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Elder Law: Health Care Directives and Medical Rights

Elder law generally refers to those legal issues that affect those who are sixty-five years or older. The older population in the United States has grown significantly in recent years, in part due to the aging baby-boomer generation. According to the Administration on Aging, in the year 2000, approximately 12.4 per cent of Americans were age sixty-five or older. The Center for Disease Control and Prevention expects those age sixty-five and older to make up close to 20 per cent of the US population by 2030. With this rise in the older population, the focus on legal issues affecting older people has increased.

One of the most important issues for older Americans is who will make decisions regarding their health care in case of incapacitation or incompetence and what those decisions will be. Many people utilize an advance medical directive, which is a document made at a time when a person is mentally sound and used to direct medical treatment in the future. Every state has enacted some type of legislation regarding advance medical directives, but those laws vary widely from state to state. It is important to consult a lawyer with expertise in this area when developing an advance medical directive.

Many people write a living will to provide for the possibility of incapacity. A living will is not actually a will, but a document that gives instruction as to how a final medical situation should be handled. For example, a living will can direct medical providers to not resuscitate if the heart stops or terminate life support systems in the event of a terminal illness or brain death. It can also direct providers to take all possible measures to sustain life. Living wills usually do not take effect until a person is diagnosed with a terminal condition and death is believed to be imminent, or when the patient suffers from a permanent vegetative state. One should be aware that living wills are not always honored for a number of reasons, including the medical facilities' concerns over liability and the failure to inform family or friends regarding the living will.

Another option for planning for final medical care involves placing the decision-making power in the hands of a trusted friend or family member. Through the use of a written document known as a durable power of attorney, a person can appoint a third party to make major health care decisions in case of mental incapacity. The document can detail the person's wishes regarding health care in certain situations. Of course, it is important to select someone who understands your wishes and knows what you would want them to do if the situation arises.

In cases where a person becomes physically or mentally unable to communicate his or her desires regarding health care decisions and does not have a durable power of attorney, a guardian may be appointed through an involuntary court hearing. The guardian may or may not be a friend or relative and may be granted very broad decision-making power. The process of appointing a guardian is often time-consuming and expensive. Also, it may be difficult to find someone who is willing to be appointed as guardian.

Older persons also must prepare themselves for the possibility they may be required to move to a nursing home. Nursing homes that receive Medicare or Medicaid funds are regulated by the Nursing Home Reform Act (NHRA). The NHRA sets forth the requirements nursing homes must meet to become licensed. The NHRA also outlines the rights of nursing home residents, which include privacy, confidentiality and freedom from abuse and restraints.

The Patient Self-Determination Act of 1991 requires all facilities that accept Medicare and Medicaid — such as hospitals, skilled nursing facilities, home health agencies, hospice programs and HMOs — to keep written policies and procedures guaranteeing that all adults receiving medical care will be given oral and written information concerning their options as to what type of care they receive. It is important to note that this legislation does not guarantee the patient a right to have their final wishes followed.

Various state laws also regulate nursing homes. State governments have programs in place that are responsible for reviewing the quality of care provided by nursing home facilities and have the power to investigate complaints or abuse. Many states have established hotlines so that anyone who witnesses or suspects elder abuse can make anonymous reports to state protection agencies.

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