Getting the Hang of this Newsletter Thing

           T here’s an art to writing a newsletter, and I am just getting the hang of it. There was a long gap between #3 and #4 because I was trying to finish my article on why I have stopped practicing medicine. When it took way longer than I expected, I should have thrown in something else – not that it doesn’t meet my usual high standards, but, you know, something I could get done – and return to the medical decision topic for no. 5. Well, I finally figured that out, and so sent you the “Scam or Rip-off” item while I thought more about medical decisions.

           I hope you think it was worth the wait. Not that you sat around your e-mail in-box just waiting, like Charlie Brown waiting at his mailbox for a valentine from the little red haired girl. But maybe you did.

Announcement: I Have Stopped Practicing Medicine

           I have been increasingly uncomfortable advising clients about completing living wills and advance medical directives over the years and have finally figured out why: it is not the practice of law. I have no education or training in making medical decisions, and my own personal experience with the death of someone close to me almost twenty-five years ago (January 1, 1983, a gray, overcast, mid-winter day, around 5:18 in the afternoon, but who keeps track of a thing like that) itself hardly qualifies me to advise others about their own decisions, at least not professionally.

           The other cause of my discomfort lies in the fact that advance directives do not appear to be doing what was intended – enabling people to get the care they said, in advance, that they did – or did not – want when they were in extremis. There are many reasons for this, most inherent in the document, that is, in the attempt to use a document to address a future decision of inestimable complexity.

           Who is who and what is what. First, let’s clarify what is what. Terms about health care decision documents are used loosely; here are the more or less widely accepted meanings:

           Living will – a document developed about three decades ago in response to the over-treatment of patients, most typically the imposition of burdensome and unpromising cancer treatments at late-stages. It recited that “death was a part of life” and directed the termination or non-provision of “heroic measures” when the individual was in a “terminal condition.”

           Health care declaration – an improved living will, addressing coma, “persistent vegetative state,” as well as terminal condition and possibly even “end-stage condition,” and addressing life-sustaining treatments, specifically including tube-provided nutrition and hydration.

           Health care (or medical) power of attorney – a document by which a competent person (the principal) authorizes another (the agent or proxy) to make health or medical care decisions for the principal.

           Proxy – or health care proxy, the same as a health care power of attorney. The term sometimes refers to the agent authorized to act under the document. May also refer to the person who is authorized to make medical decisions for another under a statute, typically with priority in this order: spouse, adult child, parent, or sibling. D.C. follows that with the nearest living relative. Maryland follows with “[a] friend or other relative who ... [can show that he or she] has maintained regular contact with the patient sufficient to be familiar with the patient’s activities, health, and personal beliefs.” (For those of you who are interested, see Maryland Health-General Code § 5-605(a)(2) and (3).)

           Guardian – sometimes guardian of person, to distinguish him or her from guardian of property; the person appointed by a court to make medical decisions for a person found not to be able to make decisions for him or herself.

           What is “the practice of law” in this area? To understand what I do not do – and what I think no elder law or estate planning attorney should do – it is useful to see what it is we do properly do in this area.

           Elder law attorneys get medical questions presented most commonly in one of two ways. A parent or spouse has already lost the ability to make medical decisions and the question is how the client, the child or spouse, can get authority to make decisions for him or her. Or, the client him or herself wants to do what they can now to be assured of getting the care they do, or do not, want in the future.

           When the question is authority for someone else, the first task is to sort out whether there is a problem, and if so what exactly that problem is. If the person is getting appropriate care and there are no disputes, present or anticipated, no action may be the best course.

           If there is a conflict or one is expected, is the patient still able to make or direct decision-making? If yes, then it is their choice; if my client the spouse or adult child cannot persuade them to act as my client wishes, there is nothing I can do. At best, I might suggest they send the patient to a lawyer familiar with the issues, especially if the only problem is unwillingness to name an agent, perhaps the result of failing to appreciate the consequences.

           If the patient is not competent, what is the source of the problem? The patient him or herself? Another relative or even an agent? A nursing home or other care provider? Each leads to different solutions.

