Volume 19, Number 5
July/August 2002

Advance Directives:
Ten Topics to Discuss with Clients

By Robert Fleming and Rebecca C. Morgan

Regardless of the type of practice, any lawyer who has long-term clients, or elderly relatives for that matter, should know something about advance directives, guardianships, and nursing homes. Here are answers to ten questions elder law attorneys frequently hear from their clients and families.

  1. An advance directive is only as good as the family's willingness to honor it. There is no guarantee that a client's advance directive will be honored. In addition to the careful work of the lawyer in drafting the documents, the client must take steps to improve the chances that the family and health care providers will honor the directive. Most state statutes do not have provisions for civil actions to enforce directives, and many are not honored, for a variety of reasons.
  2. Having a conversation with family about end-of-life wishes and reasons for them gives the client the best chance of getting a directive honored. The best thing the client can do to increase the likelihood her wishes will be honored and her directive followed is to have conversations with those who will be involved in her end-of-life care-her family, health care provider, and spiritual advisor. An explanation why she chose a particular course of action will help the family understand her motivation and increase the likelihood that her family will honor it. To help the client outline such a conversation, the ABA Commission on Legal Problems of the Elderly offers lawyers a Tool Kit, available at www.abanet.org/elderly/orderingpage.html#toolkit.
  3. The client and the surrogate decision maker must discuss the client's wishes. The advance directive directs the surrogate to make the decision as the client would have made it. If, however, the surrogate is not clear about the client's wishes, the surrogate ends up making a decision about what is in the client's best interest instead of what the client would want.
  4. If the client lives in more than one state, it may be advisable to have a directive from each state. Enforceability of a directive from one state to another remains problematic. Although all 50 states and the District of Columbia have statutes creating written directives, these vary. Generally, a directive valid in the state in which it is made should be honored in another state. If the client lives in more than one state, the easiest solution may be for the client to prepare a directive from each state.
  5. A client may need a pre-hospital "do not resuscitate" order separate from the client's advance directive. Many states provide, either by statute or administrative regulation, a separate document for a pre-hospital do-not-resuscitate order (DNRO), which often contains specific language or must be on a certain color of paper. If the pre-hospital DNRO does not meet the state's requirements, it will not be honored by emergency services personnel. States requiring a separate pre-hospital DNRO would not accept a general statement in the client's advance directive that she does not want to be resuscitated in the event of a medical emergency.
  6. Guardianship should be viewed as a last resort; good planning can eliminate its need in most cases. Elderly people value their personal independence, just like their younger counterparts. They are often afraid to ask for help or report being financially exploited for fear of engaging a system that could ultimately result in institutionalization and/or guardianship. Good estate planning in many cases can avoid guardianship. If the client has a trust in place, has delegated health care decision-making authority to another, and has appointed a trusted individual to serve as attorney in fact under a durable power of attorney for property management, the client might avoid being the subject of a guardianship proceeding.
  7. Old age alone is not a basis for declaring a person incapacitated-elderly people may make unwise decisions yet remain competent. Being old is not a sufficient ground for declaring a person incapacitated. Nor is it sufficient if an adult child disagrees with the elderly parent's lifestyle choices. Although grounds for an incapacity finding vary by state, they are usually summarized as an inability to manage one's property or care for oneself to the point that harm may occur.
  8. Guardianships are vehicles to help, not financially exploit, an individual. The fact that the client plans to leave her money to the child at her death does not give the child/guardian a license to spend it for the child's needs now (or to hoard it to protect the inheritance). Every guardian-including a child-has a fiduciary obligation to the ward and to the court. Plans to leave assets to a child do not give the child/guardian authority to use those assets for the child's personal needs. The money must be spent on the parent's care; if the funds are exhausted in the process, the child simply may not receive an inheritance.
  9. There are good nursing homes and bad nursing homes. Clients need to do their homework to figure out which facility will be best. Few people hope to end up in a nursing home, but it is a fact of life in American society that many elderly people will be institutionalized at some point. In fact, estimates are that about half of those 65 years old will spend at least some time in a nursing home. Choosing a nursing home can be a particularly emotional experience for all concerned. A lawyer can help by giving the client a frame of reference for selecting the home. Each facility is inspected annually by federal and state governments and the state's ombudsman program. The results of these inspections can be useful in determining which facility is best for the relative's needs. A conversation with the local ombudsman will give the client a good feel for a facility's reputation. Although the Medicare website has Nursing Home Compare, a searchable database of facilities, the database currently contains only information from annual inspections, not findings from complaint investigations. Caution clients against relying heavily on the information on Nursing Home Compare until this is corrected.
  10. Long-term nursing home care is very expensive. Despite what many people believe, most nursing home care is not covered by Medicare, which provides very limited short-term coverage for care in nursing homes only in certain situations. Personal coverage for long-term care is designed to cover options like nursing homes. A variety of policies are available, but many people continue to postpone signing up for such coverage. Although Medicaid does cover nursing home care, it has strict income and resource guidelines. Because it is difficult to qualify for long-term Medicaid coverage, it is important for clients to investigate the availability of insurance, decide whether they can pay for care without assistance, and/or consider the likelihood that they will need to apply for Medicaid in the foreseeable future.

Parents as Clients
End-of-life arrangements are difficult in any situation, but they become more difficult when the decision involves a member of your family or your own parent. Guardianship and nursing home issues usually occur in a crisis, compounding already difficult emotions. Family dynamics and prior promises make it difficult to implement responsible decisions. As life expectancies lengthen, every attorney will encounter these matters in practice or personal life. When it is personal, it sometimes is better to let another attorney handle the situation. Involving an attorney with experience in elder law issues not only improves the quality of legal advice, it also lets you be your parent's child.

Robert Fleming is an attorney in private practice in Tucson, Arizona, with the firm of Fleming & Curti, PLC. Rebecca C. Morgan is a distinguished professor of law at Stetson College of Law in St. Petersburg, Florida.

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