Unbefriended Elderly in Arizona

By | Guardianships/Conservatorships, Senior News | No Comments

It is the resident without family. It is the patient that can not return home from the hospital because there is no one to help or provide support. It is the resident who has dementia who is unable to speak for themselves that never planned with powers of attorney. It is the developmental disabled young girl whose parents pass away without planning who would make decisions in their stead.

It has been stated by numerous agencies affecting long term care that the “single greatest category of problems we encounter are those that address the care of decisionally incapable patients…those who have no living relatives or friends who can be involved in the decision making process”.  These are the most vulnerable of patients.  They have no one to speak for them.  They have no one to sign consents for them. They have no one to care for them.  This type of patient has been termed the “Unbefriended Elderly” by the American Bar Association.

The Abandoned or Unbefriended Elderly can be described as one whom:

  • Does not have decisional capacity to give informed consent for treatment.
  • Has not executed advance directives and now has no capability to do so.
  • Has no legal surrogate

It is estimated that approximately 3-4% of all nursing home censuses are feared to fall into this category.  This patient is subject to over treatment, under treatment, or treatment that does not address their wishes or their well being.  The facility is also at risk of non payment and/or having their ethics called into question even though they are trying to act in the clients best interest.

Most often the Unbefriended Elderly are people who have been socially isolated much of their lives.  The majority of these individuals are encountered at hospitals, nursing homes and frequently have chronic illness.

How does our society handle these clients?  How does your health care center handle these clients?  Presently, some states have passed legislation for the statutory authorization for healthcare consent when no surrogate is available.  Others have enacted laws that authorize trained volunteers to make health care decisions on behalf of the unbefriended individuals.  Some states have public guardianship programs.  Nursing facilities frequently are put in a quandary over who is to make decisions on behalf of these clients.  Ethics committees, physicians are asked to make health care decisions.  Social Services are asked to write checks, purchase items, act as representative payee.  The Health care facilities are faced with either doing these things for the client, or not getting paid.  Is there a conflict of interest?

This involvement is necessary in many cases but does raise some ethical questions.  What can be done to assist these clients, ethically, and with ease so that the SNF can do what needs to be done and the rights of the individual are never compromised?

JacksonWhite has made these individuals a priority – to identify and assist these clients to help them have a voice.  The Area Agency on Aging has also identified this as a paramount issue.  Dawn Savattone, Ombudsman, currently works with these clients to facilitate their  health care decisions, ALTCS application or other needed interventions.  We applaud their efforts.   Our goal is to assist the skilled nursing facility and Ombudsman to  find a way to identify and assist these clients to maximize their services, ensure revenue to the skilled nursing center and offer health care direction.

We suggest the following strategies to assist this vulnerable population:

  1. JacksonWhite has developed an advanced admission screening tool to allow the health care centers to identify the Unbefriended Elderly and how to refer to proper entities to minimize potential problems.  This tool also allows for family and friend monitoring, advance directive planning and surrogate investigation.
  1.  JacksonWhite encourages you to make a plan for your center that deals with the specific issues related to this population. Make this plan include what will be done if the client has no family/surrogate and/or client no longer has capacity.
  1.  We encourage and invite you to call JacksonWhite for a review of client status and benefit options.  We evaluate whether the client needs a limited conservatorship approved through the court, if they need guardianship, whether or not the client needs the ALTCS program (now or in the future).

Often health care providers try to handle these clients on their own.  Administration, Business Office and Social Service usually take the lead.  Although this is noble and does bring some resolution we believe that the health care providers are entitled to more support and guidance to reduce any potential conflict of interest and gaps in payment.

We are hopeful that by assisting you in identifying and planning for these individuals we can resolve many of the potential problems before they occur and that we can simultaneously improve the health care and lives of this vulnerable population.

*note – material for this article taken from Incapacitated and Alone:  Health Care Decision-Making for the Unbefriended Elderly.  By Naomi Karp and Erica Wood.  Published by the American Bar Association Commission on Law and Aging.

