Legal Aspects of Ageing

Dr Margi GouldFebruary 2014

Rural Health Academic CentreExcellence and equity in Rural Health

through education, research and engagement

Learning objectives

• Understand the concept of ‘capacity’ and its relevance to decision-making by older patients including decisions regarding powers of attorney, wills, medical and lifestyle matters

• Understand the separate types of powers of attorney covering financial, medical and lifestyle matters

• Understand the legal framework for guardianship and administration in Victoria

• Understand the legal framework for medical decision-making including decisions about the limitation of medical treatment and advance care planning

• Appreciate the significance of elder abuse, along with risk factors for abuse and interventions

• Appreciate issues associated with ageing which can affect fitness to drive

Capacity

• What is it ?

• Who has it ?

• Who needs to assess it ?

• Why do we need to assess it ?

Broadly speaking, when a person has capacity to make a

particular decision, they are able to do all of the following:

• understand the facts involved

• understand the main choices

• weigh up the consequences of the choices

• understand how the consequences affect them

• communicate their decision

For example,

a person might be able to decide

• Where they want to live (personal decision),

• but not be able to decide whether to sell their

house (financial decision).

• They can do their grocery shopping (make a simple decision about money),

• but not be able to buy and sell shares

(make a more complex decision about money).

Capacity can be regained

• A person can regain capacity or increase their capacity.

• For example, they can regain consciousness or learn new skills

that will enable them to make certain decisions for themself.

• A further example relates to people with a mental illness.

They can have capacity to make decisions at certain times

but not be able to make some or all decisions at other times.

• It is essential to remember that capacity is decision specific.

• This means that, where there is doubt, a person’s capacity

must be reassessed every time a decision needs to be made.

Examples of Capacity

Thinking back to your experiences inMD2

Have you assessed someone’s capacity ?

Have you seen someone have capacity assessed?

Can you think of other examples / situations ?

Can you think of barriers ?

Can you think of pitfalls ?

What resources / tools do you know of ?

http://www.publicguardian.lawlink.nsw.gov.au/agdbasev7wr/publicguardian/docum

ents/pdf/capacity_toolkit0609.pdf

MMSE IS NOT AN ASSESSMENT OF CAPACITY

JUST BECAUSE A PERSON MAKES A DECISION YOU DISAGREE WITH

(OR WOULDN’T MAKE YOURSELF) DOESN’T MEAN THEY LACK

CAPACITY

Just because someone agrees with you and cooperates with your plan

doesn’t mean they have the capacity to consent to the medical

treatment plan

Powers of attorney (Victoria)

Definition

A legal document where a competent adult (‘the donor’) gives another competent adult (‘the attorney’) the power to make decisions on their behalf.

There are four powers

1. general power of attorney

2. enduring power of attorney (financial)

3. enduring power of attorney (medical treatment)

4. enduring power of guardianship

Why have enduring powers of attorney?

• life is unpredictable

• general power of attorney becomes invalid if the donor loses capacity; ‘enduring’ means the power continues

• allows the donor control over who makes decisions on their behalf in the event that they can’t

• creates formal relationship with someone who knows the donor’s wishes for financial, medical or lifestyle matters

• avoids applications to VCAT for guardian/administrator

Enduring powers of attorney

• Who can make one?

• Anyone 18 years of age and over who has capacity.

• ‘Capacity’ or ‘legal capacity’ means the ability

to reason things out.

• To understand, retain, believe, evaluate

and weigh up relevant information.

Enduring powers of attorney

At the time of making the appointment, the donor must be able

to understand matters such as:

– the sorts of powers the attorney will have

– the sorts of decisions they will have the authority to make

– the effects that their power could have on the donor

– how to cancel the arrangement in the future

Enduring powers of attorney

• Choosing an attorney

• must be 18 and have capacity themselves

• know and understand the donor’s interests and wishes

• have the necessary skills

• be trustworthy

• be available and prepared to do the job

• donor can revoke EPA while competent and appoint someone else.

