9.3 Elder law and end-of-life decision-making
6 min read•august 14, 2024
Elder law and end-of-life decision-making tackle complex issues surrounding aging and mortality. These topics cover , prevention, and ethical considerations in medical care for older adults.
Advance directives, , and end-of-life choices are key aspects of this area. The law aims to balance respect for individual with protection of vulnerable elders and ethical healthcare practices.
Legal Issues in Elder Care
Guardianship and Alternatives
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- Guardianship is a legal process where a court appoints an individual to make decisions on behalf of an incapacitated person
- Guardianship of the person grants authority to make decisions about personal matters (healthcare, living arrangements)
- Guardianship of the estate grants authority to manage the ward's financial affairs and property
- The guardian has a fiduciary duty to act in the best interests of the ward
- Alternatives to guardianship that allow for greater autonomy include powers of attorney, trusts, and supported decision-making agreements
- Powers of attorney designate an agent to make decisions on behalf of the principal in specified domains (healthcare, finances)
- Trusts allow for management of assets and distributions according to the grantor's wishes
- Supported decision-making agreements provide assistance to individuals with disabilities in making their own choices
Elder Abuse and Legal Protections
- Elder abuse, , and financial are major concerns in elder law
- Physical abuse involves intentional use of force causing injury or pain (hitting, restraining)
- Neglect is the failure to provide necessary care and services (hygiene, nutrition, medical care)
- Financial exploitation is the improper use of an elder's resources for another's gain (theft, fraud, undue influence)
- Legal protections and reporting requirements aim to prevent and address mistreatment of vulnerable adults
- Adult Protective Services (APS) investigates reports of abuse, neglect, and exploitation
- Mandatory reporting laws require certain professionals to report suspected elder abuse to authorities
- Criminal penalties and civil remedies (restraining orders, restitution) can hold perpetrators accountable
Ethical Considerations in End-of-Life Decisions
Foundational Principles and Balancing Interests
- End-of-life decision-making involves choices about medical interventions, life-sustaining treatments, palliative care, and the circumstances of one's death
- Key ethical principles are respect for autonomy, , non-maleficence, and justice
- Respect for autonomy upholds the right of competent individuals to make decisions based on their values, goals, and beliefs
- Beneficence obligates healthcare providers to act in the best interests of patients and maximize benefits while minimizing harm
- Balancing autonomy with other principles can be challenging in cases of patient refusals of care, requests for potentially inappropriate treatments, or disagreements between stakeholders
- Quality of life assessments and determining the proportionality of interventions involve weighing benefits and burdens
- Shared decision-making aims to reconcile patient preferences, clinical judgment, and family input
Palliative Care, Euthanasia, and Physician-Assisted Dying
- Palliative care and hospice focus on comfort, quality of life, and support for terminally ill patients and their families
- The ethical basis is shifting from curative to comfort-oriented goals
- Pain management, emotional and spiritual support, and practical assistance are key components
- Withdrawing or withholding life-sustaining treatments is ethically and legally permissible in certain circumstances
- Respecting patient wishes, assessing proportionality of interventions, and minimizing suffering are guiding factors
- Artificial nutrition and hydration, mechanical ventilation, and cardiopulmonary resuscitation are common treatments that may be forgone
- Active euthanasia remains controversial and is illegal in most U.S. states
- Arguments for euthanasia emphasize ending suffering and respecting autonomy
- Arguments against cite potential abuses, slippery slope concerns, and the integrity of the medical profession
- Oregon's allows with safeguards
- Eligible patients must have a terminal illness, make repeated requests, and self-administer the medication
- Critics argue that assisted dying undermines palliative care and may disproportionately affect vulnerable groups
Advance Care Planning Documents
Types and Purposes of Advance Directives
- Advance directives are legal documents that allow individuals to specify their healthcare preferences and designate surrogate decision-makers in the event of incapacity
- The requires healthcare facilities to inform patients of their right to execute advance directives
- Advance directives can be modified or revoked by the individual at any time
- Living wills state an individual's preferences regarding life-sustaining treatments and interventions in end-of-life scenarios
