Geriatrics: Legal Aspects PDF

Geriatrics: Legal Aspects Presented by C. Anthony ”Tony” Crnic, JD, MBA, LLM (Health Law) Elderly Population Statistics U.S. POPULATION ESTIMATES BY YEAR BY AGE COHORT 57,795 203,042 63,327 203,755 Under 18 years 18 to 64 years 71,183 75,828 204,803 207,133 65 years and over 78,294 209,269 79,832 21...

Geriatrics: Legal Aspects Presented by C. Anthony ”Tony” Crnic, JD, MBA, LLM (Health Law) Elderly Population Statistics U.S. POPULATION ESTIMATES BY YEAR BY AGE COHORT 57,795 203,042 63,327 203,755 Under 18 years 18 to 64 years 71,183 75,828 204,803 207,133 65 years and over 78,294 209,269 79,832 211,239 82,130 212,019 72,451 70,935 69,087 67,899 67,746 67,366 66,490 2022 2025 2030 2035 2040 2045 2050 Cohort % Change Under 18 years -6% 18 to 64 years 4% 65 years and over 30% Source: https://www.census.gov/data/tables/2023/demo/popproj/2023-summary-tables.html YEAR 2 Concerns Facing Aging Persons Appropriate care in appropriate location Lack of family support Asset preservation Maintaining adequate lifestyle Inheritances Mental capacity End-of-life decision-making 3 Reasons for Having Advance Care & End of Life Discussion Physicians’ Views Toward Advance Care Planning and End-of-life Care Conversations Conducted for The John A. Hartford Foundation, Cambia Health Foundation, and California HealthCare Foundation April 2016 Available at: https://www.johnahartford.org/images/uploads/resources/ConversationStopper_Poll_Memo.pdf 4 Medicare, Medicaid, and the Elderly 5 Income, Poverty, and Health Insurance Iowa Cohort in 2018 Median Income Poverty Rate No Health Insurance 65 & over $42,995 7.1% 0.2% All Iowans $59,995 11.2% 4.7% Source: State Data Center of Iowa & Iowa Department of Aging publication “Older Iowans: 2020” 6 Medicare Spending 7 Nursing Home Care Medicare does not pay for nursing home care generally (custodial care) but short stay after three-day hospitalization covered Medicaid can help pay for home & community-based services for elderly patients under a state waiver program in lieu of institutional placement (HCBS Waiver Program) HCBS Waiver Program eligibility Medicaid eligible as if the member was in a medical facility 65 years of age or older Be determined to need Nursing or Skilled level of care 8 Medicaid Income Eligibility Medicaid income eligibility in 2019 (Iowa Medicaid Enterprises) $2,313/month limit Resource limits $2,313/individual $4,626/couple $2,000/individual $3,000/married couple Applicant/non-applicant $2,000/$126,420 Asset limits Applicant must be at or below amount as of first moment/first day of month to be eligible for month If client is Veteran & not receiving benefits—advised to apply for Veteran’s benefits 9 Hospice & Palliative Care Benefit is elected upon eligibility To be eligible under Medicare, beneficiary must Be entitled to Medicare Part A AND Be certified by physician as terminally ill—medical prognosis for life expectancy is 6 months or less if illness runs normal course In electing, patient/representative acknowledges Patient been given full understanding of hospice care—particularly that it care is of a palliative rather than a curative nature AND Patient understands that certain Medicare services waived by election 10 Court Appointed Decision-Making 11 Guardianship (Iowa Code Sections 633.551 & 633.552) Individual appointed by the court to make personal and health care decisions for incapacitated person (ward) Types Limited Temporary Standby General (plenary) Appointment does not constitute a decision ward is of unsound mind 12 Guardianship ctd. Legal threshold—decision-making capacity so impaired that proposed ward Unable to care for personal safety or provide for necessities such as food, shelter, clothing, or medical care Without which physical injury or illness may occur Guardian powers with court approval Change ward’s residence Arrange major medical procedures Consent to withhold/withdraw life-sustaining measures Tip: healthcare power of attorney completed with this to assist in emergency decision-making 13 Conservatorship (Iowa Code Sections 633.551 & 633.566) Individual appointed by court for custody and control of the property or finances of the ward General powers of conservator Payment/receipt of property/income Sale/transfer of personal property With court order—invest funds & sell/lease/mortgage real estate Appointment does not establish ward to be of unsound mind 14 Conservatorship ctd. Legal threshold—proposed ward’s decision-making process so impaired that the person unable to make, communicate, or carry out important decisions concerning financial affairs Only a conservator has right to manage property of adult without consent 15 Office of the Public Guardian Established in Iowa Code Chapter 231E May act as an individual’s Guardian Conservator Attorney-in-fact under health care POA document Agent under financial POA document Personal representative Representative payee Eligibility Iowa resident 