William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Author: laciccone (page 2 of 2)

Living Wills versus DNRs

By Allison Prout, Elder & Disability Law Clinic Student, Spring 2017

You’ve probably heard of a DNR—it stands for “Do Not Resuscitate.” Either you have one, or you’ve heard it mentioned on one of the myriad doctor shows on TV. Many clients haven’t heard of a living will, and those that have assume that living wills are interchangeable with DNRs, because both deal with end-of-life treatment decisions. In fact, DNRs and living wills don’t do the same thing at all! This post highlights the crucial differences you need to know about DNRs and living wills so you can decide which one is right for you!

What’s the Difference?

A living will explains how and when you want to receive medical treatments if you become incapacitated (think, in a vegetative state, or terminally ill). Basically, it tells the doctor to do whatever s/he can to save you.

With a living will, you can first decide how you want to be ruled incapacitated (having at least two physicians rule a patient incapacitated is standard). You can then decide how you want to be saved— do you want to be kept on artificial life support? How do you want to receive treatment? Which medications do you want to be given, and how much (just enough to alleviate pain?)? Are you comfortable with being put on mechanical ventilation?

A DNR, on the other hand, does the opposite of a living will. A DNR tells the doctor not to take life-saving measures should you stop breathing or should your heart stop; specifically, it directs the doctor not to perform CPR.

Why Have a Living Will or DNR?

If you have a living will or a DNR, you’ve given yourself all the power: You get to decide how you want to be treated, so if you aren’t able to make that decision when the time comes due to incapacity, you’ve already set the ground rules! You’ve already determined how you want your end-of-life treatment to work.

What’s more, we recently had a client who was concerned about her children having to make difficult decisions once she enters a hospital and can’t make decisions for herself. With a living will or a DNR, you make it easier for your loved ones, who may be struggling with what decisions to make, by telling them what your wishes are.

So, with a living will on file, you’ve given yourself the power to decide that you want life-saving measures to be taken. Alternatively, with a DNR, you’ll ensure that your wish for no life-saving measures to be taken is honored. Either way, you’ll be taking a proactive step now to ensure you’re protected in the future!

Nobody Thinks They Need Long Term Care Planning, Until They Do. For Some, That May Be Too Late.

By Lance Cummins, Elder & Disability Law Clinic Student, Fall 2016

For many people, the concept of planning for the future just brings to mind the thought that they need to write out a will, but there’s more to it. With the average life expectancy in the United States being around 80—it was only 47 the last time the Cubs won the World Series before this year—people can often expect to live many years after retirement. However, for some people, those years will not always be healthy, and healthcare expenses can take a toll on the retirement accounts of even the best planners.

Recently I had the misfortune of seeing someone I know forced to retire early due to a diagnosis of Frontotemporal Dementia (FTD). FTD is similar to Alzheimer’s, and in its early stages is often misdiagnosed as such. FTD tends to first affect language skills like speaking, writing, and comprehension. Personality changes, resulting from changes to the brain in areas controlling conduct, judgment, and empathy, often make caring for individuals with FTD difficult. While uncommon, FTD tends to begin much earlier than Alzheimer’s, often affecting people in their 40’s and 50’s.

In this case, the person affected was an accountant who always kept a close eye on his retirement accounts and knew exactly how much he had, how much he needed to retire on, and how and when he was going to get there. Once his symptoms forced his retirement, however, all of his retirement planning quickly went out the window.

At that point, the proper thing to do would have been to immediately consult with an elder law attorney in order to ensure that he could be placed into long term care when it became impossible to care for him at home, without leaving his wife without the benefit of all their advanced financial planning. For example, Medicaid may be used to help pay medical expenses for an institutionalized spouse, while allowing the non-institutionalized spouse to retain a portion of their assets and retirement funds. However, Medicaid will only allow the non-institutionalized spouse to retain a limited amount of any retirement funds, requiring all the money over a certain amount to be used to defray medical expenses before Medicaid will kick in to help. To guard against people either spending or giving away all of their money right before applying for Medicaid, the government has a five-year lookback period. That means that when applying for Medicaid, the government will examine the applicants’ finances over the past five years to see if any assets have been shifted away, and will then impose a penalty period, which essentially means Medicaid benefits will not kick in for a period of time in an effort to recoup the missing money.

In this case, with the help of an elder law attorney early in the process, the couple could have made some financial decisions to do something with their retirement money sooner, outside of that five-year lookback period. Perhaps they could have enjoyed his retirement for a few years while he was still able to do so. They could have taken care of some long delayed repairs to the house or bought a new car to replace their twenty-year-old vehicle that constantly needed repairs. They could have set up a trust, or transferred ownership of some assets. Regardless of what they would have chosen to do with their money, with proper planning they would have had the power to choose.

