ELDER PATIENTS, ELDER ELDER PATIENTS, ELDER LAW, AND ADVANCE LAW, AND ADVANCE

DIRECTIVESDIRECTIVES

Glen Provost, J.D., M.P.H.Glen Provost, J.D., M.P.H.

COLLISION OF INTERESTSCOLLISION OF INTERESTS

Personal autonomyPersonal autonomy

Family harmonyFamily harmony

Public SafetyPublic Safety

Older person's right to freedom Older person's right to freedom of action (personal automony): of action (personal automony):

““I’m old, I’m rich, and I want to I’m old, I’m rich, and I want to kick up my heels.”kick up my heels.”

Concerns of family members and Concerns of family members and caregivers (family harmony):caregivers (family harmony):

““Dad’s acting like an Dad’s acting like an irresponsible old kook. He’s irresponsible old kook. He’s spending money like a drunken spending money like a drunken sailor, and my sister and I aren’t sailor, and my sister and I aren’t going to stand for it.”going to stand for it.”

Protecting the public’s safety:Protecting the public’s safety:

““I have a responsibility to the I have a responsibility to the public, and we have to get public, and we have to get codgers like them from behind codgers like them from behind the wheel before they kill the wheel before they kill someone.”someone.”

GUARDIANSHIPGUARDIANSHIP

Dangerous ConductDangerous Conduct

A 79 year old woman with A 79 year old woman with Alzheimer’s disease lives with her Alzheimer’s disease lives with her son in Houston. While her son is son in Houston. While her son is at work and her daughter-in-law is at work and her daughter-in-law is grocery shopping, she takes the grocery shopping, she takes the car keys and gets into her car to car keys and gets into her car to drive to see her sister in Phoenix. drive to see her sister in Phoenix. A few blocks from her son’s home A few blocks from her son’s home the woman unknowingly runs a the woman unknowingly runs a red light and hits and kills an red light and hits and kills an eight year old child on a bicycle.eight year old child on a bicycle.

An elderly man living alone in an An elderly man living alone in an apartment in a large complex apartment in a large complex decides to warm up food, turns decides to warm up food, turns on the stove, forgets about on the stove, forgets about cooking, and walks off leaving cooking, and walks off leaving the stove on. A fire starts which the stove on. A fire starts which burns down his apartment and burns down his apartment and severely damages the adjoining severely damages the adjoining apartments.apartments.

Foolish ConductFoolish Conduct

An elderly man with a history of An elderly man with a history of clinical depression buys a new clinical depression buys a new Lincoln Continental off the Lincoln Continental off the showroom floor. When he arrives showroom floor. When he arrives home with the car his wife is home with the car his wife is horrified. They have no money to horrified. They have no money to pay for a new car. She succeeds in pay for a new car. She succeeds in returning the car to the dealership, returning the car to the dealership, but only after an appeal to the but only after an appeal to the dealership's owner.dealership's owner.

Personal Well BeingPersonal Well Being

An 86 year old widow has lived An 86 year old widow has lived alone with the help of home health alone with the help of home health services for the past ten years. services for the past ten years. She is a diabetic with a sweet She is a diabetic with a sweet tooth. She has recently become tooth. She has recently become increasingly short of memory and increasingly short of memory and confused. She often forgets to eat confused. She often forgets to eat or only eats junk food. She refuses or only eats junk food. She refuses to move in with her son and to move in with her son and daughter-in-law. daughter-in-law.

Following a fall which fractured Following a fall which fractured her wrist, she is hospitalized. Her her wrist, she is hospitalized. Her son, in conjunction with the home son, in conjunction with the home health agency, decide it is best to health agency, decide it is best to place her in a nursing home. She place her in a nursing home. She is unhappy in the nursing home, is unhappy in the nursing home, objects to all aspects of her care, objects to all aspects of her care, and continually asks to be allowed and continually asks to be allowed to go home.to go home.

Legal/Ethical IssuesLegal/Ethical Issues

Who is(are) the client/patient(s)?Who is(are) the client/patient(s)?

– The elderly person?The elderly person?

– The spouse, the children?The spouse, the children?

Potential ConflictsPotential Conflicts

Between the elderly person and Between the elderly person and the spouse or childrenthe spouse or children

Between the spouse and the Between the spouse and the childrenchildren

Between the childrenBetween the children

What role should an elderly What role should an elderly person have in decision-making person have in decision-making about what is in his/her best about what is in his/her best interests?interests?

