In addition the number of people with cognitive disorders including Alzheimer’s disease and other forms of dementia is also increasing rapidly. The number of people with other chronic health conditions is also increasing because the health care system is able to keep such people alive longer with many different treatments and medications.
The implications of the increasing number of elderly people, many of whom have dementia and other chronic diseases are staggering for our state budget and economy and also for the legal community. Many more people are living in long-term care facilities of various kinds or are receiving care at home, and are receiving government assistance to pay for this care.
The biggest source of funding is Medical Assistance (MA), which is a federal and state funded program to pay for nursing home level of care for those with very low income and assets. This is an entitlement program in the sense that if a person has spent down his assets to a level that qualifies for MA, he is entitled to receive those benefits. Because this is so expensive, the State of Minnesota (and most other states) has made it increasingly hard to qualify for MA. The application and rules for MA are very complicated.
Other state programs provide funding for care at home or at assisted living-type facilities. These are generally not entitlement programs and there is often a long waiting list to receive these benefits.
Another issue resulting from the increase in cognitive disorders is whether a person has capacity to sign legal documents or make legal decisions. An incapacitated person is defined in Minn. Stat. §524.5-102(6) as:
“An individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.”
The required level of capacity varies depending on the legal document or specific activity involved. The more complicated the situation, the higher the degree of capacity is needed. For example, to sign a Health Care Directive, a person must have “decision-making” capacity, which is the ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health care decision.
To sign a Will or Trust, a person must understand the nature and amount of his assets and also must know the natural objects of his bounty, in other words, his close relatives. To make a gift, the person must have the capacity to sign a Will, plus must understand the effect the gift may have on his own future financial situation. The capacity to sign a contract is even higher – the person must understand the nature and effect of the contract.
In the guardianship context, a person is incapacitated if he lacks sufficient understanding to make or communicate responsible personal decisions or has demonstrated deficits in behavior that indicate an inability to meet personal needs for medical care, nutrition, clothing, shelter or safety.
For a conservatorship, a person is incapacitated if he is unable to manage his financial or business affairs, or has assets that are being or will be wasted.
A person may have a lucid period when he has capacity, even though he may not have capacity before or after, and if he signs a document during that lucid period, if it valid. The attorney or others involved should document the person’s capacity, including discussions and behavior at the time of signing, recent medical evaluation, social history, and ability to communicate.
Sometimes a person can be influenced by another person to do something that is not in his own best interests or that will benefit the person doing the influencing to the detriment of others. One Minnesota case defined it as “influence of such a degree exerted upon the individual by another that it destroys or overcomes the individual’s free agency and substitutes the will of the person exercising the influence for that of the individual.”
• Opportunity to exercise influence
• Confidential relationship
• Active participation in the transaction by the influencer
• Disinheritance of those that probably would have been remembered, such as spouse or children
• Singularity of the changes in favor of the influencer
• Proof of actual exercise of influence or persuasion
People that have cognitive problems are susceptible to financial exploitation by others, including family members, friends, health care workers, etc. Red flags to be aware of include:
• Opening new bank accounts, especially a joint account
• Checks signed by someone other than the vulnerable adult
• Large withdrawals
• Prevention of communication between the vulnerable adult and others
• Purchases uncharacteristic of the vulnerable adult
• Firing of caregivers
• Change in doctors
• Significant financial changes without advice from usual attorney or financial advisor
Such people can also be exploited on a personal or emotional level. Signs to look for include:
• Poor personal hygiene
• Confusion or disorientation
• Loss or weight or dehydration
• Spending excessive time with unfamiliar people
• Loss of memory of recent events or family
In a Health Care Directive (HCD), a person can appoint an agent to make health care decisions for him or her in various situations. This is sometime called an Advance Directive. It usually applies when the person is unable to make his own decisions, such as if he has dementia or is in a coma. The HCD can also contain instructions for the type of health care the person wants or doesn’t want. This can include instructions on end of life care such as feeding tubes, mechanical resuscitation, antibiotics, or other procedures. It can also include where a person wants to receive treatment or to be at the time of death, whether or not the person wants to donate his organs, receive hospice care, etc. A HCD can be revoked or revised by the person making it at any time, as long as he or she still has capacity.
A HCD must be in writing, state the person’s name, be signed and dated and be signed by either a notary or by two witnesses.
The instructions in a HCD are advisory, and the agent appointed in the HCD has the authority to make the final decision. When there is conflict between the agent and other family members, or in the situation where there is no HCD in place, the doctors and physicians are in a difficult situation. It is really important for each person to discuss their health care preferences with all of their family members so that they understand and will comply with the person’s wishes. It is also important to give a copy of the HCD to their primary doctor and hospital.
When the agent appointed in a HCD or the instructions in the HCD itself directs a provider to provide treatment that in reasonable medical judgment has a significant possibility of sustaining the life of the person, the health care provider must, by law, take all reasonable steps to provide such services.
If the agent directs the provider to withdraw or withhold life-sustaining treatment, the provider may follow those directions. However, if the provider is unwilling to comply with those instructions, it is immune from liability if it administers health care necessary to keep the principal alive, despite the instructions from the agent, if is promptly notifies the agent of its unwillingness to comply, documents the notification in the medical record and permits the agent to transfer the principal to another provider who is willing to comply with the agent’s decision.
Another document is a Provider Orders for Life Sustaining Treatment or POLST. This is a medical order, authorized and recognized by general standards of health care practice, not by statute or legal practitioners. It is signed by a health care provider after receiving informed consent from the patient or his agent, and has the authority of a prescription. It is not signed by the patient or his health care agent or guardian.
Do Not Resuscitate (DNR)/Do Not Intubate (DNI) – A DNR/DNI order is signed and dated by a physician and orders providers to refrain from administering CPR. There is no specific Minnesota statute governing DNR/DNI. When a 911 call is made and an ambulance arrives at a person’s home, the EMCs are generally required to start CPR if the person is not breathing, unless they are aware of a DNR/DNI order. They are trained to look for such an order, but won’t take much time to do so. Some elderly people put a DNR/DNI order on their refrigerator so that it is easily seen by an EMT.