(Janis Landis’ professional career was spent at the Internal Revenue Service. Upon retirement, she turned her attention to the only topic less popular than taxes: death. Janis served as President of Final Exit Network (FEN) from 2015 until June 2019 and continues to serve on the Board of Directors.)
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I’m not a lawyer. I don’t even play one on TV. But I do want to talk about a very underutilized resource: the Elder Law Attorney (ELA). An ELA is an attorney who has specialized in the issues facing senior citizens and stays current on relevant laws and regulations through continuing legal education requirements.
Most people are familiar with using a lawyer for wills, trusts and other estate matters. If your financial situation is fairly straightforward, any competent lawyer will probably be fine. Laws on inheritance are well established and the average person will probably never wind up in litigation over it.
Of course you may have special concerns: the need to establish a trust fund, provide for a disabled adult child, etc. An experienced ELA in these cases is essential .
But using an ELA for health issues is often overlooked. Planning for your end of life care is a very personal matter in which your preferences are unique to you. An elder law attorney can help you know what is legal and enforceable. They can help you in understanding the role of a Health Care Representative (HCR), ensuring that you select a capable individual, and provide advice to your HCR should that be needed.
More importantly they can step in to assist you or your HCR if your directives are not being honored. The law on patient rights is rapidly evolving. Wrongful prolongation of life lawsuits are a new and powerful legal tool when patients’ receive unwanted medical care. Equally important, an ELA can intervene if their client is not receiving adequate pain relief. And your ELA can intervene if your HCR is not successful in dealing with medical professionals.
An ELA is also helpful when considering a nursing facility or any senior residence facility that requires you to sign a contract. Most nursing homes are now run by for-profit companies. Sadly, instances of impermissible staffing cuts, over-medication, poor quality of care, etc. are on the increase.
Does the contract allow you to have access to your own doctors? What assurance do you have that promised amenities will be provided? What is the facility’s position on using Voluntary Stopping of Eating and Drinking (VSED) at the facility? If you enter a hospice, will they commit in advance to providing adequate pain relief? (Shockingly, this has become a very serious issue and several FEN members have contacted us about inadequate palliative care in hospice. FEN will be writing more on this topic in our magazine.) If you live in a state with medical aid in dying, will the facility cooperate if you choose this option?
As part of this for-profit mindset, some hospitals and nursing homes are illegally harassing relatives of a patient after the patient dies. They are demanding payments for debts for which the relatives are not legally responsible. An ELA can provide a welcome intermediary to take the burden of responding off your shoulders.
If you are interested in the services of an ELA, be sure the attorney is a member of the National Association of Elder Law Attorneys. You can find one in your area by checking this site.
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Final Exit Network (FEN) is a network of dedicated professionals and caring, trained volunteers who support mentally competent adults as they navigate their end-of-life journey. Established in 2004, FEN seeks to educate qualified individuals in practical, peaceful ways to end their lives, offer a compassionate bedside presence and defend a person’s right to choose. For more information, go to www.finalexitnetwork.org.
Payments and donations are tax deductible to the full extent allowed by law. Final Exit Network is a 501(c)3 nonprofit organization.
Like you, I would have thought an elder care attorney would be unnecessary. I am now involved in a situation in which someone I provide phone support to is in a nursing home that is making all types of medication errors. It is a complicated situation and fortunately this person can afford an attorney. Thank you for a well-written and timely article.
This is a marvelous addition to our blog history. I don’t believe we have covered many of these issues in previous blogs, and they come up all of the time with families who have loved ones in memory care, hospitals, skilled nursing, hospice and palliative care. Despite what is written on the paper, often these wishes are not followed, not out of any ill will or neglect, although these unfortunate things can occur, but because there is a breakdown in communication among staff and/or lack of accountability. I am so grateful to Janis Landis for her recommendations. An elder law attorney is more likely to get a problem addressed quickly than a weary and stressed family member. Having such a person as part of a family team can make an enormous difference.
In case of potential disregard of a dementia patient’s end-of-life choice , Final Exit Network offers legal support via https://finalexitnetwork.org/advance-directives-for-dementia/