Instead, they did what most of us would do. They slashed their spending and saved every penny they could for the inevitable medical expenses that were sure to come. FTD can be a slow moving disease at first, and they planned to stretch things out for as long as possible. Even as the disease progressed, they refused to take any drastic financial action, feeling that keeping that money in the bank was the wisest course.

Unfortunately, a few weeks ago he had to be rushed to the hospital. While the immediate danger is past, it is unlikely that he will be able to live at home ever again. What does this mean for them? In short, it is too late to do much of anything. The vast majority of the money they have kept sitting in the bank all this time will have to be spent on nursing home care before Medicaid will help. While some limited options still remain, once he has been institutionalized for 30 days even those options will be gone. Medicaid will look back to the first day of the month he was institutionalized, and whatever assets they had on that day will be required to be spent, minus her allowance, before they will pay anything.

The takeaway from this should be to plan before you think you need to do so. We never know when disaster will strike, and with the complexity of Medicaid rules, common sense things like saving your money may not always be the best approach. Consulting an experienced elder law attorney early, before you think you need them, and before it’s too late for them to help, can be critical to averting disaster later.

Guardianship: Giving up Freedom or Gifting Security to your Loved One

By Casey Wynn, Elder & Disability Law Clinic Student, Fall 2016

Have you ever heard the saying “age is but a number?” Typically, it is a harmless phrase that is thrown around when a friend has a birthday or a loved one is celebrating retirement. It is fun to say, and uplifting for others to hear, but nothing could be further from the truth when talking about a mentally challenged senior.

Unlike members of the general population which have the capacity to protect themselves against abuse, manipulation, and fraud, a mentally disabled person is more vulnerable to these dangers and may even have difficulty making important life decisions. When that struggling individual is a child, the solution is simple– his or her parents can and do make all the important medical and life decisions because the law gives them that authority. However, what happens when your precious child becomes an adult who is mentally unable to make decisions but legally holds the right to do so? In those cases, it may be time to seek guardianship because age does matter and could prevent you from helping your child in ways that you have in the past. Guardianships are used for mentally incapacitated individuals of all ages who are unable to make sound decisions regarding their own well-being and financial security.

Some people will avoid instituting a guardianship, seeing it as an affront to a loved one’s freedom. This is an understandable reaction considering American culture. At a young age, we are taught the value of freedom and few, if any, words are considered more precious.  Freedom may seem like a simple word, but for centuries brave men and women have valiantly fought to ensure that Americans remain free. Reflecting upon these sacrifices makes it difficult to give up our own freedom and gut wrenching to take someone else’s freedom away. But before  eliminating all possibility of a guardianship, there are a few things to consider.

While it is true that guardianships take away an individual’s right to make legal and personal decisions for himself; in return it gives him protections that are not otherwise available. Without a Guardian, a mentally incapacitated individual is more likely to fall victim to poor decisions and/or outside influences. Now that doesn’t mean that you should rush out to seek guardianship over all your adult relatives who make poor choices, nor would the system allow it. The beauty of this process is that the court decides when a guardianship is appropriate based largely upon a medical evaluation and the input of a court-appointed lawyer referred to as the Guardian ad litem. Put simply, if an individual has the mental capacity to make decisions and understand the consequences of those decisions, then guardianship will be denied. Also, note that guardianships are not always forever; they can be reversed via a court ruling if circumstances change. Lastly, guardianship is a fantastic planning tool for caregivers. Although it can be difficult to think about, it is important to consider what should happen to our dependent loved ones once we pass on or are no longer able to care for them. If a successor guardian is included in the guardianship petition, it makes for a much smoother process once the primary guardian is no longer able to serve due to death, illness, or for other reasons.

Thus, guardianships shouldn’t viewed with disgust; they should be embraced as a way to protect our loved ones. A guardianship doesn’t change who the person is. They are and will forever be their own person and nothing stops the Guardian from considering the individual’s wishes when making these important decisions. While freedom is one of the most important things a person can have, when that freedom endangers a person’s health or financial security, a guardianship is often best gift that we can give.


Dignity & Dementia

By Elias Kerby, Elder & Disability Law Clinic Student, Fall 2016

“Dementia does not rob someone of their dignity, it’s our reaction to them that does.” This quote by dementia and Alzheimer’s care expert Teepa Snow speaks volumes about the hidden suffering of those living with one of the most common disabilities among the elderly – dementia. One of the biggest hurdles to overcome in improving the quality of life of any disabled individual is understanding their obstacles and their experiences so you can best give them the respect and dignity they deserve.

I used to work at a hospital, and my boss would always refer to the Sylvia Plath poem “The Eye-Mote” when trying to explain what dementia patients who are unable to communicate really want. The poem, which is about Plath’s own extended hospital stay where she was unable to move or speak, shows the experience of being trapped in a body from the patient’s side. She spends weeks lying in a hospital bed, aware but locked in, unable to communicate her needs and stuck passively watching as caretakers and visitors shape the world she lives in. My boss would point to a specific line and say that it crystallized the needs of those living with dementia – “What I want back is what I was.”

