How Mediation Can Help an Elder

Mediation, a form of out-of-court dispute resolution, is very much in the news these days.

Everyone’s heard about divorce mediation, and maybe you have a friend or family member who has used it for his or her divorce.  A new field of mediation, marital mediation, is now emerging.  In marital mediation, a mediator helps a couple who wants to stay married resolve their conflicts.  It is an alternative to marital counseling, and sometimes it works when marital counseling does not. 

In mediation, a neutral person (often a lawyer, sometimes another professional) leads the disputing parties through decision-making by facilitating their discussions.  A very important part of mediation is to help people actually express their needs, rather than their positions.  Often, they find out that their needs are compatible, and they were just taking adverse positions, which resulted in an apparent (but not a real) conflict.  

In Massachusetts, there is a 200-plus member organization of family mediators called the Massachusetts Council on Family Mediation.  www.mcfm.org.  There is a trove of useful information on their website describing the different kinds of mediation available.  Some of these types might be of special interest to elders:  

Are you having difficulty discussing your estate plan with your grown children?  A neutral mediator can lead that discussion and help you and your children come to clarity.

Are you and your children having conflict over your plans for the future?  A mediator is trained to level the playing field, so that your feelings and aims will be heard by your children. 

Is there a family business that you would like to transfer to the next generation but it is very complicated, and you wish to achieve your goals?  Mediators can help lead that discussion and get and help you evaluate the professional help that might be needed in putting the plan into effect. 

Are you having a dispute with someone where you reside?  Use of a neutral mediator to lead that discussion might be very helpful. 

Are you having marital problems?  Marital mediation is a very useful and productive way to address disputes, especially in “mature” (long) marriages. 

Are you getting married and feel you need to have a prenuptial agreement?  Formulating a prenuptial agreement with your intended spouse through mediation is a wonderful way to do this.

Do you want to explore having a postnuptial agreement?  These agreements made between you and your spouse after your marriage to try to “fix” something that is of concern to both of you.  This can be handled very well in mediation sessions.  

Do you or someone you know have a dispute regarding the probate of an estate?  Family conflict can sometimes be addressed and eliminated (or lessened) in mediation.  

All these types of issues can respond quite well to the mediation process.  So if you have an issue or conflict that is not going away, you might want to give mediation a try. 

© 2011 Laurie Israel.

Elder Competency – When Can You Make Your Own Decisions?

As we and our loved ones grow older, we start seeing and experiencing situations of decline – physical and mental.  Yes, the decline is accompanied with the peace of mind and contentment that comes from years of experience.  But the physical problems every older person has needs to be dealt with on an ongoing basis.  

Mental decline is something else. It interferes with your quality of life, your ability to handle the details pertaining to day-to-day living – shopping and making food, paying bills, making sure your retirement income and assets safe (difficult in these times!), and are being used for your care, and making sure you see your doctor and take your pills.  When mental decline is severe, another person needs to act for you, either through a health care proxy, a power of attorney, or a court guardianship or conservatorship proceeding.  Mental decline so severe as to be deemed incompetency needs to be determined as a legal and practical matter, so that outside care and supervision for the sufferer can be put into place.

Competency is legal term that means that a person has the soundness of mind and mental capacity to be qualified to act legally for him or herself.  Capacity means the ability to receive, process, and perform mentally.  Both terms relate to an intelligent understanding and perception of one’s options and one’s actions. 

We lawyers know legal competency when we see it.  People entering into agreements and contracts, and writing wills and other estate planning documents must be competent in order for the documents to be legally binding.  Therefore, lawyers need to constantly evaluate clients’ competency (and incompetency) in assessing clients’ ability to think about, formulate, and execute, documents.  Another way to articulate legal competency is when a person is able to handle his or her financial affairs and make rational and considered decisions about one’s own health care and medical treatment. 

When working with a client, we are looking for several factors: (1) whether the client is able to articulate the reasons behind his or her decisions consistent with the client’s own identified goals; (2) the degree of alertness of client’s state of mind and ability to understand relevant information; (3) whether the client is able to understand the nature of his/her own situation and the consequences of his/her decisions; and (4) whether the client’s decisions are consistent with the client’s lifetime commitments and basic values.  Michael Schuster, Representing Older Persons with Diminished Capacity – Ethical Considerations, 263 Practising Law Institute/ Estate Planning & Admin. 339 (May, 1998).

This all boils down to whether the client understands the alternatives available and whether the person can make a decision based on the facts and appreciate the consequences of his/her decision. 

Competency is not an “all or nothing” attribute.  A person might not be able to balance his checkbook, but can address medical decisions or make a last will and testament.  Some people are competent to do some things and not competent to do others.  Some people are bad at handling their own money, but are very sure as to whom they want to have their money after their death.

Diminished capacity is really a sliding scale between full competency and something much less.  Sometimes a person might be competent one day and lack competence the next day.  We are taught as lawyers that a person who is competent when he executes a last will might be incompetent two hours later, but the will he made when competent will be legally binding.  In cases of diminished capacity, we lawyers are careful to provide evidence in the file of a person’s competence to execute the document, such as writing down in-office discussions with the client in the client’s file.

The client, of course, needs to know what he or she is signing.  This means that when discussing the drafting and review of various legal documents, the client must understand the need for a particular document and what the document does. 

There are slightly different standards with important differences in competency for different types of legal documents.  Testamentary capacity for executing wills requires knowing the objects of one’s bounty, the property held, and the disposition of the property one makes in one’s last will.  It’s actually a lesser standard than that which is required to enter into a contract.  To appoint a health care agent or a future guardian, a lesser standard applies – you need to know whom you wish to act for you if you cannot act for yourself. 