- They provide guidance to healthcare providers and surrogate decision-makers
- Common provisions address artificial nutrition and hydration, mechanical ventilation, pain relief, and organ donation
- Healthcare proxies or durable powers of attorney for healthcare designate an agent to make medical decisions on behalf of an incapacitated patient
- Proxies have a duty to make decisions consistent with the patient's known wishes or best interests
- Successor proxies can be named in case the primary proxy is unavailable or unwilling to serve
POLST Forms and Advance Care Planning Process
- (Physician Orders for Life-Sustaining Treatment) forms translate patient preferences into actionable medical orders
- They are typically used for seriously ill patients and are transferable across care settings
- POLST forms address CPR, medical interventions, antibiotics, and artificial nutrition and hydration
- Signatures from the patient or surrogate and a healthcare professional are required
- Advance care planning involves ongoing conversations between individuals, their loved ones, and healthcare providers to clarify values, goals, and preferences for end-of-life care
- The process can ease the burden on surrogates and ensure care aligns with patient wishes
- Discussions should cover prognosis, treatment options, quality of life considerations, and spiritual or cultural beliefs
- Advance care planning documents should be readily accessible, regularly reviewed, and updated as needed
Autonomy and Informed Consent in Elder Law
Capacity Assessment and Surrogate Decision-Making
- Autonomy is the right of individuals to make decisions about their own lives and healthcare based on their values, goals, and beliefs
- Respecting autonomy is a core principle in elder law and end-of-life care
- Autonomy encompasses the right to accept or refuse medical treatments and to make choices about living arrangements and financial matters
- Capacity is the ability to understand information, appreciate the consequences of decisions, and communicate choices
- Capacity is decision-specific and can fluctuate over time
- Standards for determining capacity vary by state and can involve clinical assessments and legal proceedings
- Incapacity may result from cognitive impairment, mental illness, or other conditions that affect decision-making abilities
- Surrogate decision-making aims to respect patient autonomy when individuals lack capacity
- Surrogates should make choices based on the patient's known wishes () or best interests
- Surrogate hierarchy typically prioritizes spouse, adult children, parents, and siblings
- Disputes among surrogates or with healthcare providers may require ethics consultations or court intervention
Informed Consent and Advance Care Planning
- is the process by which patients receive relevant information about their condition, treatment options, risks, and benefits, and voluntarily make decisions about their care
- It is an expression of autonomy and a legal and ethical requirement in healthcare
- Disclosure should cover the nature and purpose of the intervention, alternatives, risks and benefits, and the consequences of non-treatment
- The patient must have capacity to understand the information and make a voluntary choice free from coercion
- Advance care planning supports autonomy by allowing individuals to articulate their preferences and values before a crisis occurs
- Advance directives (living wills, healthcare proxies) document choices for future healthcare decisions
- Conversations with loved ones and healthcare providers clarify goals, values, and preferences
- Regular review and updating of advance directives is important as circumstances and priorities may change over time
- Balancing autonomy with beneficence and non-maleficence can be challenging when patients refuse recommended care or request potentially inappropriate treatments
- Providers should explore the reasons behind patient choices, address misconceptions, and present alternatives
- Ethics committees can help mediate conflicts and determine whether overriding patient autonomy is justified to prevent serious harm
Key Terms to Review (23)
Advance directive: An advance directive is a legal document that outlines a person's preferences for medical treatment in case they become unable to communicate their wishes due to illness or incapacitation. It serves as a crucial tool in ensuring that individuals receive care aligned with their values and desires at the end of life, guiding healthcare providers and loved ones in making difficult decisions.
American Bar Association Commission on Law and Aging: The American Bar Association Commission on Law and Aging is a specialized group within the ABA focused on legal issues affecting older adults. It seeks to improve the quality of legal services provided to the aging population and addresses significant concerns such as elder law, end-of-life decision-making, and access to justice for seniors.