What if all parties have good What if all parties have good intentions but can’t agree?intentions but can’t agree?

GUARDIANSHIPGUARDIANSHIP

Reasonable response or last Reasonable response or last resort?resort?

INCAPACITYINCAPACITY

An adult is considered to be An adult is considered to be incapacitated under Texas law:incapacitated under Texas law:

If, because of his/her mental or If, because of his/her mental or physical condition, the person is physical condition, the person is substantially unable: to provide substantially unable: to provide food, clothing, or shelter; to food, clothing, or shelter; to provide for his/her own physical provide for his/her own physical health; health; oror to manage his/her own to manage his/her own financial affairs.financial affairs.

AVOIDING GUARDIANSHIPAVOIDING GUARDIANSHIP

Medical Power of AttorneyMedical Power of Attorney

Directive to Physicians Directive to Physicians (Living Will)(Living Will)

Durable Power of AttorneyDurable Power of Attorney

Medical Power of Attorney Medical Power of Attorney (MPoA)(MPoA)

A MPoA is a document signed by A MPoA is a document signed by a competent adult designating a competent adult designating someone the person trusts to someone the person trusts to make health care decisions on make health care decisions on the person’s behalf the person’s behalf shouldshould the the person be unableperson be unable to make such to make such decisions.decisions.

Directive to Physicians, Directive to Physicians, Families, or Surrogates (Living Families, or Surrogates (Living

Will)Will)The Texas Legislature created The Texas Legislature created the Directive to Physicians, the Directive to Physicians, sometimes referred to as a living sometimes referred to as a living will, to allow a competent adult will, to allow a competent adult to provide directives in writing to provide directives in writing that describe his or her wishes that describe his or her wishes regarding life support.regarding life support.

Texas Directive to PhysiciansTexas Directive to Physicians

The Directive (living will) can The Directive (living will) can only take effect if the attending only take effect if the attending physician examines the patient physician examines the patient and makes a written report that and makes a written report that the patient has a terminal or the patient has a terminal or irreversible condition.irreversible condition.

The attending physician also The attending physician also must have determined that the must have determined that the patient is so ill that he or she patient is so ill that he or she cannot make a decision (being cannot make a decision (being terminal alone is not sufficient).terminal alone is not sufficient).

A Directive to Physicians allows A Directive to Physicians allows the agent to make decisions on the agent to make decisions on behalf of the patient only if the behalf of the patient only if the patient is in a terminal or patient is in a terminal or irreversible condition.irreversible condition.

Even then, the agent’s decisions Even then, the agent’s decisions are limited to those regarding the are limited to those regarding the withholding or withdrawing of the withholding or withdrawing of the patient’s medical treatment.patient’s medical treatment.

The MPoA is broader in scope The MPoA is broader in scope than the Directive and applies to than the Directive and applies to virtually all health care virtually all health care decisions. decisions.

The MPoA does not require that The MPoA does not require that the patient be in a terminal or the patient be in a terminal or irreversible condition.irreversible condition.

Under the MPoA the patient has Under the MPoA the patient has to be incompetent before the to be incompetent before the agent can act on the patient’s agent can act on the patient’s behalf.behalf.

Also under the MPoA the Also under the MPoA the patient’s attending physician patient’s attending physician does not have to verify that the does not have to verify that the agent’s decision is consistent agent’s decision is consistent with the patient’s wishes or with the patient’s wishes or religious or moral beliefs.religious or moral beliefs.

An agent under an MPoA may An agent under an MPoA may make health care decisions on make health care decisions on the patient’s behalf only after the patient’s behalf only after the patient’s attending physician the patient’s attending physician certifies in writing that the certifies in writing that the patient is incompetent and then, patient is incompetent and then, places the certification in the places the certification in the patient’s medical record.patient’s medical record.

Agent LiabilityAgent LiabilityAn agent, acting in good faith, An agent, acting in good faith, will not incur criminal or civil will not incur criminal or civil liability for a health care liability for a health care decision made under a MPoA.decision made under a MPoA.

