Legal and Health Law Issues of the Elderly: Are You Prepared?

by | Mar 12, 2019 | Blog, Western Medicine | 0 comments

This article is based on episode #17 of A Bridge To Wholeness podcast. You can listen to the episode on iTunes, Stitcher, and on our website.

Jennifer Crisp, RN: Hello, everyone. This is Jennifer Crisp, your host of A Bridge to Wholeness podcast. We welcome you today to this very special episode. I have a wonderful guest today, and this is a topic that’s going to be very near and dear to pretty much everybody’s heart. So I’m very honored today to have as our guest, Robert Wells, a principle attorney with Miles and Stockbridge in Baltimore, Maryland. Robert practices health law, and our topic today is, as I said, something very near and dear to my heart, and something that I think we all really need to be very well informed about. That is legal issues of concern to the aging population and health law issues that surround that.

This is a topic that really requires a lot of knowledge. I’m just going to start off by saying that I’ve lost both my in laws, both my parents. They’ve all passed on. There was a lot to deal with, a lot to deal with when they were alive and in their last years, in their declining health. So I just really think that it’s important that we let people know what’s available out there and what you as an attorney can really help us to learn about. So can you really explain why it’s important that we deal with our aging population in a way that sets them up legally and medically comfortable in their declining years? I know that’s a weird way to ask the question, but there’s so much to cover here. So why should we bother with it?

Robert Wells, Esq.: Yeah. It’s a great question. Most of us will go through it at some point, either with ourselves or with our parents or loved one, or we’ll see a friend that is going through the aging process. I think it’s important to understand and know what resources are available to help assist in doing that well. What I mean by doing it well, I think, is by having a thoughtful plan for how you want to take care of your healthcare needs, how you want to take care of your personal property and your personal estate, how you want things to be done with regard to how you age.

The only way to really take control of that is to be thoughtful and planfull about it. You and I have spoken about this before because, if you’re not thoughtful and planfull about it, then you run the risk of simply having the options taken away from you. You could have a situation where you become incapacitated and you don’t have the ability to make decisions for yourself, and you’ve now taken options off of the table with regard to what it is you may have wanted regarding your own aging and process.

It’s also important because, as we age, one thing that goes along with that is we tend to, at some point, maybe work less or not work at all. So you have issues related to income and fixed income for most people, and how they receive healthcare and what types of healthcare they receive and who they receive it from becomes very important. That’s why I think it’s important to be thoughtful and planfull about how it is that you want to prepare for the aging process for yourself individually, and also to help loved ones to prepare.

Jennifer Crisp, RN: I agree with that wholeheartedly. I know that, even though in my situation with my parents, they were prepared. There was still, even with the preparation and the things that were in place, it was still challenging. So I think that’s even more reason to plan and have those things in place, don’t you? Because even when you have them in place, it can still be challenging.

Robert Wells, Esq.: No, absolutely because, if you think about the things that happen, if we think about them from a personal perspective, when a friend or a loved one, or a family member is aging and going through … particularly if they’re going through an illness, and worse a chronic illness, it’s stressful. So even if you have thought about and talked about, and documented what you want to do and how you want to handle it, it’s a level of stress and anxiety that, in every situation, is going to be new. The reason it’s new is because you may have … While you may have been through it before with another relative or a loved one, or a spouse, every individual is different, and every circumstance is different.

So the stress and the anxiety that’s brought about by these natural aging processes are just going to always be present.

It strikes me that the components of it that you can control and prepare for in advance, are certainly helpful to reduce some of the stress that is simply going to occur. The stress, anxiety, the unknown things that are simply going to happen and occur. We’ve all been through it. I recently went through it myself with a great-aunt.

My mother and I were helping to provide care for her. She was in a nursing home out of state.

Jennifer Crisp, RN: Oh wow, that’s even more challenging when it’s out of state.

Robert Wells, Esq.: Yes. In that situation, it wasn’t’ a great situation. Just from a personal perspective, I can just say, my great-aunt had not done very much preparation. It was the worst of scenarios where she suddenly became incapacitated, and then decisions had to be made for and about her by other people. So again, I think it’s important to try to be thoughtful and planfull about how you prepare for the aging process.

