William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Month: October 2017

The Difficult Decision of Long-Term Care

By Sara Sapia, Elder & Disability Law Clinic Student, Fall 2017

As their loved ones age, many people must confront how their parents, grandparents, or partners will continue to be cared for as their physical and mental health declines. According to the Family Caregiver Alliance, approximately 69 percent of people over the age of 65 are expected to develop disabilities before they die, and 68 percent are likely to become unable to perform at least two activities of daily living or become cognitively impaired as a result.[1] So how do you decide what to do as a child, grandchild, or spouse when you witness your loved one’s health deteriorating?

‘Do I put them in a home?’ is one question that often comes to mind. The negative stigmas associated with nursing homes persist, including allegations of abuse, maltreatment, and neglect. On top of that, many people feel a sense of guilt or abandonment when they place their loved one in a nursing home, assuming that by doing so they are ‘giving up’ on them, and therefore often seek to avoid nursing homes altogether. Family dynamics can also come into play here, as a child may have promised his parents that he would never put them in such a home or his parents expressed that they wish to have a family member care for them instead. I must admit that when I think of my own parents I hope to be able to care for them myself into their old age and know I will do everything I can to keep them in a comfortable, safe environment as they grow older. I have also seen them struggle with these same concerns related to their own parents.

Long-term care by a family member, however, is not always possible. Potential caregivers typically have their own families and expenses and may not be financially capable of cutting back on their hours at work, or even quitting their job, to care for an aging family member. In addition, they may have their own chronic health conditions that prevent them from physically caring for someone else. To adapt to the needs of an ever-increasing elderly population, many new caregiving alternatives have been created. These include assisted-living facilities, continuing care retirement communities, in-home care services, and active adult daycare centers, all providing less restrictive means of aid for aging seniors, depending upon their level of disability. These provide families who are faced with aging loved ones options other than total care by a family member or admission to a nursing home to consider when looking for a safe, reliable, and comfortable plan for long-term care.

Because of the varying nature and costs associated with each of these options, it is important for family members to discuss their expectations for long-term care up front and ideally before a loved one’s health has deteriorated to the point where long-term care is necessary. Estate planning documents, such as a healthcare power of attorney and a living will, can also play a key role in these decisions. Ultimately, a person’s long-term care plan is a personal decision to be made by him and those closest to him based on his health, finances, and preferences.

[1] https://www.caregiver.org/selected-long-term-care-statistics

A Simple Question with a Complex Answer: Determining Competency

By Chris Everett, Elder & Disability Law Clinic Student, Fall 2017

The presumption that a person is competent is well settled in the American legal system. However, in elder law, this presumption oftentimes needs to be challenged. Many elder law attorneys deal with clients who seem to be disoriented and uncommunicative, which gives rise to the question of whether or not that client is truly competent enough to be making legal decisions. On its face, competency seems to be a very simple question. Most people see the question as black and white, with an obvious yes or no answer. The reality, however, is something far more complex. Competency exists on a continuum. Clients may have the ability to make some decisions but not others. As such, it becomes difficult for the elder law attorney to determine whether or not their client is truly competent enough for the task at hand.

Thankfully, various ways exist to ensure that the elder law attorney is not mistaking some of the common disabilities of old age with the symptoms of legal incapacity. It is important to structure each interview with a client in an environment that maximizes the capacity of the client. Interviews with the client should be conducted in a stress free environment. For some, this could mean meeting with the client in the comfort of their own home. It is important to speak slowly and succinctly, while at the same time maintaining a level of professionalism that allows the client to feel respected. In addition, meetings should be scheduled during times that are comfortable for the client. Meeting earlier in the day can help to ensure that the client is mentally sharper and more alert, helping to increase the productivity of the meeting.

Attorneys should develop and follow a consistent and deliberate process to check their clients for capacity. Questions to the client should be posed in a way that allows them to respond in depth. This allows attorneys an opportunity to check their client’s ability to articulate reasoning behind his or her decisions, as well as their ability to appreciate the consequences of their decisions. It is important that attorneys are not tricked by slow responses from their clients, or by requests to repeat their questions. A client with a diminished capacity is not necessarily incompetent. On the contrary, clients with diminished capacities often have the ability to understand, think about, and reach conclusions about matters affecting themselves. It is therefore imperative that attorneys take the time to familiarize themselves with the techniques used to determine the level of competency in their clients.

Deeming a client to be incompetent is not a decision that should be made lightly. One consequence of this could be the appointment of a guardian to the client. This appointment would cause the client to lose his or her right to make legally binding decisions, to vote, to own property, and to make medical decisions. In a sense, the appointment of a guardian is one of the most restrictive things that could happen to an individual. With this in mind, an attorney should not find a client incompetent unless it is absolutely necessary. Ultimately, it is this responsibility that makes the techniques and understanding of competency so important for an elder law attorney.