Legal Representation and Eldercare Regulation

One in three people receiving rehabilitation in care facilities suffer harm

According to alarming statistics, but living in care facilities could have avoided 60% of the abuse, which is a significant concern in America. (Mollot, 2014). The idea that elderly people need care as they age originated from the realization that older people constantly exposed themselves to harm as a result of their aging state. Since degenerative diseases affect older people’s lifestyles, personal safety, and social well-being, they are unable to achieve or maintain a high level of useful physical, emotional, and social well-being. Despite the old age and some of the factors that influence the elderly, it is imperative for them to receive the utmost care as well as legal representation. The government of America has made strides towards ensuring that the old receive the best possible care and has structured legislation to that effect, along with ensuring that they are legally represented (Detering, Hancock, Reade & Silvester, 2010). However, in recent times, there has been a disconnect between the care of the elderly and their legal rights due to the failures of the federal and state agencies to take the issue of eldercare with the right amount of seriousness required. The elderly in the society also need to be treated with respect and dignity as other members of the community in America despite their inability to take proper care of themselves.

Federal and State Regulations on Eldercare

Numerous laws have been enacted in the United States (U.S) that are used to protect the elderly from neglect and abuse while in assisted living facilities and nursing homes. As per the federal laws, the care facilities for the elderly are required to take part in Medicare and Medicaid that establish the quality of care under the Nursing Home Reform Act. Aka, Deason, and Hammond (2011) point out that the Nursing Home Reform Act requires that nursing homes provide the elderly with services and activities that are geared towards maintaining and attaining the complete practicable physical, mental and psychosocial well-being, which is in agreement with a written plan of care. In contrast, state laws equally demand that nursing homes and care facilities in their jurisdiction to conform to providing the best quality of eldercare. The state of California has robust set up plans for the elderly population in the country that comprehensively covers their welfare issues. The legislation in the state of California allows eldercare services to be provided under strict licensing of the relevant facilities. Additionally, the laws in California require that the providers of eldercare services meet specific requirements such as but not limited to; adequate and trained staffing, provide proper nutrition and hygiene, promote quality of life for the patients, and maintain acceptable parameters and treatment.

Purpose and Need for Representation

There exist elderly law attorneys who are advocates tasked with the representation of the old and their loved ones on legal matters. Since an older adult requires care while they are unable to fend for themselves, the requirement for an attorney is necessary to provide them with guidance on their affairs including; healthcare, guardianship, Medicare, retirement, and other vital matters. According to the Natural Research Council (2003), elderly persons in the society require legal representation on the issues involving their affairs and well-being while they are not in a position to take care of it all. The foreseeable condition of being incapacitated is a challenge that comes with old age; hence, before that stage arrives it is essential for the elderly to have adequately prepared themselves. The involvement of an elderly attorney who is a specialist in representing older adults aids in providing legal advice and assistance on important financial, health and planning matters. These attorneys also help if the senior is incapacitated and the caregivers require legal help for issues involving the elderly persons.

Assessment of Competency and Executive Functioning

While legal representation is vital for the elderly, so is competency and executive functioning assessment that aids in determining the frame of mind of the elderly person. Competency assessment of these adults helps evaluate their cognitive impairment and mental state to determine the legal capacity of the elder person. The competency assessment is crucial since it may have a substantial impact on the personal rights of the elderly person (Giroux, Tetreault & Landry, 2015). Competency Assessment Process (CAP) is used to determine a person’s need for legal protection, which is decided by health and social service professionals. Contrastingly, assessment of executive functioning investigates a wide range of cognitive processes and behavioral competencies including but not limited to; planning, problem-solving, verbal reasoning, and the ability to remain attentive (Chan, Shum, Toulopoulou & Chen, 2008). The elderly are exposed to these tests to determine their executive functioning, which helps in determining whether they require assistive care. Therefore, utilizing competency and executive functioning of the elderly persons assists in assessing their need for legal representation and assistance in taking care of themselves.