To make a gift, you must understand the nature and effect of your donation.  To grant a deed and enter into a contract (including a divorce agreement), you must be able handle your financial affairs and be able transact business.  All of these are subject to a sliding scale of competency and need to be evaluated on a case-by-case basis at the time you are working with the client.

Determining mental competency is not an exact science, but is something lawyers must do.  Because lawyers are concerned about competence when a client faces financial matters and decisions (and because we deal with client finances and money issues primarily), we are a bit mystified when the determination of whether someone has legal competence to handle business matters is relegated to physicians and psychologists, but that is the state of the law in Massachusetts.

The Massachusetts Uniform Probate Code (MUPC) requires a medical certificate in order to have a guardian or conservator appointed to make decisions for an incapacitated person.  MUPC Section 5-303 and 5-404.  The medical certificate must be completed by a registered physician, a licensed psychologist, or a certified psychiatrist nurse clinical specialist. 

There are questions in the form of fill-in-the-boxes regarding overall impairment (alertness, memory, emotional and psychiatric functioning (i.e., ranging from “No” impairment to “Severe” impairment).  There is a question as to how these impairments cause the individual to “have an inability to receive and evaluate information or make or communicate decisions.”  This standard seems to be drawn with a much cruder brush than the standards of competency applied on a daily basis by lawyers doing their work with clients, because we test our clients with the actual work at hand that we are doing with the client and not in some abstract way.  

If you or anyone you know is having cognitive impairment that is causing problems, perhaps the person can put planning documents into place (such as powers of attorneys, health care proxies and last wills and testaments) using his/her own decision-making before the time for action has passed and legal competency is no longer present.

 

© 2010 Laurie Israel.  All rights reserved.

Pacemakers Can Preempt Your Living Will Directives

An article appeared in The New York Times Magazine on June 20, 2010, entitled “What Broke My Father’s Heart” by Katy Butler.  http://www.nytimes.com/2010/06/20/magazine/20pacemaker-t.html?_r=1&pagewanted=1

It chronicles the life and death of her father, a retired college professor who had a pacemaker installed shortly after dementia set in.  The pacemaker’s battery was expected to last ten years.  Both her parents had signed living wills, and in fact and were adamantly opposed to their lives extending beyond usefulness and capacity to enjoy living.  They did not wish to be a burden to each other or their children.  Butler’s memoir attracted 442 reader comments http://community.nytimes.com/comments/www.nytimes.com/2010/06/20/magazine/20pacemaker-t.html and five letters reacting to the article were printed in the July 4, 2010 issue of The New York Times Magazine http://www.nytimes.com/2010/07/04/magazine/04Letters-t-002.html.

A stroke at age 79 disabled Butler’s father, Jeffrey. Several years later, after dementia had progressed a surgeon refused to operate on a painful hernia without installing a pacemaker.  Butler’s mother was anxious to relieve her husband’s pain, exhausted with care giving.  In deference to the doctors, she gave her consent to the implant. The author’s heart stopped when she later learned about her mother’s decision.  This medical decision took a minute, but resulted in devastating consequences for her father and the family that lasted many more years. 

What the doctor did not point out was that the pacemaker could permit Butler’s father to live in a mute and dependent state for another 10 years.  The option of using a temporary external pacemaker was not brought up or discussed.  The temporary external pacemaker could have been disconnected after the surgery.

Medicare would have paid the doctor $54 for a (long) office visit to discuss the temporary external pacemaker.  The surgeon earned $461 for the implant procedure, and the hospital a flat fee of about $12,000, of which almost half went to the maker of the device. The hernia was fixed.  In-home care for the rest of Jeffrey’s life cost tens of thousands of dollars.  This is how our country’s medical cost and medical insurance problem grows. 

Several years later, with her father still alive and in a demented state, Butler learned that pacemakers could be deactivated without surgery.  Her father’s heart would return to its previous slow rhythm, and he would eventually die, perhaps in his sleep.  Butler’s mother asked the family physician to deactivate the pacemaker.  He refused. 

Butler and her mother learned that her mother had the legal right to ask for the withdrawal of any treatment under her husband’s health care proxy.  The pacemaker was, in theory, a form of medical treatment.  But her husband’s health care proxy requested no life support if he was comatose or dying, but said nothing about dementia, and did not define a pacemaker as life support.  They learned that (as of that time) no cardiology association had given its members clear guidance on when, or whether, deactivating pacemakers was ethical.  No physician or hospital would help them. 

Two years later (nine years after the onset of his dementia), Butler’s father finally died in a hospital, of pneumonia. His pacemaker continued to work. Butler’s mother died a short time later..  She had declined open-heart surgery after the surgeon said he would refuse to honor her do-not-resuscitate order. “It would not be fair to his team,” the doctor said.

Since her father’s death, the Heart Rhythm Society and the American Heart Association have issued guidelines saying that patients or their legal surrogates have the moral and legal right to request the withdrawal of any medical treatment, including an implanted cardiac device.  In addition, it says that deactivating a pacemaker is neither euthanasia nor assisted suicide, and that a doctor could not be compelled to do so in violation of his moral values. In such cases, it continues, doctors “cannot abandon the patient but should involve a colleague who is willing to carry out the procedure.”  This guideline came too late for Butler and her family. 

You can benefit from the sad experience of Kathy Butler’s family during the last year of her father’s life and her generosity in sharing it with us. When you are executing a living will or medical directive, read the language that defines medical or mental triggers and removal of possible treatments very carefully.  Make sure that life support can be terminated if you suffer from dementia, not only if you are comatose or dying.  Make sure the directive permits the tuning off or removal of a pacemaker.  

© Laurie Israel. 2010.  All rights reserved.