Robert M. Slutsky Associates
Newsletter
Newsletter12: April 2007
The snow seems to have gone away but March and April can have surprises. Hopefully some of the information we provide can help you deal with the surprises in your life. Read on...
New Healthcare POA Law in Pennsylvania
The new Pennsylvania law regarding healthcare decision making became effective on January 29, 2007.
Highlights
Important Definitions:
Incompetent: Unable to understand healthcare decisions or cannot communicate them. This is not to be confused with legal definition of incapacitated which requires a judicial determination and medical testimony. Incompetent therefore only applies in the healthcare decision arena and not to other (typically financial) issues that still require a judicial determination of incapacity.
Healthcare Representative: Essentially a new party in healthcare decision making. Does not need to be appointed by a written document.
End Stage Medical Condition: “Incurable and irreversible medical condition in an advanced state cause by injury, disease or physical illness that will, in the opinion of the attending physician (JUST ONE) to a reasonable degree of medical certainty, result in death, despite the introduction or continuation of medical treatment....” Not intended to preclude care that may have other benefits.
Permanently Unconscious: “A medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment.”
Important Concepts:
When Operative: Living Will and Healthcare POA become operative when a copy is provided to the attending physician and attending physician says principal is incompetent.
Revocation: Can be done in any way, regardless of mental capacity.
Countermand: Reversing decision made by Healthcare Agent or Representative. In other words, even though the doctor can say that the patient is incompetent without a judge, he must also listen to that incompetent person’s decision to reverse the decision of the Healthcare Agent or Representative.
Amendment: Healthcare POA can only be amended when competent but can Countermand when incompetent (seems in conflict).
Must be witnessed.
No presumption that Principal does or does not want end of life care.
*Doctor’s Role is Changed: Put huge responsibility and huge power with treating physician. Doc is given power to determine which family members hold power in the event no Healthcare Agent is appointed and is almost totally insulated from liability as long as he/she acts in “good faith.” This also applies to giving out medical information (would seemingly be in conflict with HIPAA).
End of Life Decisions for Pregnant Women: Must get nutrition and hydration if failure to do so would harm viable fetus. Does not say but that could (would) be removed once fetus is born.
Divorcing Spouse Out: If a spouse is named POA and the parties are divorced or divorcing, the spouse is removed as POA.
No Liability for Healthcare Agent or Healthcare Representative: As long as a healthcare agent or healthcare representative acts in “good faith”, they will have no liability under the statute for their decisions.
No expiration date for the appointment of a Healthcare Agent.
Making Decisions (for Healthcare Agent or Representative): Based on 1. info when principal was OK, 2. If not available use assessment of principal’s preferences and values including religious and moral beliefs.
Assumption: Unless otherwise stated, assumption is that principal does not want the withholding of nutrition and hydration.
Out of Hospital Do Not Resuscitate Order: If doctor believes that patient has an end stage medical condition or is permanently unconscious, doctor can order a bracelet or neckless from the PA. Dept. of Health (or provide the DNR order) that allows emergency medical service providers to withhold CPR or stop it. Does not mean other medical care or comfort measures will necessarily be withheld.
Healthcare Agent cannot be someone’s healthcare provider unless he or she is a member of family.
Health Insurers cannot require you to appoint a Healthcare Agent or force the use of an advance directive.
Relevant Changes
Terminal Condition changed to End Stage Medical Condition. Intended to eliminate connotation of a particular time period such as 6 months since death even in seemingly clear situations is difficult to predict.
Eliminates need for second physician to confirm End Stage Condition.
Person can choose to have agent make all decisions or discuss wishes in document and let agent enforce or make decisions not addressed in document.
Law is very clear that there are no limits on decision making authority (under old law you could only do what you were given authority under the document to do).
Healthcare Representative: When no Healthcare POA exists essentially the treating physician can appoint Healthcare Representative to make healthcare decisions for incompetent individual. In order of preference: 1. Spouse (assuming no divorce action has been filed); 2. Child; 3. Parent; 4. Brother or sister; 5. Grandchild; 6. Friend. If there is a dispute within a class (such as 3 children fighting), doctor can choose the wishes of the majority. Can be appointed by patient in writing or by telling physician. Cannot make end of life decisions unless person in end stage medical condition.
POA cannot be healthcare provider unless a member of family.
Significant Protection for Doctor. Provides “Good Faith” standard for: 1. Following patient’s POA; 2. Complying with Healthcare Agent or Representative; 3. Failing to comply when physician believes that Agent or Representative is not acting with authority; 4. Disclosing healthcare information; 5. Honoring end of life decisions to be carried out.
