Advance directive – 67%
Living will alone (making declarations as to what want) – 7%
Durable power of attorney (just designate someone) – 22%
39% have both
Culture
Idea that the patient has control/autonomy to make these decisions which the predominant culture sees as enhancing their autonomy, many cultures see as abandoning
Hispanic- family should be the decision maker
Blacks want more aggressive life sustaining treatment regardless of cost
Blacks think it’s very important to have wishes in writing, but only 33% do. Whites also think import

$$$ for treatments that the individual/family did not want
Quinlan
Generated living wills
Cruzan
Resulted in
Health care surrogacy statutes; durable powers of attorney in those states that didn’t already have them; patient self-determination act
Terri Schiavo
Although she didn’t have a health care directive, under the state of Florida, husband has sole authority
If family members don’t want to accept that, can go to court, but don’t change result
No federal and or state changes have been made since
The Aging Network
Nutshell Chapter 16 | Supplement Chapter 4
 
Area Agencies on Aging
 “Our role is to plan, coordinate, and advocate for the development of a comprehensive service delivery system to meet the needs of the older persons…”
Principle focus is to leverage private sector services
Meals on wheels
Special insulation in homes
To enable people to live safely AT HOME
Federal government provides most of the money and state general revenue provides the rest
Large part is administer local elder abuse program
Wildly oversubscribed, more people want to get in them than can; waitlists for many services
Geriatric care managers
Surrogate daughter
Doing what a family member could do, but family members don’t feel comfortable
Because no history/baggage, can come in and make decisions
Study shows
Group with geriatric care management over time go into a nursing home permanently MUCH LESS and need less assistance with basic activities of daily living
BUT also might be more expensive for people because required to make more frequent visits to doctor (which adds up)
Geriatric and Chronic Care Management Act of 2005
Extends Medicare coverage to include geriatric assessment and chronic care management
Attempting to get preventative care like this covered by Medicare
Did not pass—does not have the force of law
Theme: what is the proper role of government v. private?
Elder Abuse
Financial exploitation is most frequently reported
Kids of elder are actually concerned about money, and report evidence
Anyone is allowed to make a complaint
Social workers and medical personnel reporting, then relatives, then victims (least)
Mandated reporters under Elder Abuse and Neglect Act
Attorneys are not included in mandates (duty of confidentiality)
Pathology of where you might expect elder abuse
Poor health and functional impairment in elderly person
Cognitive impairment
Substance abuse/mental illness on part of abuser
Dependence of abuser/victim
Shared living arrangement
External factors causing stress
Social isolation
History of violence