Jennifer Crisp, RN: I know people are familiar with power of attorney, but can you tell us what … and is that a great way to start with something? Let’s say you want to … You have an aging parent and they’re still relatively in good health, but you’re starting to see some things happen. I know there’s different powers of attorney, so can you explain the difference between having a financial power of attorney for your relatives versus medical power of attorney, and what the difference is and why it even matters?

Robert Wells, Esq.: Yeah, an individual can have a power of attorney for some limited purpose. So you mentioned the distinction between a financial power of attorney and a medical power of attorney. So a financial power of attorney, I’m just going to use some general examples. A financial power of attorney may have access to your bank accounts and be able to pay bills and to take care of your financial obligations. A medical power of attorney, sometimes it is a person who is authorized to make medical decisions on your behalf in the event that you are unable to make those decisions.

One of the things sometimes you hear people talk about, or the phrases that you will hear, or terms that you will hear are advance healthcare directives where you provide guidance on how you want to be treated or how you want to be handled at end of life or in the event that you are incapacitated.

Those are documents that are helpful to have in place where you’d have an advance directive. For example, I’ll just use a very personal example because this is literally what I just went through recently. You and I have recently talked about, is a situation where my aunt had a seizure, but had a full code advance directive. She was over 90 years old. She didn’t have an advance directive to not do a full code. It provided a very stressful situation for everyone who was involved. An appropriately executed advance directive from her would have probably eliminated that situation.

Medical power of attorney would be very important too because it could have allowed someone else to make medical decisions on her behalf.

Jennifer Crisp, RN: Yes. I know that also working in the hospital, when I had a patient who came in and did not have an advance directive and didn’t have any type of powers of attorney, we would offer that to them. Hospitals will usually offer you that. They’ll say, if you would like to have an advance directive, we can bring the document to you. You can sign it. We’ll have it taken care of. The beauty of an advance directive is that it does give direction to say, you know what, I only want such and such, or I don’t want to be a full code.

But I do want people to understand that, even though you have an advance directive in the hospital, in order for that to actually work for you, the doctor has to look at the advance directive and they have to write an order called a do not resuscitate. That’s what they actually use to either bring you to a full … use a full code or not the full code, or give you medicine or not give you medicine. So the advance directive is just one step in that when you’re actually in the hospital setting. That’s something I think people really need to understand. You still have to have a doctor’s order. Unless that’s changed.

Robert Wells, Esq.: No, no, that’s correct. One other point I’d like to make because although we’re talking generally about advance directives, we were focused, I believe, on end of life.

I think that one thing that is very important for people to think about is the … I’m going to talk about it generally. We have significant laws to protect the privacy of healthcare information. So individuals have the ability to limit or restrict others from receiving their healthcare information.

The act that most people have probably heard of, HIPA. When you go to a new doctor, a new healthcare provider, you’re typically provided a HIPA policy that says how they’re going to protect your information and what they can and cannot do with it. But one important piece of that also is the ability for patients and individuals to authorize others to have access to their health information.

Jennifer Crisp, RN: Oh, that is such a great point. Thank you so much for that.

Robert Wells, Esq.: Yeah, and it’s something that is often overlooked and not really thought about. So for example, I go to the doctor. When I’m at my doctor and he gives me that HIPA authorization, there may be people … I may want my mother to have access or my spouse to have access, or I may have a relative that’s in the healthcare field that I think would be really helpful if I am having early signs of dementia, and there’s someone in my family that is likely to be a caregiver, that they can have access to my health information, because absent that authorization, if you have control of your mental capacities, your healthcare provider will not be able to provide your health information to any other individuals absent your expressed authorization.

Jennifer Crisp, RN: That’s a great point and you know what? As much as I know about this, because I do know a lot because I have been through it. That is one thing that I had to really go through several times with my own parent, with my own father, because after my mother passed and then I became more involved in his healthcare, none of those HIPA things had been signed. So every time I would call to even make an appointment or to get some type of result, they’d say, “Well we can’t give you that information.” Then I had to go through that whole process of getting to the office and signing papers, and getting him back in. That happened over and over and over again, so I’m really glad you brought that up.

