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July 01, 2012

New ABA Policies on Aging Issues

On August 6, 2012, at the American Bar Association Annual Meeting, the following three resolutions proposed by the Commission on Law and Aging were adopted by the ABA House of Delegates. 

Resolution 106A: Advance Care Planning for Older Adults 

Resolution 106A addresses a serious need for stronger mechanisms and protocols to ensure that patients and their families, especially those who rely on Medicare and Medicaid, receive the counseling and assistance they need to plan adequately for medical decisions that will inevitably face them. Some seventy percent of the adult population does not have a formal advance directive, although many of these adults have expressed their wishes in a variety of other ways, either orally or in writing. Nonetheless, the federal government lacks sufficient systemic prompts and supports to make advance care planning a normal and expected part of health care for persons on Medicare and Medicaid. 

This resolution addresses the problem by calling on Congress to strengthen the only federal law that seeks to encourage the use and recognition of advance directives -- the Patient Self- Determination Act of 1990. The resolution also calls on the Department of Health and Human Services to require that voluntary advance care planning be included in the annual Medicare wellness exam. 

Resolution 106A has four elements. The first three points address Congress, urging it to amend the provisions  of the  Patient Self- Determination Act of 1990 to require: (1) That every patient or patient’s authorized representative be given an opportunity to discuss issues relating to advance care planning with an appropriately trained representative of the provider organization; (2) That Health  Insurance  Exchanges developed pursuant to the Patient Protection and Affordable Care Act of 2010 be required to provide advance care planning information and resource options for follow-up assistance; and (3) That in the absence of a validly executed state advance directive, any clear and undisputed expression of a person’s wishes with respect to health care should be honored by health care providers, as long as consistent with applicable law. 

Finally, Resolution 106A urges Congress and the Centers for Medicare and Medicaid Services (CMS) to require that the annual Medicare wellness examination, or other periodic doctor-patient interactions, include an opportunity to engage in advance care planning for health decisions and to have resources available relating to advance care planning. 

Resolution 106B: National Guardianship Summit Standards and Recommendations 

The need for guardianship of incapacitated adults will grow as the population ages and the number of individuals with dementia, intellectual disabilities, mental illness and brain injury increases. The last twenty-five years has seen significant guardianship reform focused on procedural protections, determination of capacity, limited orders and court monitoring, with less attention to the post-appointment performance of the guardian. When the court appoints a guardian for an adult, what is the expectation of how the guardian will fulfill this daunting and powerful role on behalf of vulnerable at-risk individuals? Despite some degree of guidance in state laws and court rules, as well as some existing standards, nowhere is there a universally recognized set of standards defining how a guardian should perform and make decisions. While research is scant, anecdotal evidence, governmental reports and press accounts indicate guardian practice is markedly uneven. 

Thus, the National Guardianship Network (comprised of ten national organizations working for effective adult guardianship law and practice) in 2011 convened a landmark Summit to examine what standards should guide guardians. The Summit focused on post-appointment performance across several key areas of guardianship practice. 

The Summit resulted in forty-three standards for guardians and twenty- one additional recommendations for action by legislatures, courts and others, providing a durable guide for guardians and a solid blueprint for continuing reform. The ABA Resolution endorses the Summit Standards and Recommendations, and urges courts and all levels of policy- making bodies to implement them, thus allowing for a strong ABA voice in the implementation. 

Resolution 106C: Court-focused Elder Abuse Initiatives 

The older adult population is growing and the incidence of elder abuse is rising. State legislative action and growing emphasis on legal remedies are expanding the number of elder abuse cases in the state courts. With funding from the U.S. Department of Justice through its National Institute of Justice, the Commission on Law and Aging recently studied what were then the only five court-focused elder abuse initiatives in the country and concluded that they are beneficial and should be replicated. 

The Commission coined the term “court-focused elder abuse initiatives” and defined it as initiatives that serve victims or potential victims of elder abuse through either a court or a court-based program, or a program conducted in partnership with a court. Resolution 106C supports the development of such initiatives to improve the justice system’s response to victims of elder abuse. This resolution urges state, territorial, tribal, and local courts and community organizations to collaborate in establishing court-focused elder abuse initiatives that, as appropriate for each initiative and each jurisdiction, implement seven principles that mirror the findings of the Commission’s study. The resolution also urges the courts and community organizations involved in these initiatives to develop comprehensive plans for collecting and analyzing data to demonstrate the initiatives’ impact and outcomes. 

You can read these and other ABA policies proposed by the Commission on the Commission’s Policy web page.