November 27, 2018 Book Synopsis

Book Synopsis: The Law of Later-Life Healthcare and Decision Making

Lawrence A. Frolik

Lawrence A. Frolik, Emeritus Professor at the University of Pittsburgh School of Law, has authored a second edition of “The Law of Later-Life Healthcare and Decision Making.”

The first edition promised the reader a book that would “provide a comprehensive description of the manner in which the law regulates and reacts to healthcare and personal decision-making for the elderly.” The updated and comprehensive second edition continues to fulfill that promise as well as provides its readers with “answers to their questions about healthcare decision-making.”

Readers with questions and concerns about healthcare in later life will find answers here. At a little over 300 pages, the book reviews topics including Paying for Healthcare, Paying for Long-Term Care, and End-of-Life Decision-making. The book also covers where long-term care is provided, including a discussion of supportive housing and nursing homes.

In short, it is a one-volume book for lawyers who need answers to the common questions about healthcare that are put to them by their older clients.

After age 65, clients are increasingly concerned about their healthcare, particularly what happens to them if they need long-term care. They are confused and worried about their end-of-life rights and about who will decide their healthcare if they should lose mental capacity. This book provides the lawyer answers to those questions as well as provides the lawyer with a framework to understand the law and its implications for their clients.

The book begins with an overview of how older clients pay for healthcare, by enrolling in Medicare. Almost all Americans are eligible for Medicare at age 65, a year earlier than the age 66 regular eligibility age for Social Security. Anyone age 65 or older or any lawyer who regularly advises clients age 65 or older should have a basic understanding of Medicare and the four Medicare Parts, A, B, Medicare Advantage, and Part D. It can seem overwhelming, but Frolik guides the reader through the statutory maze and practical implications.

Next, the book reviews long-term care housing options that run from aging in place to retirement housing, and finally (both in the book and in life) to nursing homes. Most lawyers know that advising a client about housing options is usually not billable. But estate planners, elder law attorneys, and general practitioners should be aware that if they can intelligently talk to a client who is considering moving into an age-restricted community or who must move a parent into a nursing home, the client will be grateful and respect the lawyer’s acumen. Just a few words from the lawyer, such as, “If you are considering moving into a Continuing Care Retirement Community (CCRC), be sure to investigate its financial stability,” or “Before you buy a condominium unit, ask to see the by-laws. You may be surprised at what you find,” can do much to gain the confidence and future legal business of a client.

More and more clients have become aware that the cost of long-term care can be staggering. Many have seen what it costs to maintain a parent in a nursing home. They will expect their lawyer to appreciate that potential cost and have some answers on how to pay for it. Frolik’s book devotes a chapter to how to pay for long-term care. Those who read it will have a better understanding of why so many lawyers now advertise themselves as elder law attorneys. The complexity of the law surrounding eligibility for Medicaid reimbursement of the cost of nursing home care makes it obvious why so many seek legal advice.

Those approaching later life worry about the possible loss of mental capacity due to dementia, and in particular, they fear the onset of Alzheimer’s disease. That fear is well founded. It is believed that over 50 percent of those age 85 or older suffer some degree of dementia, which for most persons is a progressive, incurable disease. Many begin to evidence symptoms of dementia in their 70’s, and a few suffer early onset of dementia in their 60’s. Others have physical problems that reduce their mental capacity or interfere with their judgment. Even the prescription drugs used to combat the problems of aging can lower the individual’s mental capacity.

The book has an extended chapter on the legal implications of mental incapacity; the concepts of guardianship and conservatorship are covered in detail. Although both guardianship and conservatorship are creatures of state law, the book covers the more general, universal legal issues of these topics. Those who have questions about topics, such as what limited guardianship is or what are the powers of a guardian, will find answers in Frolik’s book. 

The last chapter provides extensive coverage of end-of-life decision-making. It begins with the right of a competent patient to forego life-sustaining medicine. The law recognizes the concept of informed consent that gives the patient final decision-making authority over their healthcare. As a result, case law has established that a competent patient can terminate life-sustaining treatments.

Things get more complicated if the patient is not competent. The book reviews the case history of how decisions are to be made for a dying, mentally incapacitated patient. Essentially the law has determined that under appropriate conditions, life-sustaining treatment can be terminated.

Hopefully, the patient has left instructions about their care, either in a living will or by appointing a surrogate healthcare decision-maker. The book carefully analyses the legal consequences of executing a living will. Unfortunately, living wills are popular but they are not the best choice. Too often a living will either fails to convey the patient’s wishes or is disregarded. The more effective alternative is to appoint a surrogate healthcare decision-maker and for the patient to provide that surrogate with instructions on what kind of medical treatment they wish to have.

The book describes how to draft and execute a healthcare power of attorney that appoints a surrogate healthcare decision-maker. Of course, a practitioner must look to the law of the governing state for specifics, but the book outlines what the power should contain as well as the powers that the state is likely permitted to grant to an agent.

The book then describes how state law deals with incapacitated patients who did not execute a living will or appoint a surrogate healthcare decision-maker. In many cases, the parties involved, the family of the patient and the physician, simply decide what to do. Sometimes a family member or third-party files for guardianship in order to make the decision. However, state law increasingly provides for an automatic appointment of a family member as the surrogate decision-maker. All these possibilities are explained.

The book also covers other relevant statutes, such as HIPAA. Do Not Resuscitate orders (DNR) are reviewed. While a lawyer may never be called upon to draft such an order, lawyers should understand and appreciate the effect of such an order. Finally, palliative and hospice care are discussed. Even organ donation and final disposition of the decedent’s remains are briefly reviewed.

Frolik’s book provides the reader clear and concise coverage of the legal issues that arise from later-life healthcare and of end-of-life decision-making. Any lawyer who regularly deals with older clients will find it to be an invaluable reference book. Moreover, older lawyers may also find the book applicable to their own circumstances.

Author

Lawrence A. Frolik, Professor Emeritus of Law at the University of Pittsburgh School of Law, is a national expert on the legal issues facing older Americans. He is the author, co-author or editor of over a dozen books. He is the author of Elder Law and Later Life Legal Planning (ABA 2017); The Law of Later-Life Health Care and Decision Making, (2d ed. ABA 2018); and Residence Options for Older and Disabled Clients (ABA 2008). He is the co-author of the treatise, Advising the Elderly or Disabled Client (Warren, Gorham, and Lamont, 2d ed. 1999 with semi-annual Supplements). He was awarded a J.D. cum laude and an LL.M. from Harvard Law School, and a B.A. with Distinction from the University of Nebraska-Lincoln, where he was elected to Phi Beta Kappa.