Robert Wells, Esq.: Yeah. Let me also tell you why it’s important in some very bad situations. Again, some of this we learn from our own experience. I’m an attorney, so some of it I learned because I hear from clients. I typically represent healthcare providers, longterm care providers, nursing homes, CCRS. As a consumer, on the patient side, if an individual is incapacitated, HIPA allows healthcare providers to share information with certain designated individuals. So for example, if I were in a coma and couldn’t respond, then the healthcare provider could share information with my spouse.

There are stationary protections to relay information if you happen to be incapacitated. But imagine a scenario, and I don’t have to imagine it hard because I literally just lived it personally, where there was no individual who fell within the statutory requirement.

A niece doesn’t fall within that, and certainly a great-nephew doesn’t.

My great-aunt had no surviving children. She had no surviving spouse. She had no sisters. So, in essence the last week, no one was able to obtain healthcare information.

As we watched her deteriorate. Even though I’m in this industry and I know better. When we were going there for one of our last visits, I realized, I don’t think we have a HIPA authorization. We need to get one today. But we never got a chance to get it that day because she was incapacitated. So that’s the reason that being planfull, thinking ahead, who you want to have access to your health information, what you want to do in control about your healthcare condition, how you want to manage your finances in a state through either a state administration or a will. Those types of things are important that you think of ahead of time.

Jennifer Crisp, RN: Yeah. I agree with you wholeheartedly on that. As I said, I’m a nurse, so I come from that medical side of it in dealing with it when the patient’s in the hospital. It can be very confusing for families, and even the other healthcare providers themselves.

The staff in the hospital don’t always have an understanding of this as you think they might. So you really do have to advocate for yourself, and I think that that’s a … and to educate yourself about this is really super important.

So one of my questions to you was what happens when an elderly person is unable to care for themselves any longer and they don’t have a family member to step in, but I think we just addressed that. So really, what you’re saying … Let’s kind of revisit a little bit of a summary of what we just spoke about. What are the steps that you recommend in order to get either ourselves ready for transition later in life. We hope a lot later. Or for our elderly parents or relatives?

Robert Wells, Esq.: Yeah. I think there are great resources available, particularly in Maryland. Maryland, under the Department of Health, has a separate division, the Maryland Department of Aging. The Department of Aging has a program. It’s called the 60 Plus Legal program. That program makes available to people 60 or over, or their caregivers, resources and information about planning, that are related to planning the aging process. So they can assist with … The initial consultations are free. Subsequent consultations or provision of documents, there’s a modest fee. I think it’s maybe 20, 25 dollars, so relatively modest fees. They can provide things like wills or help you prepare wills, help you prepare power of attorney, help you with your advance directives to the extent that you need to make property changes or deed changes.

So I think that having a checklist … and the situation will be different for every individual because some people won’t have property issues, or some people won’t need longterm care. They don’t need to think about going into a nursing home. They have a caregiving situation at home already set up with family members. I would advise that you look to those resources, particularly at the Department of Aging, to plan for yourself the types of documents that you may need to facilitate this aging process.

The other thing of course is the provision of your healthcare. You said, Jennifer, you talked about what do you do when you can’t care for yourself. There are lots of residential settings that are designed for people to receive different levels of care. So Maryland has, and most states do have, assisted living facilities where you’re relatively independent, but you’re part of a community. To nursing facilities where you have access to skilled nursing care.

There is information about all of these facilities. I think it’s important for people to know, and I’ve talked even to relatives. They have this misconception about these facilities that they’re awful facilities and why would we ever want to be part of this facility, and that they’re simply unregulated, and they just take elderly people and put them in these facilities and just wait for them to die.

I’d say nothing could be further from the truth in virtually all cases. These facilities are highly regulated. They are subject to significant standards that are set at the federal and state level. They are all subject to investigation where they call them surveys. So they are routine surveys to ensure that they are meeting quality standards. Residents and their family members have the ability to make complaints, and those complaints are then looked into, and survey information is … surveys are conducted related to those complaints.

