Elder Care Collaboration: Medical and Legal

Elder Law

Elder Care Collaboration: Medical and Legal (Part 1 of 3)

Many older adults utilize the expertise of attorneys and physicians in the complex pursuit of the best possible health and wellbeing. At Weatherby & Associates, PC we pride ourselves on interdisciplinary collaboration to help our clients live well. We should always acknowledge the areas of opportunity across professions to work together to serve our clients/patients.

The August 2016 issue of Bifocal, a Journal of the Commission on Law and Aging, features an article which outlines instances in which trusted professionals can collaborate to better address serious issues that impact family systems. Authors Marshall B. Kapp, Shenifa M. Taite, and Gregory Turner penned the article, “Medical-Legal Partnerships: Six Situations in Which Elder Law Attorneys and Physicians Caring for Older Patients Need Each Other.” The authors promote a strengths-based approach whereby attorneys and physicians have unique skills and often shared goals.

This blog will address the first two situations listed in the article. The first is “Decisional Capacity Issues.” Adults are assumed to be able to make decisions about their life and health. It is important to remember that there is a crucial difference between an inability to make decisions and the act of making a decision that family members vehemently disagree with. It is also important to realize that decision-making capacity can fluctuate over time and even during the course of a single day.  Often medical and legal professionals are placed in the middle of arguments about capacity. The authors note that “the elder law attorney needs physician involvement to help recognize when decisional capacity may be compromised and to quantify the existence, degree, and reversibility or alterability.” Conversely, “the physician could benefit by working with an elder law attorney who can identify and delineate the potential legal implications of the older person’s decisional impairment and then evaluate the authority for, limits of, and policy advisability of possible interventions.” Determinations of capacity should not rest in the hands of one professional.

The second situation the authors address is “Elder Mistreatment.” Many older adults are vulnerable to psychological and financial mistreatment. The authors say elder mistreatment “often takes the form of a pattern of acts or omissions, rather than a single instance.” Older adults also for a variety of reasons may passively accept abuse. They may be afraid that they will be taken out of their home and placed in a nursing home, for instance.  The attorney in such a situation can provide guidance to the health care provider regarding any express legal mandate to report the abuse to the proper authorities, as well as the legalities of making any such report without an express mandate, given the obvious confidentiality concerns at issue.

The next two situations as outlined by the authors will be featured in Part 2 of this blog. They are “self-neglect” and “medical payment systems.” To access the full article in Bifocal, visit http://www.americanbar.org/publications/bifocal/vol_37/issue_6_august2016/six-situations-attorney-physician-collaboration.html. Contact our office at 860-769-6938 with any questions about our work to advocate for older adults and their families.

Elder Care Collaboration: Medical and Legal (Part 2 of 3)

Understanding the necessity for expertise in elder care matters is vital in helping clients to live a happy and healthy life. A collaboration of professionals is also necessary is most instances. Authors Marshall B. Kapp, Shenifa M. Taite, and Gregory Turner published a recent article in the professional journal Bifocal called “Medical-Legal Partnerships: Six Situations in Which Elder Law Attorneys and Physicians Caring for Older Patients Need Each Other.” Part 1 of this blog addressed two situations explored in this article: “decisional capacity issues” and “elder mistreatment.”

This Part 2 of the blog will address “self-neglect” and “medical payment issues.” While mistreatment and abuse are clear problems involving older adults, the problem of self-neglect is additionally worrisome and complicated. The article notes that the majority of cases reported to Adult Protective Services involve self-neglect or a marked lack of attendance to personal needs such as health care, nutrition, and hygiene.  Trusted professionals including physicians and attorneys may recognize the signs of self-neglect.

Issues about decisional capacity can often arise in this situation as well. Older adults (as with all adults) do have the right to dictate their own lifestyle decisions. However, when their choices can be interpreted as self-neglect, professionals work to proactively prevent worsening health and hospitalizations. Physicians need to “characterize the nature and seriousness of the risk posed, and try to identify clinically and socially viable intervention strategies.” The older adult needs to actively participate in difficult discussions around how they could be unknowingly engaging in self-neglectful acts.