18 years of age or older No appropriate/responsible person to serve as substitute decision maker or Without adequate resources to compensate substitute decision maker https://iowaaging.gov/elder-justice-adult-protective-services/officepublic-guardian 16 Voluntary Decision-Making 17 General Principles “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” Schloendorff v. Society of N.Y. Hospital, 105 N.E. 92 (N.Y. 1914) (Cardozo, J.) Competent patients must give informed consent Competent patients have right to refuse or terminate life-sustaining medical treatment 18 Power of Attorney Written document by which one person (principal) gives to another person (attorney-in-fact) authority to act on principal’s behalf in one or more matters Principal must be able to understand what entering into Several types General powers – financial Limited powers or temporary Durable Health care 19 Health Care Power of Attorney Designates individual to make health care decisions on behalf of patient when patient is, in judgment of attending physician, unable to make health care decisions Revocable either written or orally Made to attorney-in-fact If health care provider currently providing health care services, may effectively revoke by communicating intent to revoke to provider 20 Health Care Power of Attorney ctd. Gives agent power to make health care decisions on patient’s behalf, including Give consent Refuse to give consent Withdraw consent to any care/treatment/service/procedure to maintain/diagnose/treat physical/mental condition Where otherwise consistent with laws of State of Iowaà consent to physician not giving health care or stopping health care that is necessary to keep patient alive Must act consistently with patient’s desires as stated in living will or otherwise made known 21 Advance Care Directive/Living Will Written declaration that informs medical personnel of person’s desire not to have life-sustaining procedures used If diagnosed as terminally ill; Cannot participate in decision-making process regarding treatment; and, Use of life-sustaining procedures would merely prolong the dying process Voluntarily executed by Competent adult Age 18 or older 22 Advance Care Directive/Living Will ctd. Signed in presence of two witnesses or notary public Must be age 18 or older Should not be members of family if possible Health care provider and employees cannot be witnesses Witnesses must sign Declaration made in another state or jurisdiction consistent with the law of Iowa will be valid in Iowa to extent declaration consistent with Iowa law 23 Combinations of Decision-Making Authority Allowed to combine differing types of authority in one document 24 Iowa Physician Order for Scope of Treatment (IPOST) 1-page, double-sided document Consolidates & summarizes patient preferences for key life sustaining treatments including: CPR General scope Antibiotics Artificial nutrition & hydration Patient may Refuse treatment Request full treatment Specify limitations 25 Iowa Physician Order for Scope of Treatment (IPOST): Details Complements advance directives by putting patient wishes into actionable medical orders Signature of physician requires order to be followed across entire continuum of care Intended for Chronically, seriously ill person in frequent contact with healthcare providers Person with life-limiting illness Frail & elderly already residing in nursing facility Standardized form easily & quickly understood by patient and providers 26 Iowa Physician Order for Scope of Treatment (IPOST): Process Must be completed by a health care professional based on Patient treatment preferences AND Medical indications Must only be signed by a physician, physician’s assistant, or nurse practitioner to be valid Verbal orders acceptable with follow-up signature by valid signee in accordance with facility/community policy Photocopies and faxes of signed IPOST forms are legal & valid 27 Iowa Physician Order for Scope of Treatment (IPOST): Ownership, Requirements, and Best Practices Belongs to the patient Must accompany patient upon all transfers between health care settings Must document when sent with patient Advise patient to keep in easily accessible location that ambulance service can easily find if nobody present Envelope Baggie on refrigerator 28 Iowa Physician Order for Scope of Treatment (IPOST): Additional Statutory Provisions Does NOT replace or invalidate a prior durable power of attorney Healthcare providers given legal protection when honoring IPOST form directives Permits transfer to another provider if moral concerns with IPOST 29 Substitute Decision-Making Hierarchy If no advance care directive—treatment decisions may be made, in front of a witness, by the attending doctors, and any of the following Power of Attorney Court appointed guardian, if any (court approval required) Spouse Adult child (what if multiple children?) Parent(s) Adult brother or sister 30 End of Geriatrics: Legal Aspects 31