The process of aging and being aged pose challenges for all persons in both their personal and professional lives. While this part of the human experience is as old as humanity, we are to some extent in unfamiliar territory because of rapid changes in demography, family relations, and public policy based on an explosion of knowledge and technology and their application to the human condition. Social structures are having difficulty keeping pace with these rapid changes, particularly as they affect the process of aging. As individuals and practitioners, personally and professionally, lawyers are deeply enmeshed in the experience.
Essentially, law involves interactions and exchanges among individuals and groups. As one advances in age, relationships continue to be vital though the capacity of some elders may be compromised, thus requiring the assistance of advocates—whether informal or formal. Lawyers may need to be more conscious of relationships in the aging process, not only for clients, but for loved ones and even for themselves.
The Stages of Aging
A brief overview of the aging process might help clarify the challenge facing individuals and society, the legal profession, and its practitioners.
The underpinning of the human journey is biology—we grow from cells and molecules into the fully functioning organism we characterize as a human being. From the first moment of conception until death, human beings age.
In the first age, our biological makeup matures over time until physical maturity. The capacity to participate in reproduction, and the ability to satisfy basic urges for physical, emotional, and even spiritual intimacy usher in the second age. Historically, this was the period of maximum physical capacity to perform the basic tasks necessary for personal and species survival; only in the last 100 years has a third age become "normal." Heretofore, relatively few people survived past the second age. However, as a result of our growth in knowledge and its application to the human condition we have, to a large degree, eliminated many causes of premature death—primarily through immunizations and various medical interventions.
As we have dramatically increased life expectancy, we have the challenge of "managing our miracles" both as individuals and as a society.
The Third Age
During this relatively new third age, a period necessary neither for reproduction nor for persons with physical strength, we experience changes in the power structures of and our needs in both personal and societal relationships. Basic biological realities come into play. In the first two ages there are consistent, orderly, balanced degradation and repair functions occurring at the cellular level. "It is the cornerstone of modern biology that a purposeful genetic program drives all biological processes that occur from conception to reproductive maturation."). In the third age, the balance is disrupted; the repair function cannot keep pace with cellular failure, resulting in progressive intermittent frailty (often referred to as PIF).
There is a third age phenotype, evident across the entire older population, with changes in hair, hearing, teeth, skin, eyes, organ reserve, and energy. For women, menopause is particularly dramatic marker.
In medicine there is a growing recognition of physical frailty as a syndrome, a collection of symptoms or markers primarily due to the aging-related loss and dysfunction of skeletal muscle and bone that place (mostly) older adults at increased risk of adverse events such as death, disability, and institutionalization.
Frailty as used here, however, has a broader meaning. Frailty is both physical and social in its etiology. It tends to be progressive, ultimately ending in death, but manifests itself both differently from individual to individual and expresses itself in an uneven course with each person with periods of relative exacerbation and remission. It encompasses the disequilibrium between an individual’s personal capacity and external demands. Any number of relational factors, including physical and social environmental factors, will intensify or remediate this disequilibrium.
The presence of willing supportive others, ideally with instrumental, emotional, and even financial help (in-kind, too), is critical at all stages of frailty, especially the most acute. Its absence makes it ever-more difficult to deal with frailty. Unfortunately the loss of dear ones is difficult, if not devastating, to older persons.
Resources and the Third Age
The third age is a period of consumption of economic resources, rather than their production and accumulation. A fortunate few have been able to accumulate assets they can rely on to help moderate their frailty by securing various aids—both human and mechanical/ technological. As income and assets are becoming ever more bifurcated in the United States, the financial viability of many in the third age and the Baby Boomers entering this period is becoming more problematic. Potential modifications of Social Security, Medicare, and Medicaid may exacerbate the problems for many. For half of persons in the third age, Social Security is their primary source of income.
Health expenditures are problematic in the private and public sectors for individuals, businesses, and governments at every level. Despite our huge investments in health services, our outcomes, as compared to those of other countries, indicate that our efforts, while costly, are not very efficient.
In addition to lowering premature death throughout the life span and thus increasing life expectancy, medical interventions, rehabilitation activities, management of chronic illnesses, pharmacological agents, and prosthetic devices all lessen frailty but have personal and societal costs.
Healthcare Decision Making
Healthcare decision making has for some time been front and center in the public agenda. There are many questions that will not go away: Who should make decisions and on what basis? Will decisions be "evidenced based" and include quality of life considerations? Should ability to pay be the rationing tool? Both private and public sectors effectively "ration" by what they will reimburse. Should government instrumentalities be the determiners? Can and should the matter be left to individuals and their physicians or other health care providers?
Whatever direction public policy takes, all individuals will need and want health services. They will require trusted advisers to help them understand what is possible and to advocate for what is their due. And lawyers have an increasingly important role to play. Advance directives are a first step. They can be utilized in the event a person does not have the capacity at a given moment or over time to make important healthcare decisions. Virtually all states have developed statutes in this regard.
In general, an advance directive is one of two general types: either the person enumerates explicitly and in detail what he or she wishes or does not wish to be done in particular circumstances, or the person appoints a healthcare proxy (essentially a durable power of attorney approach), where a person is delegated to be the decision maker. Often the state statutes cover elements of both types. In most jurisdictions attorneys need not be involved, but often they are.
From my perspective, the healthcare proxy approach is preferable as long as it is drawn and executed appropriately. The proxy should be agreeable to assuming the responsibility and have a thorough understanding of what it entails. The proxy should understand the person’s wishes and have the ability to negotiate with health professionals in what may be difficult circumstances and be ready to be supportive to all involved.
A brief vignette may be helpful. My healthcare proxy is my niece Sharon, an attorney who is a board member of a hospital and the former chair of a long term care system. I said to her, "Sharon you know this is like an engagement, an indication of our love and respect for one another. We have known one another since you were a little girl. I want you there not only if I am incapable of making a decision but whenever I might be in trouble. Even while technically capable I may have diminished decisional acuity and would need your intellectual, moral, and emotional support. Oh yes, in the event I am in extremis, I will not burden you with what you should be doing with regard to technical interventions, but I will ask you to honor these three simple requests: Can I say another prayer? Can I give or get another hug? Can I enjoy another martini?" ■