Elder Law Blog

Kathleen Audia is sixty three (63) years old this year. She has been hearing impaired since childhood, and lost total hearing when she was fifty-five (55). Her primary language is American Sign Language; she does not read lips well enough to understand more than a small portion of conversations.

In 2015, Kathleen fell. She had a deep cut to her head, called a laceration. Kathleen was admitted to a hospital and, after discharge (and after spending a few days at another facility), she became a resident at Briar Place Nursing and Rehabilitation (in Illinois). While at Briar Place, Kathleen was diagnosed with major depressive disorder, balance and gait issues, osteoarthritis, and low back pain.

On January 29, 2018, CNN reported that a British Court ruled in favor of doctors, and against parents, holding that doctors could withdraw life support for a severely disabled child. Baby Isaiah was born by emergency cesarean after his mother experienced a rupture in her uterus. At birth, he had no audible heartbeat or respiration, but was revived. Doctors argued it was not in Isaiah’s interest to prolong his life.

Euthanasia is the practice of intentionally ending life to releive pain and suffering. Technically, withdrawing life sustaining treatment is not considered euthanasia, but in most cases the withdrawal of treatment is at the patient’s request, not the government, not the medical community, and not insurers. The notion that a patient controls his or her own care, including the right to refuse treatment stems from Cruzan v. Director, Mo. Dep’t Health, 497 U.S. 261 (1990) and related cases.

On December 28, 2017, CNN reported the beating of an eighty-six year old man with dementia who was a resident in an assisted living facility. Apparently a younger resident accused the older gentleman of eating his cupcake. The younger resident then beat the older man more than 50 times during a two minute period. No staff were present at the time of the beating.The facility had been sanctioned for other incidents, with two administrators having been arrested on charges of neglect of the elderly.

It is critical that family members visitloved ones in a nursing home or assisted living facility. If you see irregularities, report them to the administrator. If the administrator does not correct the situation, report it to the local ombudsman. If that doesn't resolve the situation, speak with an attorney.

Lola Norton was a nursing home resident. After her death, her husband brought a wrongful death claim against PruittHealth - Taccoa. The alleged injuries are unimportant for purposes of this blog article.

The nursing home responded to the lawsuit by showing where Kim, Lola's daugher and agent under Lola's power of attorney, signed an arbitration agreement. Presumably it was part of the admissions package. In other words, the nursing home didn't want a jury deciding the case. 

A recent article in Health Affairs Blog explores the role of family caregivers in the long-term care setting. The following extract addresses some of the burdens of caregiving:

"However, family caregiving can take a large financial, emotional, and physical toll on the caregiver. According to the AARP, the value of informal caregiving provided to adults was approximately $470 billion in 2013. Additionally, close to one out of 10 Americans over the age of 40 are both providing LTSS assistance to a family member and supporting a child. The emotional, social, physical, and financial burden on this “sandwich generation,” is significant."

Caregivers of those with dementia know that decision-making is challenging. The following extract from an article addresses problems with communication.

"Finster has had dementia for 10 years. She has spent most of that time in facilities with increasing levels of care, moving from an independent living facility, to assisted living to memory care. Mantua has felt some of the frustration that caregivers of other patients with dementia have experienced. Three or four years ago, when Finster still  had a phone in her room, she sometimes called her son Les — Mantua’s older brother — 10 times to leave him the same message that people were coming into her room and stealing her food. She simply forgot that she had called before." (emphasis added)

On July 5, 2016, in Doctors Hospital of Augusta v. Alicea, 2016 Ga. LEXIS 448 (2016), the Georgia Supreme Court affirmed lower court decisions denying a motion for summary judgment. In doing so, the Court interpreted the Georgia Advanced Directive Act, O.C.G.A. § 31-32-1 et seq., holding that it is the will of the patient or her designated agent, and not the will of the health care provider, that controls health decisions.

On November 12, 2009, Bucilla Stephenson executed an advance directive naming Jacqueline Alicea, her granddaughter, as health agent. Stephenson was 89 years old at the time. The advance directive specified that Alicea was authorized to make health care decisions for Stephenson in accordance with what Alicea deteremined to be in Stephenson’s best interest. The advance directive also said: “My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.”

If you are searching for answers regarding health reform, otherwise known as Obamacare, one of the best places to look is on the Kaiser Family Foundation website. At their Frequently asked questions page (http://kff.org/health-reform/faq/health-reform-frequently-asked-questions/), KFF answers questions such as "Can I be charged more if I have a pre-existing condition?" (http://kff.org/health-reform/faq/health-reform-frequently-asked-questions/#question-can-i-be-charged-more-if-i-have-a-pre-existing-condition). Other more general information is available at http://kff.org/health-reform/.

The official government website tp find information regarding marketplace health plans is https://www.healthcare.gov/. A great place to start is the Quick Guide to the marketplace, at https://www.healthcare.gov/quick-guide/.

On October 16, 2015, USA Today reported (see link below) that nursing home care could run as high as $730,000. It told the story of Randy and Mary Kaump, who care for Randy's 97 year old monther, Janis. Janis has been a nursing home resident for four years, paying $13,000 per month. So far, she has depleted her savings, with Randy and Mary chipping in an additional $100,000 of their own money. In Georgia, the cost of care is hovering around $7,000 per month, so the bills are lower. Unfortunately, for most families $7,000 per month isn't nearly low enough.

Stories like this are all too common, but even more common is the story of a spouse depleting his or her savings to pay for a sick spouse's care. Although there is nothing wrong with paying for your own care, most people don't have that much to fall back on so paying for care could mean the healthy spouse has nothing to use for his or her own retirement needs. Would it make a difference if you knew there's help out there?