           If the problem is the patient, the only recourse, if any, is a guardianship or civil commitment. The former is appropriate if the patient cannot make or communicate appropriate medical decisions; the latter if the patient is a threat to him or herself or others. Only guardianship as a practical matter takes away the person’s ability to make decisions for him or herself. If they can express themselves and sound appropriate, or if they have the strength and mental focus to resist unwanted treatment, then none of the other means are effective to relief third parties of liability for doing what the client (not the patient) wants.

           If the problem is other relatives, an agent, or the facility, then the question becomes who has authority to make decisions absent a guardianship – as noted above (you have to read the definitions – they count) it is the spouse, adult children, parent or siblings, in that order. If the client has priority, it may be possible to sort that out without a legal proceeding. If the client does not have priority, but the person with it is not acting, or is acting inappropriately, then a guardianship may be required.

           You might note that most of what I discussed was legal priority and competence and authority to make decisions. Where the medical decision was involved, it was because a client said so. Maybe they were right, maybe wrong, and while I do have to confirm that they are in the medical and ethical ballpark, my job ends there.

           Its not different when a client comes to me to execute medical care decision documents. My job is to tell him or her how to get what he or she wants, as a matter of legal authority and legal planning, not what he or she should want. Not my job. And a good thing, too.

           The essence of medical decision documents is this: Who (or what) do you want to speak for you, when it comes to medical care, when you cannot speak for yourself? (I credit this useful formulation to Howard Sollins, a nursing home lawyer in Baltimore, Maryland, in a bar magazine article he wrote twenty or twenty-five years ago, more or less.) Your choices:

                    The person you choose (your agent under a medical power of attorney or proxy)

                    The person given priority by the state (spouse, etc.) – which may of course be different when the time comes.

                    The person chosen by a local judge of whatever state you are in when the decision has to be made (which might not be Maryland or D.C.)

                    The judge – or the court of appeals – if your case is contested and interesting.

                    A piece of paper – whatever you have written in a living will or health care advance directive 

           Again, to the extent the issue is what authority the law gives to people to make decisions for another, and how to change that priority, I am in my bailiwick, my comfort zone (not to say The Zone, but still ...), I’ve got home field advantage, and I know what I am doing. To be sure, this goes somewhat beyond bare legal authority questions. I do me and my colleagues a disservice if I do not note that we should and do go further and talk about the factors the agent should consider, and how to come to the “right” decision. That includes making sure the right people have copies of these documents, and also that the agent takes step to know what the patient wants, as best as he or she can express it.

           But when the question becomes what decision to make, alarm bells go off.

           How did we get into the business in the first place? I am so glad you asked that question because it was the very thing I wanted to discuss. What follows is my unresearched recollection of the law was like when I first started practicing in this area (the first Reagan Administration, before the Iran-Contra affair) and how it has changed since then.

           Lawyers got into the business of giving advice on medical decision-making because doctors wouldn’t. They didn’t have to – in the really old days, like the 1950s and 1960s-- doctors just decided. You might not follow all of your doctor’s instructions, but when a doctor said you needed surgery, or some other treatment, not complying was to a greater or lesser extent just not done. This is an overstatement, but plainly the approach and the attitude were fundamentally different from now. The crisis developed mostly in the area of cancer care, and to a lesser extent where advanced medical treatments were utilized in situations other than those intended, with unintended results.

           Those disputes led to development in the law of medical decision, the general trend being that the patient, and the patient alone, had the right to decide what treatment if any to consent to, after being given a reasonably accurate and clear explanation of the options – the doctrine of informed consent. Given our fundamentally individualistic legal and social value system, it did not take long to get to that issue resolved and then get onto the next problem – decision-making for those lacking competence, whether by age, illness or accident. Those who were never competent, because still young or rendered incompetent by childhood-onset or illness or condition, were different from those who lost their competence by disease or injury as adults.

           One solution was for people to make their wishes known, and thus was born the “living will,” a terribly inapt and confusing name. They were popularized, legislatures adopted them,

and being in law books, lawyers took to advising clients about them. When doctors were not doing that, or not doing it enough, that made sense.