Adds accountability to healthcare decision making. Requires Healthcare Agent or Representative to: 1. Gather medical information on prognosis and medical alternatives; 2. Distinguish between palliative treatment and treatment which simply prolongs the dying process in case of end-stage medical condition; 3. Consider Principal’s instructions when competent (written and verbal), preferences, values and beliefs, or if not known, consider preservation of life, relief from suffering and restorations of functioning.
Unless there is written direction otherwise, statute presumes the desire to receive artificial nutrition and hydration, however, this can be rebutted by prior information by Principal or knowledge of values and preferences to the contrary.
Requires healthcare providers to have policies and procedures in place to implement this law. Doctor must document, document, document all of the requirements in statute in chart.
New, non mandatory form. http://pahealthcaredecisions.wetpaint.com/page/ACT+169%3A+Section+5471
Be careful using form not in compliance with law. Many other excellent forms (such as 5 wishes) may now be out of compliance because of the definition of “end-stage medical condition.”
Most Elder Law attorneys will not use statutory form because it is too wordy and clients will get headaches.
Nursing Homes and Hospitals: An Interesting Study
Brown University did a study regarding the likelihood of nursing homes sending residents to the hospital. It found that state policies often created financial incentives to send residents to the hospital, even though hospital stays can be disorienting and even dangerous (given the weakness of the resident and the possibility of infection at the hospital).
This study, which included almost every nursing home in the nation resulted in two major findings: 1. The lower the state reimbursement from Medicaid the more likely the nursing home would hospitalize the resident (we surmise to hope that the bed may not be available and a private pay patient would fill it, although this was not specifically stated in the study); and 2. Odds of hospitalization were significantly higher when the state would pay to hold the bed of the hospitalized resident.
The study went on to say that in states with higher reimbursement rates the nursing homes could afford more RNs and other skilled staff resulting in better care and less need for hospitalization. This conceivably conflicts with the bed hold policy since those states with Medicaid paying to hold the bed see much higher hospitalization. The study suggests that a pay for performance system where nursing homes are financially rewarded for superior preventive care and less hospitalization is best for both the nursing home and the residents.
Interest Rates and the Housing Market
Rates have stabilized in the low 6% range for a 30 year no point loan. Current rates are only a bit higher than the lowest they have been in 40 years.
The housing market continues to moderate. Prices have dropped more than any time in US history. In this area properties are staying on the market longer and sellers (especially new home builders) are making accommodations to move inventory.
The Federal Reserve Bank has paused raising short term interest rates. However indications that the job market is tight and recent indications the economy is slowing conflict. The first suggests that no interest rate drops (to spur the economy by making money cheaper) will be necessary since tight job markets usually means employees can squeeze larger salaries from their employers while recent drops in home sales, implosion of the sub-prime mortgage market (meaning more foreclosures and less homes to sales to riskier borrowers) suggests a need for stimulation to keep the economy from becoming too weak.
Remember that most Home Equity Lines of Credit have an adjustable rate. Many of the adjustable loans taken out over the last few years are going to adjust soon. This means payment may rise dramatically. Refinancing into a fixed rate mortgage may be advisable at this time.
People who have seen their adjustable rate and negative amortization loans adjust upwards should consider refinancing NOW.
In addition to Elder Law, our firm practices real estate law and originates mortgages. Please call us at (610) 940-0650 with any questions or for rate quotes.
And finally . . . . .
Planning your Will vs. Planning for LTC Needs
A study by John Hancock Life Insurance Company indicated that most people would rather discuss their Last Will and consider their mortality than discuss planning for the costs of Long Term Care. While most people seem to understand the importance in planning for the costs of long term care, the emotions surrounding losing their independence make people very uncomfortable. This is quite ironic. For most people who are not fabulously wealthy, the enormous potential cost of long term care is very likely to eat up any assets that they would like to give away in their wills.
*WE WANT TO HEAR FROM YOU. TELL US WHAT YOU THINK, GOOD OR BAD*
If you do not want to receive this newsletter, please email or call the office and we will remove you from the list.
Robert Slutsky, Esq. has been practicing Elder Law for 14 years. He helps families in Montgomery, Delaware, Philadelphia, Chester and Bucks Counties. Mr. Slutsky has represented local Area Agencies on Aging, long term care facilities and was a member and officer on the CAPS Board of Directors for over 10 years. Home visits are available. You may reach him at (610) 940-0650, robslutsky@comcast.net or the website at www.slutskyelderlaw.com.
DISCLAIMER: The content of this Newsletter is for general information only. It is not intended to be legal, tax, financial, medical or other advice. The reader should obtain legal, tax, medical or other advice from a competent professional to address his or her specific needs. We do not endorse any particular service provider. If a service provider is mentioned in an article it is simply because we may have come across them in our travels and cannot speak to their quality of service or integrity.