That hospital required caretakers had to go through an exercise known as the “simulated dementia experience,” which was meant to give them a taste of what life with dementia is like. I went through the simulated dementia experience, and would recommend something similar to anyone who works with dementia patients.

First, rubber gloves are taped to your hands to simulate a lack of feeling and dexterity. Then, popcorn kernels are put in your shoes to reproduce the fibromyalgia of just moving around. You receive goggles that block out certain colors and have randomly appearing blind spots, as well as headphones that play a random selection of noises – cars honking, the phone ringing, music from your youth – everything having to do with your senses and experience of the world becomes chaotic and unpredictable.

After you’re suited up, a caretaker reads you a list of instructions for cleaning up your room at a care facility and getting ready for bed at night. Of course, you can’t hear him because your auditory hallucinations are too loud. He then leads you into your room, which is dark and messy with random flashes of light and strange sounds coming from places they shouldn’t. You know you’re supposed to be doing something, but not sure what, so you look to the printed instructions on the wall – which at this point you can’t read because the letters are jumbled up or missing. Time goes by, you surrender because trying to figure out what you’re supposed to do is futile, and you feel frustrated at your inability to act. Eventually, the caretaker comes back, sees you have not gotten ready for bed, and yells at you for not doing what he said.

From the caretaker’s point of view, he took you to your room and gave you simple instructions to do things you’ve done a thousand times before. He thinks he’s given you all the instruction you need but is unaware of how difficult everything is on your side of the equation. Without exercises like this, the hospital caretakers might make the same mistakes the caretaker in the simulated dementia experience made, and which caretakers of dementia patients do make all the time. Situations like this give rise to much of the vulnerability dementia patients feel, where the difficulty of daily life is made worse by our inadequate response to their needs.

The Elder & Disability Law Clinic is devoted to the dignity, care, and respect of dementia patients and seeks to promote a fuller understanding of the experience of living with dementia. Every person is deserving of being treated with dignity, and dementia patients are often at their most vulnerable. Treating dementia patients without understanding their condition can make them feel like they have no dignity, which should never be the case. The EDLC is committed to promoting informed care practices so that every caretaker can have the resources they need to be well-equipped in caring for their dementia patients.

Cultural Differences in the Ways We Care For Our Elders in America

By Agata Przekop, Elder & Disability Law Clinic Student, Fall 2016

As someone who comes from what we can generally call Eastern culture, I would like to share my thoughts and observations about differences in social conventions when it comes to older people and issues that affect the aging population.

American values tend to focus strongly around youth and individualism, while Polish people tend to identify themselves as a part of a collective society. This distinction comes from different cultural assumptions, traditions and challenges that the two nations faced in their histories. Of course there are people in Western culture that are strongly family oriented and have extremely close ties with their parents and grandparents, and people from Eastern culture that are more future-oriented, independent and self-reliant. However, I think it is fair to say that there are some, more or less defined general cultural assumptions and principals that characterize both those worlds. For example, in an Eastern country like Poland, it is not that uncommon to find a family of multiple generations living under the same roof. Because of this, it is far more likely that when a parent or a grandparent needs daily assistance, a family member will treat it as his duty to step up as a caregiver. Because of this social expectation, it is uncommon to put an elder person to a nursing home or assisted living facility. Younger family members are not only expected to become caregivers of their elders, they would expose themselves to a social ostracism if they didn’t follow this convention.

In collective societies, the tradition is to depend on one another, and to build strong family ties, while Americans, from very early in their lives, are taught to consider themselves as separate individuals who are responsible for their own lives and decisions with strong emphasis for personal freedom and independence. I think that it is this feeling of losing independence and becoming a burden on the family which determines the older Americans willingness to accept the possibility of moving to a nursing home.

In the Eastern culture, there is an assumption that children have a moral obligation to take care of their parents when they get older, and a devoted, family-oriented child is a sign that he or she was raised properly. While in Western society, successful parenting implicates teaching a child how to be self-reliant, and loosening of a parent-child tie is a natural process.

Being a part of a family-oriented society results in implied respect, understanding and empathy towards older people, but family obligations can also prevent individuals from moving forward and pursuing their own dreams. On the other hand, being independent and self-reliant helps one to become successful in life, but lack of those traditions that impose responsibility for one’s elders might result in a situation where older generation is left to their own devices and their needs are forgotten.

Having all the in mind, I’m positive that those two cultures can learn from each other and inspire one another. It is our job to create a society and environment for our elders which make them feel comfortable. The key is to treat our elders in a way we would like to be treated, and we cannot forget that we’ll all grow our gray hairs someday.

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