           But now doctors are advising their patients about living wills. Indeed, it was a physician’s article about how to present these questions to an elderly patient and his family that got me thinking about all of this. And it reminds me of a sign in the pizza dive around the corner from The Michigan Daily building in Ann Arbor, where worked in lieu of getting a college education lo these many years ago:

We have an agreement with Ann Arbor Bank:

They don’t sell pizza and we don’t give credit.

It is ungrammatical (the second time I looked at this, it took me about a day to figure out why, so I’ll give you a hint – agreement between pronoun and antecedent) and maybe even illegal (28 U.S.C. § 1, Sherman Act, Section 1, Agreements in restraint of trade – I’ll spare you the wonkish details from my prior life as an antitrust lawyer), but to the point. Doctors do well avoiding the practice of law and lawyers do well suing doctors. Ooops, wrong conclusion. Lawyers do well not attempting to practice medicine.

           Finally, without reviewing the literature closely (newsletter speak: I read about this about a year ago and it sort of sticks in my mind), my general impression is that “living wills” (using the term more broadly) are of little use. They either do not address the medical problem to be decided, are either too specific or too general in the directions they give, aren’t at hand when needed, are not widely used despite great effort including having legally mandated advice from hospitals and nursing homes to all admittees, and are not well understood. And that’s on their good days. There is a very useful discussion in the Hastings Center Journal of a few years ago that covers the ground pretty well. You can find it by putting this in your web browser address line: www.thehastingscenter.org/pdf/publications/hcr_mar_apr_2004_enough.pdf. Credit to the Washington Post Outlook Section last Sunday, which had an article on living wills that referenced the Hastings Center. I did a Google search for “Hastings Center living will” and the first item was indeed this article. .

           The bottom line. Most elder law lawyers know that physicians know bupkis about the legal implications of incapacity (raise your hand if you’ve gotten a physician letter saying, in essence, the patient has lost capacity so he should execute a power of attorney). Even if doctors are not, we lawyers should be modest about what we know about what they do.

                                      Breakfast with a Barrister? Join me ...

... if I can figure out what day of the month is the second Wednesday of November. My sharp-eyed and quick-witted down-the-hall building mate, Julianne Chappell, promptly noted that the announcement in #4 about these breakfasts incorrectly identified that day as the 12^th, but it is actually the 14^th. Calenderically challenged?

           For those of you who missed that announcement, it is this. I would be pleased to have breakfast with Lagniappians and their friends and relatives on the second Wednesday of every month at La Madeleine in Rockville. You have to pay for your own meal, but at least you don’t have to pay for mine (or, better still, my time). I’ll answer questions about Medicaid, Lincoln, and the like, and would appreciate whatever help anyone can give me with that day’s New York Times crossword puzzle. My answers are, of course, not legal advice, and I don’t expect all of your crossword answers to be all that good either. I will be easy to spot – remember the 5 Bs (maybe 6, depending on how you count) – bald, bearded, bespectacled, obese, and behatted with brown fedora. I also love Beethoven, am thrilled by Brahms and adore Bach. And sometimes I feel bewitched, bothered and bewildered.

            This La Madeleine (not the one in Bethesda) is at11858 Rockville Pike, in the shopping center between Georgetown Pike and Montrose Road (Mid-Pike Plaza, maybe), across the parking lot from the Silver Diner. I will be in a small separate room, the Garden Room, if it is available, otherwise nearby. We’ll start at 7 a.m. and I will leave at about 8:30 a.m.

In the Coming Issue:

The Car Guides (say it fast and slur; it sounds like “the Car Guys”)

           Elderly woman to her equally elderly husband, via cell phone: Dear, be careful, I heard on the radio that a crazy person is driving the wrong way on the freeway.

           Elderly husband: One?!?!? There’s hundreds of ‘em!!!

This joke turns on a mean, ageist stereotype which, like most stereotypes, has some truth in it. If it captures your experience (as it does mine, in the person of my step-father, tho’ not on a freeway and not for too long), or if you are concerned it might, see the next Lagniappe

                                          What is Ron M. Landsman, P.A.?