Enduring power of attorney (financial)

• Instruments Act 1958 (amended 1 April 2004)

• for financial and legal decisions only

• e.g. managing your banking, property or paying bills

• Note: enduring power of attorneys made prior to April 2004 remain valid as long as they were made according to the legislation of the time

Enduring power of attorney (financial)

• Making the appointment

• can specify when the power begins

• can appoint more than one attorney

o joint

o joint and severally

o alternative

• can place conditions/limitations on the operation of the power

• signing of the form must be witnessed

• attorney(s) must formally accept the appointment

Enduring power of attorney (financial)

• Responsibilities of the attorney

The attorney must:

• act in the donor’s best interests• wherever possible, make the same decision the

donor would have made• keep accurate records of dealings and

transactions made under the power• keep the donor's property and money separate

from their own• avoid any conflicts of interest

Enduring power of attorney(medical treatment)

• Making the appointment

• can only appoint one agent

• can appoint alternate agent

• power begins when person loses capacity

• signing of the form must be witnessed

When a doctor witnesses a MEPOA they are declaring that they believe the signatory to be competent (even if they are the second witness)

? Same standard for nursing staff

? Same standard for medical students

MEPOA

• Agent’s powers

• agent can consent to medical and dental treatment, and

• refuse medical and dental treatment

• agent can only refuse medical treatment on behalf of a patient if:

­ the treatment would cause unreasonable distress, or

­ the agent believes that the donor would consider the treatment unwarranted

MEPOA

• Limitation on agent’s powers

• cannot consent to ‘special procedures’

o sterilisation

o termination of pregnancy

o removal of tissue for transplant

These require consent from VCAT.

• cannot consent to psychiatric treatment

o governed by the Mental Health Act 1986

Enduring power of guardianship

• Guardianship and Administration Act 1986

• for lifestyle decisions only

• e.g. where the person lives or healthcare they receive

• attorney is known as ‘the guardian’

Enduring power of guardianship

• Making the appointment

• can only appoint one guardian

• can appoint an alternative guardian

• cannot appoint professional carer

• power begins when donor loses capacity

• signing of the form must be witnessed

• guardian must formally accept the appointment

Enduring power of guardianship

• Making the appointment (cont.)

• can specify the guardian’s powers

o accommodation

ohealthcare

o access to persons

oemployment

• can state wishes for your guardian to take into account when making decisions

You Decides Who Decides

THE GUARDIANSHIP LIST, VictorianCivil and Administrative Tribunal

(VCAT)

• Some people have a disability caused by an injury, illness orageing.

Because of their disability, they may be unable tomake reasonable decisions about issues like their healthcare, accommodation or financial affairs.Under the Guardianship and Administration Act 1986 youcan apply to VCAT for an order appointing a guardian, to makepersonal and lifestyle decisions, or an administrator, to makefinancial and some legal decisions, for an adult with a disability.

VCAT will only make an order appointing a guardian or an

administrator when:

• the person has a disability,

• the person cannot make reasonable decisions because of that disability,

• there is a need to make decisions,

• there is no less restrictive way of meeting this need, and

• it will promote the person’s best interests.

VCAT

• VCAT requires a medical report describing the disability and its effects on the person’s ability to make reasonable decisions.

• VCAT will also consider the wishes of the person and of their nearest relatives or other family members.

Applying for guardianship and/or administration is easy.

• A special printed form is used and is available from VCAT.

• Information and assistance is also available to help you from the Office of the Public Advocate’s Advice Service – 9603 9500/1800 136 829.

• The VCAT hearing is not as formal as a court hearing and

• VCAT tries to help people appearing before it feel comfortable.

• If a person cannot travel to a hearing VCAT may agree to accept evidence over the telephone.

VCAT and the Office of the Public Advocate have a 24 hour

emergency service.

• Hearings must be fair and unbiased.

