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6 Ways Older Clients Benefit By Having Their Medical Professionals & Elder Law Attorney Work Together

May is National Elder Law Month and to highlight one important issue facing older adults and their families, this article discusses the importance of ensuring that your elder law attorney collaborates with your medical providers.

Older adults often need the services of both an attorney and medical professionals. However, many times, older adults could greatly benefit by ensuring that their attorney and their medical professionals are working together.

A 2016 article in Bifocal, a publication of the American Bar Association, highlighted six ways that such a collaboration is beneficial to the older patient-client’s well-being, as well as beneficial to the professionals in providing the best possible services to the client: 

1.     Decisional Capacity Issues

2.     Elder Mistreatment

3.     Self-Neglect

4.     Medical Payment Issues

5.     Family Issues

6.     Confidentiality

This article will addresses each of these areas in more detail below.

1. Decisional Capacity Issues

Many older individuals retain sufficient cognitive and emotional ability to make autonomous, valid decisions about important aspects of their own lives. Sometimes, however, an older person’s capacity to make and express valid choices about personal (including medical or residential) or financial matters is questionable and/or questioned by others.

Working Together

The elder law attorney needs involvement from medical professionals to help recognize when the older person’s decisional capacity may be compromised. The medical professional can help to quantify the existence, degree and reversibility or alterability (for example, through medication management) of the older person’s decisional impairment. Conversely, the physician could benefit by working with an elder law attorney who can identify and accurately describe the potential legal implications the may result from the physician’s diagnosis. The attorney can then evaluate possible legal solutions for the older client to help him or her manage decision-making, such as guardianship, supported decision-making arrangements, or reliance on previously created advance directives or other instructions.

 

2. Elder Mistreatment

Many older individuals, especially those with cognitive decline, are at risk of physical, psychological and financial mistreatment by family members and others. In addition to abuse and exploitation, elder mistreatment may occur in the form of neglect, often occurring in the older person’s home or that of a relative with whom the older victim resides.

The reluctance of many older persons to cooperate in reporting and investigating their own mistreatment compounds the problem. They may fear that if they report physical or emotional abuse, financial exploitation, or neglect of basic needs (such as hygiene or medications) that the report might result in them being removed from the home and placed in a nursing home.

Working Together

Medical professionals are generally the first to recognize, evaluate and medically treat signs and symptoms of elder neglect, exploitation or abuse. Their input is essential in considering and effecting legally permissible options or required actions. Health care professionals often have a responsibility to monitor the quality and safety of home care provided by family caregivers or others, and a duty to report instances of suspected abuse to authorities. Just as a physician may have initial contact with a person who has been abused, an elder law attorney may also gain information from a client (or her friend or family member), that the older person is being mistreated or abused. The attorney can help the client in working with the medical professional to explain what information is known and can help educate the medical professionals, as well as the client (and her family or friend) on what legal steps could be taken to help protect the older person.

 

3. Self-Neglect

Older adults who live alone may be more likely to neglect their own health care, hygiene, nutrition and other self-care needs. In fact, a majority of cases reported to Adult Protective Services (APS) by health and social service professionals and family members are suspected to be a result of the older adult’s own self-neglect.

Working Together

In these situations, a medical professional’s role is vital in determining the extent of harm that the older person’s self-neglect may have caused and identifying viable treatment strategies. Decisional capacity issues (addressed above) almost always arise in these cases. An attorney can advise the older person or her family about legal options that may be available to better protect the person from self-generated harm, while striving for a solution that best respects the older person’s dignity and autonomy.

 

4. Medical Payment Issues

It is imperative to make sure that payment for vital services for older persons will be available. For most people age 65 and over, this means working with not only Medicare, but potentially with state-specific Medicaid programs and/or private insurance companies.

One common problem arises when older patients enter hospitals through emergency departments and are held for observation there in the ER, instead of being admitted as in-patients, prior to being transferred to nursing facilities. This practice, as well as hospital discharge and readmission practices, may jeopardize the older person’s coverage for subsequent rehabilitation services.

Working Together

The elder law attorney trying to assist an older client with payment for the older patient’s medical care or rehabilitative care may need assistance from the patient’s medical professionals in order to document, clarify and argue questions about the older person’s medical conditions, needs and prognosis. Conversely, the medical professional may need assistance from an elder law attorney to assert and advocate for the rights of the older person.

 

5. Family Issues

Families often act as caregivers for older relatives who are not fully independent. Family members may also be acting as surrogate decision makers for those with reduced decisional capacity, making choices on behalf of the older person, or as helpers to a person who is capable of making decisions with support. Family difficulties arise when an older loved refuses to acknowledge his or her mental decline and/or physical limitations, and refuses offers of help. Unfortunately, sometimes family members have interests that conflict with the older person’s and they may seek to put their own interests first, to the detriment of the vulnerable older person. 

Working Together

Medical professionals are important in recognizing when the caregiver’s burden is at risk of endangering both the caregiver and the older person. An elder law attorney can inform all parties about public or private sources of financial and other support for family caregivers, including benefits under the federal Family and Medical Leave Act and state counterparts.

For medical decision making, whether for surrogate decision makers when the person has reduced decisional capacity or for those who help the older person make decisions, medical professionals provide information, recommendations and support in the process. An elder law attorney may work with individuals who are currently capable of decision-making and their families in the advance health care planning process. The attorney may also clarify for medical professionals the legal authority of surrogate decision makers. The attorney and medical professionals may also work together to present cases to an ethics committee or consultant when there are serious disagreements among family members, or to act as a mediator and/or patient advocate when there are disagreements about the patient’s best interests.

In cases of self-neglect, the attorney and medical professionals working together can often recommend options that will benefit both the family and the loved one.

In situations in which a family member is pursuing its own interests to the detriment of the older person, a medical professional will usually be the one to notify the individual’s attorney of the conflict. The attorney may initiate or threaten legal action to protect the rights and welfare of the older person in a way that also protects the ethical and legal interests of the medical professional.

 

6. Confidentiality

Medical professionals and attorneys have concerns about the permissible handling of personal information they learn about a particular older patient/client solely as a result of the formal relationship between professional and patient/client. For example, a medical professional may wonder about the confidentiality ramifications of his/her suspicions that an older patient is being neglected, exploited or abused.

Working Together

A medical professional can educate the attorney about the health care information collected on an individual patient, how and where the information is documented and stored, how to interpret it, clinical uses to which it is applied, and who has access to the information. The attorney can help her client understand who can access this information, what confidentiality means, and how the medical information can be used (or restricted from being used) in helping the client or the client’s family member. This type of collaboration, between medical professionals and attorneys can help the attorney protect the client’s privacy and autonomy.

Conclusion

There are, of course, other situations when it is advisable and beneficial for medical professionals and elder law attorneys to work together for the safety and well-being of their older patients/clients. For example, the input of both professionals might be necessary to manage a situation involving unsafe driving by an older person who is resistant to having his or her driving privileges restricted.

Generally speaking, elder law attorneys and the medical professionals who care for older patients/clients often have a genuine calling to work with the elderly. And when the professionals work together to serve their older patients/clients, everyone benefits. If you know of someone who could benefit from the advice of an elder law attorney, please contact us. We at Freitag & Martoglio, LLC are ready to help.

To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer's particular circumstances.