What to do if no health care decisions or POA have been signed

By | Guardianships/Conservatorships, Powers of Attorney, Senior News | No Comments

Of course, the best possible plan is for the patient to have a current health care power of attorney that meets the requirements of the statute.  In this situation, the patient’s designated agent shall act as the patient’s surrogate.  Also, if the court appoints a guardian for the express purpose of making health care treatment decisions, that guardian shall act as the patient’s surrogate.  If neither of the situations applies, and there is no opposing opinions between family members, the healthcare provider is responsible to make reasonable efforts to contact the following individual or individuals in the indicated order priority, who are available and willing to serve as the surrogate, who the have the authority to make health care decisions for the patient and who shall follow the patient’s wishes if they are known:

  1. The patient’s spouse, unless they are legally separated.
  1. An adult child of the patient.  If the patient has more than one adult child, the health care provider shall seek the consent of a majority of the adult children who are reasonable available for consolation.
  1. A parent of the patient.
  1. If the patient is unmarried, the patient’s domestic partner if no other person has assumed any financial responsibility for the patient.
  1. A brother or sister.
  1. A close friend of the patient. (An adult who has exhibited special care and concern for the patient, who is familiar with the patient’s health care views and desires and who is wiling and able to become involved in the patients health care and wants to act in their patients best interest).

If the health care provider cannot locate any of the people listed, the attending physician may make health care treatment decisions for the patient after the physician consults with and obtains the recommendations of an institutional ethics committee, if not available decisions may be made after consulting a second physician.

There are limitations, however…

A surrogate who is not the patient’s agent or guardian shall not make decisions to withdraw the artificial administration of food or fluid.

A surrogate shall not make decisions to admit the patient to a level one behavioral health facility licensed by the department of health services.

By far the best situation is to PRE-PLAN and have the necessary documents that state your wishes, but the Arizona surrogacy laws are in place to give health care professionals guidance when this pre-planning has not occurred.

Myths About Choosing a Guardian | Estate Planning

By | Estate Planning, Guardianships/Conservatorships | No Comments

There is one question that almost every parent will avoid answering if they can, and that question is: “Who will take care of your children if you die?” It may be a tough question to answer, but it’s necessary for parents to choose a guardian for their children in case something happens to them. Below are some common myths about choosing a guardian:

1. There is a perfect match.

Most parents who look to choose a guardian to take care of their children look for one who would raise their children exactly like they would. The truth is that no one will raise your children exactly like you would. The best way to choose someone is to write down your four most important core values (parenting style, religious views, attitudes about education and money, etc.). Then find someone who meets 3 out of 4 of those values and go with them. There is no such thing as a perfect match.

2. Someone will step up for the job.

Your friends and relatives may love your children, but that doesn’t mean they’ll be fighting with each other over who will take care of them. If you don’t have a will, a judge will make the final decision, not you.

3. You left a letter or an email.

Many parents say they’ve written a letter or an email that outlines their wishes in case something happens to them, but these documents aren’t legally binding. A judge may take your wishes into consideration, but ultimately the judge can choose someone they think is better suited.

4. You don’t have to ask.

When you pick a guardian for your children, it’s important that you ask the person if they’d be willing to take on that responsibility if you were to pass away. The guardian will also be looking to get additional information about your family’s day-to-day expectations.

Having a will that lists a guardian for your children is extremely important. If something happens to you, there is no telling where your children will end up. If you have questions about wills or estate planning, contact a JacksonWhite estate planning attorney. You can call 480-464-1111 to schedule a consultation with estate planning attorney Dave Weed or Otto Shill.

Top 10 Reasons why you may need to apply for a Guardianship or Conservatorship

By | Guardianships/Conservatorships | No Comments

Health care and financial powers of attorney are helpful tools when it comes to protecting your loved ones. Guardianships and Conservatorships are important tools to have when your loved one becomes incapacitated. Here are the top 10 reasons why you may need to apply for a guardianship or conservatorship:

Your loved one:

  1. Is unable to make medical or financial decisions.
  2. Is unwilling or is unable to sign a power of attorney.
  3. Is easily agitated or becomes aggressive or combative.
  4. Gets lost or disoriented, but continues to operate a vehicle.
  5. Is being taken advantage of by a family member, friend, or con artist.
  6. Has trouble controlling spending.
  7. Isn’t safe living at home, but refuses to move.
  8. Changed power of attorneys many times.
  9. Gave power of attorney to an untrustworthy person.
  10. Needs to be treated in a mental facility.

Applying for a guardianship or conservatorship can give you an opportunity to protect your loved one and look out for his or her interests. To learn more about guardianships and conservatorships, contact a skilled Elder Law attorney at JacksonWhite.

Call us at (480) 464-1111 or fill out the form below.