• Legal representation is not necessary, although you may ask VCAT to allow you to have a lawyer.

• If VCAT makes an order appointing a guardian or an

administrator the order may last for up to 3 years, but will be reassessed during that time.

• The guardian and/or administrator must act in the person’s best interests

What is ACP ?What is an AHD ?

Advance care planning is about planning ahead for future healthcare, in case a person becomes too sick to speak for themself.

Another name is Advance Health Directive

Who needs ACP ?

Residents of RACFElderly PatientsPalliative Care PatientsPatients with early dementiaPatients with chronic progressive disabling diseases (eg

MS, Parkinson’s Disease)“Frequent Flyers” with increasing attendancesPatients for whom you would answer “no” to the

surprise questionPatients who have definite beliefs about their

healthcare (even if different to your own).

The paperwork

• MEPOA

• Statement of Choices

• Refusal of Treatment Certificate

• Limitation of Medical Treatment

• Medical Treatment Plan

• Letter (signed & dated written document) describing the persons wishes & values

Resources on OPA website

Refusal of Medical Treatment Certificates

• A specific legal document

• Lodge with VCAT within 7 days of signing

• OPA website has PDF formatted refusal of treatment certificates for both competent and incompetent patients available for download

LMT

• Have you seen LMTs completed ?

• Who can complete an LMT ?

• Where is an LMT kept ?

The paperwork ofAdvance Care Planning /

Advance Health Directives

Just like consent paperwork, it represents that a conversation has taken place.

It is ongoing (a work in progress)

It can be changed at any time

ACPOK

What is Elder Abuse?

• ?

• 6% of older persons in the community are likely to experienced significant abuse in the last month

Elder Abuse Subtypes

• Psychological

• Physical

• Sexual

• Financial

• Neglect

Key points re Elder Abuse (article)

• To explore a risk factor framework for abuse through a systematic literature review of studies in community-dwelling elders.

• Risk factors can be grouped as relating to the elder person, perpetrator, relationship and environment.

• 13 statistically significant risk factors were reproduciblein a range of settings.

• Current evidence supports the multifactorial aetiology ofelder abuse.

Risk factors : Elder Person

• Cognitive impairment

• Behavioural problems

• Psychiatric illness or psychological problems

• Functional dependency

• Poor physical health or frailty

• Low income or wealth

• Trauma or past abuse

• ethnicity

Risk Factors : perpetrator

• Caregiver burden or stress

• Psychiatric illness or psychological problems

Risk factors : relationship

• Family disharmony

• Poor or conflictual relationships

Risk factors : environment

• Low social support

• Living with others (except for financial abuse)

So you suspect elder abuse ?

• What next ?

4.1 Requirements of the driving task

The driving task involves a complex and rapidly repeating cycle that requires a level of skill and the ability to interact with both the vehicle and the external environment at the same time.

Information about the road environment is obtained via the visual and auditory senses. The information is operated on by many cognitive processes including short- and long-term memory and judgement, which leads to decisions being made about driving.

Decisions are put into effect via the musculoskeletal system, which acts on the steering, gears and brakes to alter the vehicle in relation to the road.

This repeatingsequence depends on

• vision• visuospatial perception• hearing• attention and concentration• memory• insight• judgement• reaction time• sensation• muscle power• coordination.

Age & driving

• Advanced age, in itself, is not a barrier to driving, and functional ability rather than chronological age should be the criterion usedin assessing the fitness to drive of older people.

Age-related physical and mental changes vary greatly between individuals but will eventually affect the ability to drive safely. Professional judgement must determine what is acceptable decline (compensated by the patient’s long experience and self-imposed limitations on when and where they drive) and what is irreversible, hazardous deterioration in driving-related skills, requiring reporting to the licensing authority.

This may require careful consideration and specialist referral.• Note that some driver licensing authorities require medical

examination or assessment of drivers beyond a specified age.

