Archive for the ‘advance directives’ Category

Seniors & Mental Health: Is it Mental Illness or Aging?

Sunday, May 22nd, 2016

Seniors are more at risk for mental illness than the general population. According to the Centers for Disease Control and Prevention (CDC), about 20 percent of people age 55 and older experience some kind of mental health concern. Not only are more seniors affected by mental illness, nearly one in three affected older adults does not receive treatment. By learning more about this often-misunderstood problem and watching for warning signs, we may be able to help elders in need get treatment.

Littman Krooks Elder LawMost people are aware that seniors are more at risk for Alzheimer’s disease and other cognitive impairment. About 11 percent of seniors have Alzheimer’s disease, but it is crucial to understand that cognitive decline is not a normal part of aging. Therefore, changes such as increased forgetfulness, confusion or disorientation should be taken seriously. With a prompt diagnosis, seniors can benefit from treatment earlier, and any necessary changes to their living environment can be made in order to keep them safe.

Seniors are also at risk for depression and mood disorders. According to the CDC, in a 2006 survey, 10.5 percent of people age 65 and older said they had received a diagnosis of depression at some time in their lives, and 5 percent had current depression. Another 7.6 percent received a diagnosis of an anxiety disorder at some time in their lives. Anxiety disorders can include a variety of problems, such as phobias, post-traumatic stress disorder and obsessive-compulsive disorder, including hoarding syndrome. Many seniors fail to seek treatment, in part because some people mistakenly believe that depression is a condition natural to aging.

Mental health concerns can have consequences beyond the symptoms of the condition itself. Untreated mental illness can lead to social isolation, take away from seniors’ independence, and cause physical problems and additional medical concerns. That is why it is important for seniors to take preventive measures, and for their loved ones to be aware of warning signs.

Studies have shown that preventive measures can alleviate mental health problems. The risk of depression and anxiety can be lowered as a result of better physical health. Simple exercise three times a week can be even more effective than prescription medication. Research also indicates that keeping the mind active, through social activities, games and puzzles, and communication with friends and family, can decrease the risk of mental health disorders.

Loved ones and caregivers should watch for changes that may indicate mental health concerns for seniors.

Warning signs include:

  • social withdrawal,
  • a depressed mood that lasts longer than two weeks,
  • memory loss,
  • confusion,
  • feelings of worthlessness or guilt,
  • unexplained physical changes, such as in dress, weight or hygiene.

If any of these symptoms appear, discuss them with the family doctor. Treatment such as counseling or psychiatric care can help seniors get on the right track to healthy aging.

 

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The Dispute Over Robin Williams’ Estate

Wednesday, September 2nd, 2015

robin williamsOne year after the death of Robin Williams, a legal battle over his estate continues.

Despite the fact that Williams’ estate was planned with a certain degree of sophistication, several disputes have arisen between his widow and his three children from two previous marriages. Williams’ estate plan provides that his widow be able to live in their mansion in Tiburon, California, and retain most of its contents. However, Williams’ children claim that the home contains memorabilia items that are designated for them. Another area of dispute concerns a fund dedicated to expenses associated with the residence, which Williams’ widow claims is being restricted by his children.

Many wealthy people die having done inadequate estate planning, or none at all, which is almost certain to lead to legal disputes among heirs. In Williams’ case, the actor and comedian had done the right thing for the most part, creating a tax-efficient estate plan that included trusts to be managed by people in whom he had confidence. However, this did not prevent legal turmoil after his death.

Estate planning experts familiar with Williams’ estate say that a lesson that can be learned from this case is that specificity is essential to proper estate planning. Especially when personal items are to be left to different people, specifically naming individual items is much better than using general language to describe categories of possessions. Leaving things open to interpretation is one way that disputes can arise. Another factor that can help prevent disputes is to set expectations by letting loved ones know the general plan for the estate, so that they are not surprised by its provisions.

 

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Joni Mitchell and Conservatorship

Wednesday, August 5th, 2015

Beloved singer-songwriter Joni Mitchell was found unconscious in her Los Angeles home on March 31, having suffered a brain aneurysm. After Mitchell spent more than a month in the hospital, her longtime friend Leslie Morris was appointed her conservator to make medical decisions for her while she recovers. As fans wish Mitchell a full recovery, they may also be wondering, “What is a conservator?”

A conservator or adult guardian is appointed by the court to make certain decisions on behalf of an adult who has become unable to make such decisions on his or her own, due to a physical or mental condition, or advanced age. The court may place certain limits on the guardianship or conservatorship. For instance, the court in Los Angeles granted Morris control only over Mitchell’s medical care, in the absence of the 24-hour care she received in the hospital. A court may also grant a conservator or guardian control over a disabled person’s financial affairs or other aspects of his or her life, such as whether the person should reside at home or in a nursing facility.

A conservator or guardian can be essential in protecting the well-being of a person who has become unable to make his or her own decisions. A conservator or guardian can pay bills for the incapacitated person, prevent financial abuse, prevent self-neglect, and advocate for the person’s health.

The court may appoint a conservator or guardian in response to a petition submitted to the court. For example, in New York, a guardianship proceeding is brought under Article 81 of the Mental Hygiene Law. However, guardianship is considered a drastic remedy, and the court is required to consider less restrictive alternatives, such as home health aides, representative payees and other solutions that may meet the person’s needs without the appointment of a guardian.

In many cases, if a durable power of attorney or health care proxy has been appointed before the person becomes incapacitated, then guardianship proceedings are unlikely to be necessary. This is one reason why people planning their estate should give such appointments careful consideration.

