E-Newsletter of April 23, 2013 | Vol. 6, No. 16
ARTICLE OF THE WEEK
Handle with Care
Last week, I created a care guide for my 8-week-old son. He’s my firstborn, and now that I’ve returned to work, he is in the care of five adults who are not his mother. As I wrote the guide, I wondered if I could expect it to be followed. If I had written a similar guide for my grandmother, could I have expected it to be followed?
Grandma entered a nursing home in the late stages of dementia. If I had provided a guide for her care, I could not have expected it to be followed. I was not Grandma’s health care agent. I was not her appointed guardian. Neither Grandma nor a court had given me authority to make decisions about her physical wellbeing.
However, Grandma did have a health care directive, and she loved shampoo that smelled like peaches and cream. If the directive contained instructions for her hair to be washed in peaches ‘n’ cream shampoo, would the instructions have been followed? Doubtful.
Under Minn. Stat. § 145C.11, subd. 2(a), “With respect to health care provided to a patient with a health care directive, a health care provider is not subject to criminal prosecution, civil liability, or professional disciplinary action if the health care provider acts in good faith and in accordance with applicable standards of care.” Arguing “bad faith” or failure to meet “applicable standards of care” over shampoo scent would be a tough sell, especially if the preference was not linked to a medical condition. Instructions linked to medical needs or standards set by law or regulation, like an instruction identifying Grandma’s personal attending physician (42 C.F.R. § 483.10(d)(1)), would have a stronger chance of being implemented and enforced.
Grandma’s directive did not specify shampoo scent, but it did name my mother as health care agent. If Mom created a care guide instructing the facility to wash Grandma’s hair with peaches ‘n’ cream shampoo, could she demand recourse if she discovered the scent of Pert Plus in Grandma’s curly locks? She could try. Mom could sue for battery on Grandma’s behalf (if Grandma delegated Mom power over her legal claims via a valid power of attorney), but Mom probably wouldn’t succeed (and the judge probably wouldn’t be happy with her legal counsel).
Minn. Stat. § 145C.11, subd. 2(c) addresses the issue of a care provider acting against a health care agent’s instruction but only with regard to instructions for withholding or withdrawing treatment necessary to keep the resident alive. The provider is not liable for refusing to follow the health care agent’s instructions if it 1) notified the health care agent of its unwillingness to comply; 2) documented providing notice in the resident’s medical record, and 3) permitted the health care agent to transfer the resident’s care to a provider willing to comply with the instruction.
The availability of immunity for a care provider failing to follow a life-or-death instruction spells out what may be obvious to the objective and emotionally unattached: Grandma and Mom can provide any instruction they’d like, but they can’t count on it being followed without a connection to law or an industry standard of care.
Our clients are often not objective or emotionally unattached, and articulating detailed instructions for long-term care can be reassuring. As attorneys, we play an important role in managing clients’ expectations, helping them express their wishes, and, when necessary, helping them pick their battles. Grandma didn’t smell like peaches and cream in her last days. My son probably won’t hear Curious George before afternoon naps on weekdays. However, Grandma did receive excellent care and grooming. And my baby is going to be okay too.
Submitted by Laura Orr, Esq.
At Home Care Costs Up in Minnesota | Businessweek
Minn. launches easier food stamp form for senior citizens | MPR News
Senior Citizen Drivers Considered for Crash Test Ratings | Automotive Discovery
Campaign against elder abuse embraced state-wide, rooted here in Anoka County | ABC Newspapers
Telling the Difference Among 50 ‘Senior’ Financial Credentials | The New York Times
For the Elderly, Diseases That Overlap | The New York Times
Elderly Patients Routinely Prescribed Risky Drugs | The New York Times
Submitted by Joel Smith, Esq.
There are no cases to report this week.
There are no new statutes, regulations or bulletins to report this week.
This summer, Hamline Law is offering Elder Law both for law school credit and for CLE. It will be taught by former Elder Section chair Suzy Scheller, and runs from June 14-17. To view the schedule and course description, click here.
Submitted by Thaddeus Pope, J.D., Ph.D.
MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, June 25, 2013. The Medical Assistance Committee is a study group to analyze Elder Law Section member questions and case studies and to discuss administrative policies and procedures in relation to Medical Assistance in Minnesota. Cathryn D. Reher of Long, Reher & Hanson, P.A., is Committee Chair. For directions, or to attend by phone, please contact Tracie Fenske with Long, Reher & Hanson, P.A., at 952-929-0622 at least 24 hours in advance of the meeting. Topics for the meeting may be submitted to firstname.lastname@example.org under the subject heading “MA Committee Topic”, or faxed to 952-542-9201. Please be reminded that the meeting location is: Estate & Elder Law Services (formerly MAO Legal Services), Monroe Village, 1900 Central Avenue NE, Minneapolis, Minnesota 55418. The meeting takes place in the building’s conference room. There are a few parking spaces behind the building and lots of street parking. People should walk to the back of the building and come to the back door which faces directly into the meeting room.
GOVERNING COUNCIL: The next meeting of the Elder Law Section Governing Council, and the Annual meeting, will be on Friday, June 21, 2013 at 3:30 pm. Please be reminded that the meeting location is: Estate & Elder Law Services (formerly MAO Legal Services), Monroe Village, 1900 Central Avenue NE, Minneapolis, Minnesota 55418. The meeting takes place in the building’s conference room. There are a few parking spaces behind the building and lots of street parking. People should walk to the back of the building and come to the back door which faces directly into the meeting room. For further information, please contact Laura Zdychnec, Chair, at: email@example.com.
DON'T FORGET THAT THE ELDER LAW WEBSITE IS A GREAT RESOURCE. Here’s what you can find on the Website: Links to the DHS Health Care Programs Manual, the DHS Bulletin on treatment of uncompensated transfers, the Minnesota Bankers Association Compliance Bulletin on Powers of Attorney, legislative summary; Practice Links to organizations such as NAELA, ABA Commission on Law and Aging, Links to Federal and State Government Agencies, Statutes, and Regulations; Meeting Notices, Listings of Officers and Council Members, Section Bylaws, and more.
Go to the Section Website