Originally published January 15, 2015 in the Bar Bulletin, a publication of the Maryland State Bar Association, Inc.
According to U.S government statistics, one in four adults age 55 and over currently experiences behavioral health disorders that are not part of the normal aging process. These disorders include mental illness, substance use disorders, dementia, and traumatic brain injury. Moreover, as the Baby Boomers age, the Institute of Medicine projects that by 2030 the number of older people with mental health and substance use conditions will increase by 80 percent.
As attorneys, we have a responsibility to help our clients address and plan for these issues. This article outlines how attorneys can: (1) increase the effectiveness of advance planning for individuals with behavioral health disorders; (2) recognize and address the challenges of older adults with behavioral health issues who also need long-term care; and (3) maximize the ability of clients who may have diminished capacity to participate in their legal matters.
Advance Directive for Mental Health Treatment
Advance directives are a tool that attorneys commonly use to ensure their clients’ end-of-life wishes will be carried out to the greatest extent possible. However, advance directives are not limited to end-of-life treatment. An advance directive for mental health treatment allows people with mental illness to identify their treatment preferences if they are unable to assist in their health care treatment due to psychiatric or physical illness. Such advance directives allow individuals to appoint a health care agent for mental health decisions and/or to express their preferences regarding medications and release of mental health records, as well as their willingness to receive services outside of a hospital setting. These documents are particularly useful for individuals in recovery or whose conditions have stabilized, but want to plan for any return of their symptoms.
The advance directive for mental health treatment supplements a traditional advance directive, which usually only includes treatment preferences for end-of-life care. Mental health advance directive FAQs, presentations, and a template from the Mental Health Association of Maryland, produced with the Maryland Department of Health and Mental Hygiene, may be found here.
Challenges for Individuals Who Need Long-Term Care
The behavioral health needs of older adults and persons with disabilities are often left unaddressed and unresolved by nursing facilities. Residents may be blamed for actions that are, in fact, symptoms of their medical conditions, such as verbal or physical outbursts, wandering or drug-seeking behaviors. The lack of adequate behavioral health treatment can result in residents being discharged involuntarily or hospitalized inappropriately, and then refused readmission because of their behavioral challenges. These residents bounce from facility to facility (often spiraling downward in quality), until they have nowhere left to turn.
Attorneys working with such residents should be diligent to ensure that any behavioral health issues are identified early on and treated appropriately, as required by the Residents Bill of Rights. This may require seeking out: (1) placement in nursing facilities that have the capacity to provide adequate behavioral health services; (2) improvements in behavioral health services in their current nursing facility or through a new facility; (3) opportunities to transition to living in the community, with appropriate long-term services and supports; such as those available from Medicaid in the Home and Community-Based Options Waiver and/or the Community First Choice program; and (4) representation to maintain new or continued Medicaid coverage of long-term services and supports.
Strategies to Maximize Capacity for Clients with Diminished Capacity
Clients with behavioral health challenges, particularly those with dementia or Alzheimer’s disease, may have diminished capacity for legal decision-making. However, capacity is not an on/off switch, and clients may be able to make certain legal decisions, or participate in those decisions, even when capacity is diminished. The Rules of Professional Conduct, particularly Rule 1.14, require attorneys to maintain a normal attorney-client relationship to the greatest extent possible. But how can attorneys maximize their clients’ ability to participate in that relationship?
First, forming a trusting relationship with the client will increase that client’s ability to work with the attorney. Interviewing the client without family members present will help develop a personal relationship with the attorney, maintain confidentiality, and help the attorney assess client capacity. Second, accommodate any physical health needs: minimize background noise when speaking with hard-of-hearing clients, and increase lighting and have large-print materials available for clients with low-vision. For clients who may have cognitive impairment, ask shorter questions, and allow sufficient time for responses. You may choose to conduct several shorter interviews instead of one longer one, and check in with the client to see what time of day is best for them. For older adults who experience “sundowning” (cognitive decline in the evening), a morning appointment may be best. Others may prefer midday, either before or after taking medications, depending on those medications’ side effects. The American Bar Association Commission on Law and Aging and the American Psychological Association publication Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers suggest additional strategies and tips for assessing capacity.
By helping older adults and persons with disabilities plan for and address behavioral health issues, you can ensure that your clients receive the most appropriate care and treatment in a manner that is consistent with their dignity and maximizes their autonomy.
Jennifer Goldberg is the Director of Advocacy for Elder Law and Health Care at Maryland Legal Aid.