 

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How to Make Health Care Decisions for Someone Else

Friday, January 23rd, 2015

By: Bernard A. Krooks, J.D., CPA, LLM (in taxation), CELA®, AEP® (Distinguished)

Maybe you’ve been named guardian (of the person) for a family member, colleague, or friend. Maybe you’ve been listed as an agent in a health proxy. Maybe you’re a family member with authority to make health care decisions (New York, like a number of other states, permits family members or others to make most health care decisions in at least some cases). How you got there is not the point, at least not for today. Today’s question: how do you go about making decisions for someone else when you have been given the power — and responsibility — to do so?

For centuries the American common law (and its English predecessor) focused on the “best interest” of someone who was no longer able to make their own decisions. It was not until relatively recently that the concept of “substituted judgment” began to seep into legal discussions. Today the latter notion drives health care decision-making in most cases.

But what does that mean? One early description suggested that a person making decisions for someone else should try “to reach the decision that the incapacitated person would make if he or she were able to choose.” That means that the decision-maker should try to substitute the patient’s decision for his or her own, not the other way around. In other words, the guardian/agent/surrogate should first try to figure out what the patient/principal would want in the circumstances.

Let’s simplify some of the language, just to keep things from bogging down in legalisms. Let’s use “principal” for the person signing a health care proxy, or subject to a guardianship, or (however they got there) presently incapable of making decisions. The person making the decision, signing the hospital’s forms, choosing a facility, or whatever — we’ll call him or her the “surrogate”.

So now you’re the surrogate, and you’re trying to figure out what you should consider when making your decisions. Here’s a list (probably not comprehensive) of things you might look to:

Did the principal sign any documents? A living will, for instance, might give some insight into the principal’s wishes. There are plenty of other documents that might be useful, though — from worksheets filled out at a seminar on advance directives to letters to family members to descriptions of other patient’s circumstances.

Did you have any conversations with your principal? Maybe you talked about other patients in the news, and how your principal felt about their stories. Be careful here — we remember one client who adamantly said she didn’t want to “go through what Terri Schiavo did.” It wasn’t until we followed up with the client that we figured out that she meant that she thought it was terrible that the legal system allowed Ms. Schiavo to die. We had assumed that she meant she wouldn’t have wanted to be kept alive, but that was the exact opposite of her meaning.

Did anyone else have conversations with your principal? Ask family, friends, co-workers and others who might have discussed health care issues with the principal while they were still capable of forming a decision.

Ask your principal. Is he or she able to talk at all? Then ask for direction. That doesn’t mean you have to follow whatever a now-demented patient says he or she wants — the principal might simply respond affirmatively to almost every question, making the answer depend on how you ask. But just because you’ve been given responsibility for the decision it does not follow that your principal’s opinion is no longer relevant.

Consider your principal’s life history. Was he or she particularly religious, or irreligious? Do you know what family members would prefer (and whether your principal would be more likely to agree with or oppose the family)? Did other family members or acquaintances go through similar circumstances, and is your principal’s response helpful to you while making this decision?

Talk to the medical team. What seems like a major decision might not seem so significant after you’ve discussed the risks and burdens associated with a given procedure (or decision to forego a procedure).

If you can’t figure out what your principal would want, then you move from applying “substituted judgment” principles to determining the “best interests” of your principal. But that doesn’t necessarily mean that you have to approve treatment.

Weigh the “burdens” of treatment against the benefits. Is a proposed operation painful, dangerous, or uncertain? Or might it alleviate pain, make your principal more comfortable, or increase the odds of recovery?

Strive for consensus. You are supposed to be figuring out what your principal would want, but the input of family, friends and the medical community is worth considering in an attempt to avoid infighting, undercutting and acrimony. Your principal’s care might not be best-served by having a difficult situation made more tense.

As a last resort, consider submitting difficult choices to the courts for resolution. That gives everyone a chance to air their positions in a formal setting, and focuses the questions on the principal’s wishes — and care. But it is time-consuming and expensive, and should not be invoked unless there is real difficulty in making the correct decision.

It is a challenge to make health care decisions for someone else. It is also a terrific gift to the principal to accept the responsibility and discharge it carefully and well. Another day we’ll write about how you can make that job easier when you’re the principal rather than the surrogate. In the meantime, take the surrogate’s job seriously, and do your best to substitute your principal’s decisions for those you might make for yourself.

 

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Advance Directives Need to Be Accessible

Tuesday, July 8th, 2014

When drafting advance directives, a common problem for many people is making these documents easily accessible for their loved ones.

What is an advance directive? A legal document in which a person specifies what arrangements should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. There are different ways of creating advance directives, including a living will, a durable power of attorney and also a health care proxy.

People may feel that their advance directive should be kept with their attorney or in a safe deposit box. However, decisions about medical treatment often need to be made quickly, so it is important that an advance directive be not only safe, but easy to get to.

If an individual’s advance directive appoints another person as health care proxy, then that person should have a copy of the document, or know where it is kept. If a patient is incapacitated, then it is important that the health care proxy be able to present the document to medical personnel.

It may also be wise to keep a copy of the document in electronic form, stored in such a way that it is accessible from a smartphone or other device. Such electronic copies have the same legal authority as the original paper document, and they can be accessed more easily. Ask your attorney what they recommend for digital or cloud storage for these documents to ensure the security of your private information. Learn more about our services within elder law and advance directives by clicking here.

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