The next situation highlighted in the journal article is “Medical Payment Issues.” It is essential that older adults are properly educated about what payment options are available to them as patients utilizing an often-confusing health care system. Issues often arise over a lack of knowledge of Medicare as one prominent medical payment option. “Some of the most salient of these issues concern older patients who have entered hospitals through emergency departments and have been held in Observational Status rather than admitted as in-patients prior to being transferred to nursing facilities, as well as hospital discharge and readmission practices that may jeopardize coverage for subsequent rehabilitation services.”

Physicians should remain in contact with personnel at hospitals and rehabilitation centers where their patients are temporarily residing. They can comment on their patients’ past medical history, treatments, prognosis, and recent trends. An elder law attorney can assist in advocating for their clients by helping their clients and their involved family members to articulate how medical interventions are benefiting their client. Attorneys can also offer their opinions regarding the appeal of decisions rendered by Medicare.

The third and final blog of this series will address the final two situations outlined in the Bifocal article, “family issues” and “confidentiality.” Weatherby & Associates, PC is a truly unique law firm because we practice Life Care Planning Law. Our Life Care Coordinator works to get to know clients in their home environment so that she can learn about the norms or baselines of each client.  Additionally, the Life Care Coordinator is a vital member of the team who works to advocate throughout any changes that occur, including hospitalizations and rehabilitations. To learn more about the firm, contact us at 860-769-6938.

Elder Care Collaboration: Medical and Legal (Part 3 of 3)

The August 2016 edition of the Journal of Commission on Law and Aging, called Bifocal, featured an article called “Medical-Legal Partnerships: Six Situations in Which Elder Law Attorneys and Physicians Caring for Older Patients Need Each Other.” In parts 1 and 2 of this blog, we outlined the first four situations: decisional capacity issues, elder mistreatment, self-neglect, and medical payment issues. In part 3 of this blog, the final two situations will be discussed: family issues and confidentiality.

The roles of family members are often two-fold—family member and caregiver. Individuals who assume both roles need to ensure that they are supported and healthy so that they can continue to sustain the continued efforts the roles require. It is also imperative for professionals to consider that family issues can stem from present situations, but also from years of history of complex dynamics among family members. No singular intervention is going to change historical family issues. Therefore, attorneys and physicians can both provide necessary education to their clients/patients and the family members they choose to be involved in their medical and legal planning. While physicians can advise about possible medical treatments and long term effects, attorneys can counsel about advance directive options. It is also essential that the professionals maintain an understanding of the needs and goals of their client/patient and assert that they are advising in that individual’s best interest, in some cases in contrast to the interests of some family members.

The final situation, confidentiality, highlights an issue that presents itself often in conjunction with family issues. Both the attorney and physician should be very knowledgeable about the Health Insurance Portability and Accountability Act (HIPAA). The authors note that “the physician can educate the attorney about the kinds of health care information collected pertaining to a client, how and where that information is documented and stored, how to interpret the meaning of documentation,” in addition to other potentially helpful information.  Additionally, the “attorney can educate and counsel the physician about the legal parameters of information collection, maintenance, and sharing under common law confidentiality principles, state statutes and regulations.” Though involved family members may feel that they have a right to knowledge of their loved one’s health care and legal details and planning, they cannot be privy to that information unless expressly authorized by the client/patient.

The authors conclude that both attorneys and physicians have ethical obligations to their clients/patients and that they can seize many opportunities to work together to best serve them.

At Weatherby & Associates, PC we pride ourselves on being effective advocates and collaborating with other like-minded professionals to establish the best possible team for our clients. If you have any questions about our practice, please contact us at 860-769-6938.


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Hank’s primary focus is on the needs of his clients and what works best for them in their individual circumstances. He is very practical and works to educate his clients without being condescending. At the same time, he keeps himself up to date… Read More
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