Legal Issues

As disclosed by Mason and Stephenson (2015), it is the constitutional right of every American citizen to have legal representation should they require legal services. For the elderly in the community, who are unable to take care of themselves, it usually is the mandate of the family members or the assigned guardian to step in to take care of the affairs of the elder person. The elderly require representation in the event they become mentally incapacitated and unable to tend to their issues; thus, both the elderly person and their caregivers with the guidance of an attorney require adequate planning for such events and deciding on the future care plans for the elder person. Some of the vital factors to consider include;

Power of Attorney

These are legal powers given to the caregivers for a definite or indefinite period by the elderly person in the event they feel they are unable to handle their affairs. A power of attorney is given to the caregivers with the consideration that the elderly person is competent and understands their actions at the time. National Research Council (2003) asserts that the powers of attorney are valid only as long as the principal is competent. As long as the elderly person is responsible, they are allowed to alter or terminate the power of attorney as they wish at any time.

Durable Power of Attorney

In the event the elderly person is incapacitated, they require a durable power of attorney since a power of attorney becomes invalid. A durable power of attorney gives the caregiver fiduciary authority to act on behalf of the elderly person and in their best interest at all-time even after the elder person becomes incapacitated.

Guardianship

This is a legal mechanism whereby a court appoints a guardian for the elderly person once they are declared incompetent by the court to handle their affairs. Often referred to as conservatorship as it is used to protect the elder person’s affairs when they become incapacitated. The court transfers to the caregiver the responsibility for managing financial matters, medical decisions, and living arrangement of the more elderly person.

Life and Death Decisions

The elderly need to decide on the preference of life and after-death wishes while they are competent enough. These decisions include their preferred treatment, medical care, and guardian among others that need to be respected. The elderly are also advised to have a living will and or a health care power of attorney and medical directive prepared and signed. These serve to ensure that when the elder person is unable to take care of himself or herself, they are given the best possible attention. A living will serve as a statement of the wishes of the elderly person for their treatment while they are incapacitated (National Research Council, 2003). Similarly, the healthcare power of attorney acts to define the medical wishes of the elderly person.

Conclusion

The elderly in the U.S are a vulnerable population and require to be treated with dignity and respect in the society and accorded legal services to express their wishes and preferences at old age. Since the elderly are faced with conditions that make them at risk and unable to take good care of themselves, families and guardians need to be involved in ensuring their well-being. The healthcare services and caregiving facilities engaged in the rehabilitation of the elderly play an essential role in their welfare, and they need to offer quality services for the elderly to improve their health and safety. While legal representation is also crucial, it needs to be tailored towards the best interest of the elderly and respect their wishes and desires. Incapacitation of the elderly should not be an excuse for not providing the best quality of life for them as it has been the case in most eldercare facilities. The elderly just like the rest of the populace have equal rights and should be respected.

References

Aka, P. C., Deason, L. M., & Hammond, A. (2011). Political Factors and Enforcement of the Nursing Home Regulatory Regime. JL & Health, 24, 1.

Chan, R. C., Shum, D., Toulopoulou, T., & Chen, E. Y. (2008). Assessment of executive functions: Review of instruments and identification of critical issues. Archives of clinical neuropsychology, 23(2), 201-216.

Detering, K. M., Hancock, A. D., Reade, M. C., & Silvester, W. (2010). The impact of advance care planning on end of life care in elderly patients: randomised controlled trial. Bmj, 340, c1345.

Giroux, D., Tétreault, S., & Landry, M. P. (2015). Evaluating Adult’s Competency: Application of the Competency Assessment Process. International Journal of Alzheimer’s Disease, 2015.

Mason, A. T., & Stephenson, G. (2015). American constitutional law: introductory essays and selected cases. Routledge.

Mollot, R. (2014). Government Must Enforce Standards for Elder Care - NYTimes.com. Nytimes.com. Retrieved 13 November 2017, from https://www.nytimes.com/roomfordebate/2014/09/25/finding-humane-care-at-the-end-of- life/government-must-enforce-standards-for-elder-care

National Research Council. (2003). Elder mistreatment: Abuse, neglect, and exploitation in an aging America. National Academies Press.