Archive for June 2011
Definitions of Incompetency
As we and our loved ones age, we worry about losing our edge, and even becoming incompetent. If we are worried about a family member’s ability to continue to make good decisions, we may talk to their doctor about whether the person is still competent to manage his own affairs.
Whether someone is competent is actually a legal, not a medical decision. Only a court can make the official determination of whether a person has sufficient understanding to make or communicate decisions. What’s more, someone can have the capacity to make some decisions, but not others. For example, in order to make or sign a will, a person only needs to demonstrate that he understands the scope of his estate and “the objects of his bounty” (in other words the people to whom he wants to leave it). However, that same person may require a conservator because a physical or mental condition causes him to be unable to effectively manage his property or financial affairs.
Mental health professionals will often determine that a person is incompetent because she has been diagnosed with a condition that affects cognitive ability from which she will not recover, such as Parkinson’s Disease or Alzheimer’s Disease. While this individual may eventually be determined to lack legal capacity, the diagnosis alone does not mean that she is not able to receive and evaluate information to make and communicate decisions at any given moment. People at early stages of these conditions are often very capable of understanding and executing powers of attorney and other legal documents. Moreover, the fact that the person may have difficulty remembering that she has signed such a document does not mean that she did not have a full understanding of what she was doing at the time.
The best way to avoid a conflict about whether a person had the capacity to sign powers of attorney or estate planning documents is get them done when you are young and unquestionably in control of all mental faculties. Accidents can occur at any age, and disease can creep up on us when we least expect it. Planning ahead is the best defense.
The Life Care Living Law Firms Association
Discovering the Life Care Planning Law Firms Association (“LCPLFA”) almost three years ago helped me define the way in which I would be serving seniors and their families in my practice of law. The members of the LCPLFA are committed to “helping clients and their families navigate the long term care and healthcare system and advocate for good care during their – or their loved one’s – journey through the elder care continuum.” (www.lcplfa.org). This organization has provided me with a wealth of information and tools to enhance my ability to fulfill this mission for my clients and their families.
This past weekend, the Board of Directors of the LCPLFA met to review our mission, vision and most recent strategic plan to make sure that we are on the right track. We all agreed that we are absolutely committed to our interdisciplinary practice model, which enables us to use the expertise of both human services and legal professionals to solve the challenging issues that confront our aging clients and their families. Many members of our organization are including additional professionals, such as insurance experts, on their teams, to assure the most comprehensive solutions possible. We spent much of our time together discussing how we might educate our communities and potential clients about the availability of this planning model, as opposed to seeking a specific transaction or document, or waiting until it is too late to do much advance planning.
Once our facilitator synthesizes the notes she took on dozens of flip chart pages and develops the draft of our plan for the next 3 years, I look forward to enhancing my own practice, so I can provide even more value to the seniors and their families whom I have the privilege of serving.
Living Wills and DNR Orders – Just the Beginning of the Conversation
A physician friend who knows I speak about the importance of Living Wills and Advance Directives shared the column of Dr. Nathan Laufer in the June issue of Maricopa County Medical Society’s ROUND-UP magazine (go to www.mcmsonline.comfor the electronic version). Dr. Laufer shares several poignant stories about patients who requested “no code” orders without understanding that they were therefore refusing simple procedures that would allow them to leave the hospital more quickly, or not permitting hospital staff to place them on mechanical life support during surgery. In Dr. Laufer’s experience, many patients who are given a checklist upon their admission to the hospital do not understand the implications of the “no code” or “Do Not Resuscitate” boxes, and admissions staff do not provide adequate explanations, or may not even be asked to do so.
The practice of requiring patients to state their preferences on DNR orders, or to complete Living Wills, dates back to the Patient Self-Determination Act of 1991, which requires healthcare facilities to discuss advance directives with incoming patients. Estate planning attorneys, and then state legislatures, followed with Living Wills that allow individuals to state their preferences regarding care – and the withholding of care – in more general circumstances. (See www.azag.gov/lifecareplanning for a Living Will form that meets the requirements of Arizona law.) Still, more than two-thirds of all Americans, including almost half of us who are over the age of 65, have not completed Advance Directives. Dr. Laufer points out that, even when those directives are in place, it is hard to tell whether the information is available to the care providers in a manner that could affect their treatment decisions.
I often point out that the best thing about completing advance directives are the family discussions they generate. Many parents are surprised to learn that the child to whom they would like to give their Medical Power of Attorney has a completely different view about end-of-life care than they do. In the best of these situations, the parent’s request that their child take on this role inspires an important conversation about values and the way our perspective on death changes as we age. The legal document does not necessarily provide the answers, but it does provide the starting point for family members to ask the right questions of each other.
Dr. Laufer points out that the Living Will and DNR Order should serve the same purpose between physician and patient. He encourages doctors to ask their patients whether they understand the implications of the boxes they have checked and what they might want to have done in specific situations. Laws, mandatory procedures and statutory language can only go so far, and none of them can take the place of honest discussion between patients and their doctors and family members.
Collaborative Efforts to Address Alzheimer’s Disease
This was the title of the opening session at the Annual Public Conference of the Arizona Alzheimer’s Consortium (AAC) held in Peoria last Friday, June 3. It reflects the bringing together of medical, research, political, elder law and social resources to address the public health issue of Alzheimer’s and related dementias. It was my first exposure to the Consortium and I was impressed with the caliber of presenters and their dedication not only to the treatment of this disease, but the support and recognition of caregivers. The AAC (www.azalz.org) is the nation’s leading model of statewide collaboration in Alzheimer’s disease research. Alzheimer’s disease is more prevalent than ever before simply because we are living longer. So we all have a stake in research to discover new treatments, making sure that treatments are available to those who can benefit from them, and helping people with the disease maintain dignity and helping caregivers cope day to day.