Physician LiabilityPhysician Liability

The patient’s attending The patient’s attending physician or other health care physician or other health care providers providers will not be subject to will not be subject to civil or criminal liabilitycivil or criminal liability or or disciplinary action if:disciplinary action if:

– The physician acted in good The physician acted in good faith under the direction of an faith under the direction of an agent who has a MPoA, andagent who has a MPoA, and

– If the physician’s performance If the physician’s performance does not constitute a failure to does not constitute a failure to exercise due care in the exercise due care in the provision of health care provision of health care services.services.

DURABLE POWER OF DURABLE POWER OF ATTORNEYATTORNEY

The purpose of a durable power The purpose of a durable power of attorney is to allow a person of attorney is to allow a person to appoint someone else to make to appoint someone else to make financialfinancial decisions and transact decisions and transact business for him or her.business for him or her.

DurableDurable means the power of means the power of attorney does not cease to be in attorney does not cease to be in effect should the principal effect should the principal become mentally incapacitated.become mentally incapacitated.

Before the Texas Legislature Before the Texas Legislature enacted the Durable Power of enacted the Durable Power of Attorney Act, a power of Attorney Act, a power of attorney was automatically attorney was automatically voided if the person became voided if the person became mentally incapacitated – often mentally incapacitated – often exactly at the time when it was exactly at the time when it was needed most.needed most.

SPRINGING DURABLE POWER SPRINGING DURABLE POWER OF ATTORNEYOF ATTORNEY

Texas law also provides for a Texas law also provides for a “springing” durable power of “springing” durable power of attorney.attorney.

A springing power goes into A springing power goes into effect only at the time the effect only at the time the principal is determined to have principal is determined to have become mentally incapacitated.become mentally incapacitated.

AVOID GUARDIANSHIPAVOID GUARDIANSHIP

Placing someone under Placing someone under guardianship means that the guardianship means that the court can take away virtually all court can take away virtually all one’s rights and give those one’s rights and give those rights to someone else. rights to someone else.

A guardianship is not a voluntary A guardianship is not a voluntary procedure, procedure,

The courts can force you to The courts can force you to accept a guardianship, accept a guardianship,

Your guardian may take over Your guardian may take over control of your affairs,control of your affairs,

Your guardian can even take Your guardian can even take over control of what happens to over control of what happens to your physical person.your physical person.

Use of powers of attorney, Use of powers of attorney, both financial and medical, both financial and medical, can essentially eliminate the can essentially eliminate the need for guardianshipneed for guardianship..

That’s all That’s all folks!folks!

WEBSITESWEBSITES

www.txpec.org Texas Partnership for www.txpec.org Texas Partnership for End of Life Care End of Life Care Go to “Community Education” then go Go to “Community Education” then go to “Advance Directives.”to “Advance Directives.”

www.texaslawhelp.org www.texaslawhelp.org Go to “60+ Elder Law.”Go to “60+ Elder Law.”

www.texasbar.comwww.texasbar.com State Bar of Texas State Bar of TexasGo to “Additional Information for the Go to “Additional Information for the Public.” Next go to “Consumer Legal Public.” Next go to “Consumer Legal Information.” Then go to “Elder Information.” Then go to “Elder Issues”.Issues”.

www.dads.state.tx.uswww.dads.state.tx.us Texas Texas Department of Aging and Disability Department of Aging and Disability ServicesServicesGo to: “Forms & Handbooks.” Then Go to: “Forms & Handbooks.” Then go to “Advance Directives.”go to “Advance Directives.”

www.texasprobate.comwww.texasprobate.comPrivate law firm website that provides Private law firm website that provides most forms free of charge.most forms free of charge.

www.capitol.state.tx.uswww.capitol.state.tx.us Go to “Go to “ResearchResearch” and then go to “” and then go to “Texas Texas

StatutesStatutes.” .” Go to “Go to “Probate CodeProbate Code.” .”

Chapter XII – Durable Power of Attorney ActChapter XII – Durable Power of Attorney ActChapter XIII – Guardianship (Sec. 679 – Chapter XIII – Guardianship (Sec. 679 – Designation of Guardian Before Need Arises)Designation of Guardian Before Need Arises)

Go to “Go to “Health and Safety CodeHealth and Safety Code.” Then go .” Then go to Chapter 166 – “to Chapter 166 – “Advance DirectivesAdvance Directives.”.”