ELDER PATIENTS, ELDER LAW, AND ADVANCE DIRECTIVES

1. ELDER PATIENTS, ELDER LAW, AND ADVANCE DIRECTIVES Glen Provost, J.D., M.P.H.

2. COLLISION OF INTERESTS • Personal autonomy • Family harmony • Public Safety

3. Older person's right to freedom of action (personal automony): “I’m old, I’m rich, and I want to kick up my heels.”

4. Concerns of family members and caregivers (family harmony): “Dad’s acting like an irresponsible old kook. He’s spending money like a drunken sailor, and my sister and I aren’t going to stand for it.”

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

6. GUARDIANSHIP

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

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

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

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

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

12. Legal/Ethical Issues Who is(are) the client/patient(s)? • The elderly person? • The spouse, the children?

13. Potential Conflicts • Between the elderly person and the spouse or children • Between the spouse and the children • Between the children

14. What role should an elderly person have in decision-making about what is in his/her best interests? • What if all parties have good intentions but can’t agree?

15. GUARDIANSHIP Reasonable response or last resort?

16. INCAPACITY An adult is considered to be incapacitated under Texas law: If, because of his/her mental or physical condition, the person is substantially unable: to provide food, clothing, or shelter; to provide for his/her own physical health; or to manage his/her own financial affairs.

17. AVOIDING GUARDIANSHIP • Medical Power of Attorney • Directive to Physicians (Living Will) • Durable Power of Attorney

18. Medical Power of Attorney (MPoA) A MPoA is a document signed by a competent adult designating someone the person trusts to make health care decisions on the person’s behalf shouldthe person be unable to make such decisions.

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

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

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

22. A Directive to Physicians allows the agent to make decisions on behalf of the patient only if the patient is in a terminal or irreversible condition. Even then, the agent’s decisions are limited to those regarding the withholding or withdrawing of the patient’s medical treatment.

23. The MPoA is broader in scope than the Directive and applies to virtually all health care decisions. The MPoA does not require that the patient be in a terminal or irreversible condition.

24. Under the MPoA the patient has to be incompetent before the agent can act on the patient’s behalf. Also under the MPoA the patient’s attending physician does not have to verify that the agent’s decision is consistent with the patient’s wishes or religious or moral beliefs.

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

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

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

28. The physician acted in good faith under the direction of an agent who has a MPoA, and • If the physician’s performance does not constitute a failure to exercise due care in the provision of health care services.

29. DURABLE POWER OF ATTORNEY The purpose of a durable power of attorney is to allow a person to appoint someone else to make financial decisions and transact business for him or her.

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

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

32. SPRINGING DURABLE POWER OF ATTORNEY • Texas law also provides for a “springing” durable power of attorney. • A springing power goes into effect only at the time the principal is determined to have become mentally incapacitated.

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

34. A guardianship is not a voluntary procedure, • The courts can force you to accept a guardianship, • Your guardian may take over control of your affairs, • Your guardian can even take over control of what happens to your physical person.

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

36. That’s all folks!

37. WEBSITES • www.txpec.org Texas Partnership for End of Life Care Go to “Community Education” then go to “Advance Directives.” • www.texaslawhelp.org Go to “60+ Elder Law.” • www.texasbar.com State Bar of Texas Go to “Additional Information for the Public.” Next go to “Consumer Legal Information.” Then go to “Elder Issues”.

38. www.dads.state.tx.us Texas Department of Aging and Disability Services Go to: “Forms & Handbooks.” Then go to “Advance Directives.” • www.texasprobate.com Private law firm website that provides most forms free of charge.

39. www.capitol.state.tx.us • Go to “Research” and then go to “Texas Statutes.” • Go to “Probate Code.” Chapter XII – Durable Power of Attorney Act Chapter XIII – Guardianship (Sec. 679 – Designation of Guardian Before Need Arises) • Go to “Health and Safety Code.” Then go to Chapter 166 – “Advance Directives.”