Autonomy: Autonomy refers to the capacity of an individual to make informed, uncoerced decisions regarding their own life and actions. It is rooted in the principle of self-determination, emphasizing the importance of personal choice and freedom in both moral and legal contexts. The concept of autonomy connects deeply with issues of consent, personal rights, and the ethical implications of decision-making, especially in sensitive areas like healthcare, privacy, and regulatory frameworks.
Beneficence: Beneficence is the ethical principle that emphasizes the moral obligation to act for the benefit of others, promoting their well-being and preventing harm. This principle is particularly relevant in contexts where individuals are vulnerable, such as in healthcare and legal settings involving elderly individuals facing end-of-life decisions. It underlines the importance of prioritizing the interests and welfare of those in need, often guiding professionals in making compassionate choices.
Best interests standard: The best interests standard is a legal and ethical principle used to guide decisions regarding the welfare and care of individuals, particularly vulnerable populations such as the elderly or those unable to make their own decisions. This standard emphasizes the need to prioritize the individual's well-being, preferences, and rights in decision-making processes, especially in situations involving health care and end-of-life choices. It serves as a benchmark for evaluating actions taken on behalf of individuals who may not have the capacity to voice their wishes.
Capacity Assessment: Capacity assessment refers to the process of determining an individual's ability to make informed decisions about their own medical care and other important life choices. This assessment is crucial, particularly in situations involving elder law and end-of-life decision-making, as it evaluates whether a person can understand relevant information, appreciate the consequences of their choices, reason through the options, and communicate their decisions effectively.
Cruzan v. Director: Cruzan v. Director is a landmark U.S. Supreme Court case from 1990 that addressed the right to refuse life-sustaining medical treatment. This case focused on Nancy Cruzan, a woman in a persistent vegetative state, and her parents' efforts to terminate her artificial feeding. The Court's decision underscored the legal recognition of the right to die and the importance of clear evidence of a patient's wishes regarding end-of-life care, which connects deeply with the themes of elder law and end-of-life decision-making.
Death with Dignity Act: The Death with Dignity Act is a law that allows terminally ill patients to voluntarily end their lives through the administration of prescribed lethal medication. This act emphasizes patient autonomy, giving individuals the right to choose how they want to face their final days, ensuring that they can avoid prolonged suffering and die with dignity.
Elder abuse: Elder abuse refers to the intentional or negligent acts that cause harm or serious risk of harm to older adults, encompassing physical, emotional, financial, and sexual abuse, as well as neglect. This term highlights the vulnerabilities of elderly individuals and the potential for exploitation or harm as they face challenges related to aging, such as cognitive decline and dependence on caregivers.
Elder Justice Act: The Elder Justice Act is a federal law aimed at addressing the issues of elder abuse, neglect, and exploitation. It was enacted in 2010 as part of the Affordable Care Act and serves to promote elder justice by enhancing the investigation and prosecution of elder abuse cases, providing support for adult protective services, and establishing grant programs for prevention efforts. This act is particularly significant as it underscores the importance of protecting older adults in the context of their legal rights and the decision-making processes surrounding their end-of-life care.
Exploitation: Exploitation refers to the act of taking unfair advantage of a person or group, often for personal gain or profit. This term is particularly relevant in contexts where individuals, especially vulnerable populations such as the elderly, are subjected to manipulation or coercion, undermining their autonomy and decision-making capabilities during critical life moments.
Guardianship: Guardianship is a legal relationship in which one person, the guardian, is appointed to make decisions on behalf of another person, the ward, who is unable to make those decisions due to incapacity. This arrangement often arises in the context of elderly individuals who may face diminished capacity due to age-related conditions or illnesses. Guardianship aims to protect the interests and welfare of the ward while providing necessary support in decision-making regarding personal care, medical treatment, and financial matters.