Maryland, as most jurisdictions, has a longterm care Ombudsman program, where that program is also part of the Department of Aging.

Jennifer Crisp, RN: And that’s county by county too, isn’t it?

Robert Wells, Esq.: That’s right. So all of that information can be found on the Department of Aging’s website. If you just google Maryland longterm care Ombudsman, you can get the information.

Jennifer Crisp, RN: Yeah. There is a lot to think about with the assisted living communities and the nursing homes, and the rehab. We call them rehab now instead of nursing homes a lot of times. I did an episode about elder care and just what to look for when you go into an assisted living place to check it out to see if it’s appropriate for your relative because there are so many different price ranges, even in those types of environments, that you’ve gotta be aware of that even when you’re going in, and really what to be aware of. I came at it, of course, from a medical point of view. It’s things that you do have to be aware of when you’re checking them out to make sure that it’s a good match, that it’s a good match for your relative because you want to make sure that they are going to thrive inside that community.

Robert Wells, Esq.: Yes. So of course, there’s nothing like the sight test, the eye test.

If you go and just do an eye test and you see how you feel and how your relatives feel about a particular facility. I personally have worked with friends, relatives … and probably because I’m in the industry, so I know this. When I mentioned earlier that there are these regulatory surveys or audits … They’re more like audits, but these audits of whether or not a facility is meeting the requirements, the standards to caring for patients. That information is public.

So you can get scores or information about particular facilities. I just point out that I don’t know if there are any facilities that have no flaws because the regulations are extensive.

But they’re scored on scope and severity scores. So I think that if you see a facility that is routinely or regularly having serious problems, were residents are having actual harm in a facility, versus a facility that is having more minor issues related to responding to a complaint about the quality of food.

Not unusual. You just have to make some judgment calls, but there is a great deal of information available.

Jennifer Crisp, RN: So I’m glad you said that because I think what we’re really trying to say today to people is, begin this research soon. Don’t wait. Do your due diligence. Seriously, you want to make sure that, if you’re looking at this for yourself and your spouse, that you start years ahead of time. Years ahead of time. Like you said, Department of Aging at the age of 60, you can find out this information and they can head you in the right direction.

I just really think, if we’re really looking at it and we say, “Okay, think about going to the Department of Aging and looking at those things like advance directives and what a will entails, and how to go about starting that process because, when we have those things in place, it’s easier for our family members when that time comes.

Robert Wells, Esq.: No, absolutely. I wholly agree and would recommend that individuals google the Department of Aging, search the site. It’s fairly easy to use. There’s significant resources available at the state and local level. So no matter where you are, you’ll be able to readily contact a resource that can certainly provide you some assistance.

Jennifer Crisp, RN: Well thank you very, very much Robert for your time today. I think this type of information is so very important. I know you said your main client is not the general public perse, but you actually really work with the healthcare providers themselves, correct?

Robert Wells, Esq.: Yes, typically. Yes, typically. I’ve been practicing healthcare law for 20 years now.

I’ve represented different types of providers and regulatory compliance and corporate issues, including longterm care providers, hospitals and physicians. But it has made me familiar with certainly the consumers issues. As we talked about a little bit today … You and I have talked about in the past, I’m one of those consumers.

Jennifer Crisp, RN: We are all going to be one of those consumers.

Robert Wells, Esq.: That’s right.

Jennifer Crisp, RN: Sooner or later that is the truth. Okay Robert, so if there’s any healthcare providers or physician practices, or nursing homes, or regulatory places that need more information from what you can provide, how can they reach out to you?

Robert Wells, Esq.: Oh sure, yeah. I can be reached. My email is rwells@milesstockbridge.com. Anyone can certainly feel free to call me at 410-385-3655.

Jennifer Crisp, RN: Well, thank you so much. I think this was one of the most important episodes that I have done so far with this podcast. Please share it with everyone that you know. Thank you everyone for tuning in today.

To listen to this episode on the podcast, find us on iTunes or Stitcher. You can also listen to it on our website by clicking here.

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