There are some medical diagnoses (many more common in the elderly)

that require reporting to the licensing authority

• Can you think of some ?

• Do you know the consequences of reporting ?

• Or of not reporting?

Driving & the elderly

• When do you need to think about driving ?

• Have you seen or assisted with a driving assessment ?

• What did it involve ?

• What factors influence the safety to drive decision ?

Case AB

• Mrs AB is a 70 year old frail woman who lives in her own home with her middle-aged son whom has an acquired brain injury.

• She is independent with her personal care, and undertakes many of the household activities such as cooking and cleaning.

AB

• Over the last six months her son has increasingly taken over managing the finances, and needs to prompt her to turn off the gas after cooking.

• She still drives.

• There are no other children, and she has little contact with other family members, nor any close friends.

Risks

• ?

AB cont

• She presents with multiple rib fractures and pulmonary contusions.

• While initially quite guarded, she eventually tells staff in the emergency department that her son pushed her over and kicked her.

• She does not want police involved as she believes that her son would kill her.

What assessments need to be done ?

• ?

AB cont

• The treating team notes significant cognitive impairment, most likely vascular dementia, and the CT-brain scan undertaken during the work-up reveals previous head trauma and a small haemorrhage.

• The team considers that it is unsafe for her to return home and recommends that she move into residential care.

• She accepts this recommendation, but there is doubt as to whether she has an adequate grasp of her financial matters and the ability to understand the financial aspects of moving into residential care.

Just because someone agrees with you and cooperates with your plan

doesn’t mean they have the capacity to make the decision

discussion

• Issues ?

Issues

• Elder abuse

• Capacity

– Abuse

– Medical treatment

– Choice of residential care

• Substitute Decision Makers

• Driving

Case CD

• Mr CD is an 85 year old man, living in high level care.

• He has advanced dementia, is largely aphasic, and no longer recognises family members.

• He spends most of the day in bed or sitting in a recliner chair.

• His weight has gradually declined over the last six months to 45 kg and he has had three hospital admissions for aspiration pneumonia due to ongoing swallowing difficulties.

CD cont

• He presents with a further episode of aspiration pneumonia.

• His eldest daughter requests full treatment including the insertion of a PEG feeding tube.

• In relation to resuscitation issues, she also requests cardiopulmonary resuscitation and invasive ventilation should he have a cardiac arrest or develop respiratory failure which cannot be treated on the ward.

CD cont

• His wife appears to accept the advice of her daughter.

• Unfortunately, there is no advance directive to guide the treating team on Mr CD’s wishes.

Discussion

• ?

Would having the following information help ?

Acknowledgements & references• Synopsis - Principles of Clinical Practice 3 - Aged Care p34-37 © University of

Melbourne - Melbourne Medical School – 2014 (MDConnect)• Documents from OPA including slides & resources from Take Control Workshop

(June 2013)http://www.publicadvocate.vic.gov.au/Including “when medical treatment is abated” Slides from ACPOK education sessions• http://www.publicguardian.lawlink.nsw.gov.au/agdbasev7wr/publicguardian/docu

ments/pdf/capacity_toolkit0609.pdf• http://www.anzsgm.org/vgmtp/Legal/index.html• Johannesen M, Giudice D. Elder abuse: a systematic review of risk factors in

community-dwelling elders. Age & Ageing. 2013; publication pending.• NDSS Diabetes & Driving• Austroads. Assessing fitness to drive for commercial and private vehicle drivers.

4th edition. March 2012.www.austroads.com.au/assessing-fitness-to-drive/• Prognostic Indicator Guidance Paper ©National Gold Standards Framework Centre England 2005 Date: Sept 2008

E-Learning Packages

• The Victorian Geriatric Training Program Learning Modules for Junior Doctorshttp://www.anzsgm.org/vgmtp

• Palliative Care Curriculum for Undergraduates (PCC4U) http://www.pcc4ulearningresource.org/