Informed Consent: Informed consent is the process through which an individual voluntarily agrees to a proposed medical treatment or intervention after being fully informed of its risks, benefits, and alternatives. This concept is critical in ensuring that individuals have the autonomy to make decisions regarding their health and well-being, and it involves clear communication between the provider and the patient, ensuring understanding and respect for personal choices.
Living Will: A living will is a legal document that outlines a person's preferences regarding medical treatment and life-sustaining measures in situations where they are unable to communicate their wishes due to illness or incapacity. This document serves as an important tool for individuals to assert their rights over healthcare decisions, particularly at the end of life, allowing them to express their desires about treatment options such as resuscitation, feeding tubes, and pain management.
National Academy of Elder Law Attorneys: The National Academy of Elder Law Attorneys (NAELA) is a professional organization dedicated to improving the quality of legal services provided to older adults and individuals with special needs. It focuses on advocating for the rights of the elderly in areas such as guardianship, estate planning, and end-of-life decision-making, emphasizing the importance of ethical practices and education for legal professionals in this specialized field.
Neglect: Neglect refers to a failure to provide necessary care, support, or attention to an individual, often leading to physical or emotional harm. In the context of elder law and end-of-life decision-making, neglect can manifest in various forms, such as failing to ensure adequate medical care, safety, or emotional support for elderly individuals who may be vulnerable or unable to advocate for themselves.
Palliative care: Palliative care is a specialized medical approach aimed at improving the quality of life for patients with serious, often terminal illnesses, by alleviating suffering and providing relief from symptoms. This type of care focuses on addressing physical, emotional, and spiritual needs, and it can be provided alongside curative treatment or as the main focus when curative options are no longer viable.
Patient Self-Determination Act: The Patient Self-Determination Act (PSDA) is a U.S. law enacted in 1990 that ensures individuals have the right to make decisions about their own medical care, including the right to accept or refuse treatment. This act promotes patient autonomy by requiring healthcare providers to inform patients of their rights regarding advance directives and end-of-life care options, which is particularly significant for elderly patients facing critical health decisions.
Physician-assisted dying: Physician-assisted dying refers to the process where a doctor provides a terminally ill patient with the means to end their own life, typically through the prescription of lethal medication. This practice raises significant ethical and legal questions surrounding autonomy, consent, and the role of medical professionals in end-of-life care. It is often discussed in relation to issues of patient rights, the definition of death, and the moral implications of facilitating death.
POLST: POLST stands for Physician Orders for Life-Sustaining Treatment, which is a medical order that outlines a patient's preferences for end-of-life care. This document is designed to ensure that individuals receive the specific medical treatments they desire or wish to avoid, based on their values and goals. It is particularly important for patients with serious illnesses or those who are near the end of life, providing clear guidance to healthcare providers about the patient's wishes.
Power of Attorney: A power of attorney is a legal document that allows one person to act on behalf of another in legal and financial matters. It is particularly important for individuals who may become incapacitated or unable to make decisions for themselves, enabling a designated agent to manage their affairs. This tool is crucial in ensuring that a person's wishes are respected, especially regarding health care decisions and financial transactions as they age or face serious health issues.
Substituted judgment: Substituted judgment is a legal and ethical standard used to make decisions on behalf of individuals who are unable to express their own wishes, particularly regarding medical treatment or end-of-life care. This concept emphasizes respecting the individual's preferences, values, and best interests, reflecting what the person would have decided if they were capable of making the choice themselves. In contexts involving elderly individuals and critical health situations, substituted judgment plays a crucial role in guiding healthcare providers and family members in decision-making processes.
Washington v. Glucksberg: Washington v. Glucksberg is a landmark Supreme Court case from 1997 that addressed the constitutional right to physician-assisted suicide. The Court ruled that there is no constitutional right to die with assistance from a doctor, thereby upholding Washington state’s ban on assisted suicide. This decision has significant implications for elder law and end-of-life decision-making, as it touches on issues of autonomy, dignity, and the rights of terminally ill patients.