           Elder and disability law firm – Ron M. Landsman, P.A., is an elder and disability law firm headed by Ron M. Landsman, who has worked in this area of the law since 1983. We represent older and disabled people, their families and advocates. The work we do includes estate, disability and retirement planning, probate, estate and trust administration, wills, trusts and powers of attorney, titling of assets and designation of beneficiaries, protective proceedings (guardianship and conservatorship), special needs trusts and public benefits – Medicaid, Medicare, Social Security, and SSI.

           Special Needs Alliance – Ron M. Landsman is a Maryland-D.C. member of the Special Needs Alliance, Inc., a nationwide network of attorneys especially knowledgeable about coordinating public benefits and private resources through different kinds of special or supplemental needs trusts. We and our colleagues assist disabled people, their families, estate attorneys and personal injury attorneys in enhancing the resources of disabled individuals – savings and investments, inheritances, settlements or judgments – by coordinating them with public benefits like SSI and Medicaid. We also manage such trusts or advise family members or bank trustees who manage them. For more information on the Special Needs Alliance, visit its website at www.specialneedsalliance.com.

           SR Alliance – Ron M. Landsman is a member of the SR Alliance of Montgomery County, Maryland, a network of professionals working with the elderly and their families. They bring their different expertise – financial planning, accounting, home renovation, real estate, long term care insurance, personal organizing, mortgages, and geriatric care – to bear as required or requested for a client. What they have in common is a particular sensitivity to the fact of being elderly, respect for their clients, and a willingness to go the extra mile to see that work is done and done well. For more information on the SR Alliance, visit its website at www.srasubmd.com.

Sharing and Use of this Free Newsletter

          P lease share Landsman’s Lagniappe with anyone interested in the elderly and disabled and their advocates. (That’s the whole point.) You may copy and use anything in this newsletter, but if you don’t credit us at the outset, no fair blaming us later.

           If you would like to get Landsman’s Lagniappe or you would like to change the form in which you receive it or want to be removed from our mailing list, please email us at newsletter@ronmlandsman.com, or call Sanja Pirsl at 240-403-4300, ext. 106, or fax her at 240-403-4301. No charge.

The New Announcement: Speaker Available

          I f you are having trouble sleeping and looking for something really soporific, Ron Landsman is available to talk on any number of topics, including some that he knows about – Medicaid, Lincoln, planning for disability, Medicaid, planning for the disabled child, Medicaid, and that always lively topic, probate in Maryland and D.C., as well as Medicaid. If you are interested, call Sanja Pirsl at 240-403-4300, ext. 106.

The Readers Do Write, Sometimes

           Actually, the problem is that my assistant, Sanja (pronounced San-ya, she’s Croatian), never tells me nuttin’. Turns out I got some more fan mail after #3, but it didn’t turn up in my mail slot until after she sent out #4. She went to the email address to send out the newsletter and – whoa! – people had actually written back. I bet she was surprised.

           Anyway, besides the usual fawning fan mail (“a particular joy ... brilliant insight,” said Scott S. of Indianapolis, one – and you can quote me on this – of the truly great leaders of elder law)(for real) and desperate requests to be added to the list, a client wrote to say that he thought the discussion of preventing identity theft was “unusually complete,” and then to undercut the compliment, he had a useful additional suggestion. His bank - USAA Savings Bank - will embed a picture of the cardholder on the card itself at no cost. “People do look up at me to compare me with my picture.”

Same old Disclaimer: This is not legal advice

           W e hope you find this to be a good newsletter, but it is not the same as legal counsel. A free newsletter is ultimately worth everything it costs you; you rely on it at your own risk. Good legal advice includes a review of all of the facts of your situation, including many that may at first blush seem to you not to matter. The plan it generates is sensitive to your goals and wishes while taking into account a whole panoply of laws, rules and practices, many not published. Whether it’s worth the cost is for you to decide.

Copyright © 2007 Ron M. Landsman, P.A.

Ron M. Landsman is a Founding Member (1987) of the National Academy of Elder Law Attorneys, and is a Fellow of that organization since 1990.

Ron M. Landsman has been a member of the Special Needs Alliance since its founding in 2002.