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Advanced Directives for Dementia Patients (2022 Elder Law Institute Session)


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  • Level:Intermediate
  • Topics:Elder Law

$79.00 ["ProPass"]

Overview

OLDER PROPLE ARE ASKING IF THEY CAN DIRECT THE WITHHOLDING OF NATURAL FEEDING IN AN ADVANCE DIRECTIVE.  CAN WE ANSWER THE QUESTION?
After 50 years of court decisions and state legislation, advance directives are recognized as a tool for individuals to express their wishes regarding health care in later life when they are unable to speak for themselves, including decisions that will hasten death.  But serious problems remain:

  • There is uncertainty about the level of capacity required to execute advance directives
  • Health care providers frequently do not honor patient directions
  • The courts have not held refusing physicians liable for their failure to honor patient choice, but this may be changing

Advance refusal of nutrition and hydration provided by NG tubes and PEGs has come to be widely accepted. But the legality of patient refusal of natural feeding expressed in an advance directive, particularly those with advanced dementia,  remains undecided, even though in most states voluntarily stopping eating and drinking – “VSED”  – by patients with capacity is not illegal.  A new form of advance directive for dementia patients is being offered by some not-for-profit organization and attorneys.

Opponents of allowing patients to refuse natural feeding argue that natural feeding is not medical treatment and therefore cannot be refused. Further, they say that such wishes expressed at an earlier time by the “old self” must be re-considered in the context of the “new self” and treating physicians  must consider and evaluate new facts and should be allowed to disregard the advance directive signed by the “old self.”

Mr. Strauss will discuss a new form of advance directive regarding natural feeding that some attorneys are offering to clients as part of his presentation as well as the other topics mentioned above.  

Recorded at the Elder Law Institute in July 2022.

   

Faculty

Peter Strauss Esq.

Peter Strauss has practiced trusts and estate law since 1961 and has special expertise in the legal problems of aging and persons with disabilities, end of life issues and the capacity of persons with disabilities to execute legal documents with respect to health care. He is a founding member of the National Academy of Elder Law Attorneys, a Fellow of the American Academy of Trust and Estate Counsel (ACTEC) and Distinguished Adjunct Professor of Law at the New York Law School, where he teaches Elder Law and is director of the Guardianship Clinic. Mr. Strauss is the recipient of the New York State Bar Association “2019 Attorney Professionalism Award,” given to one attorney in the State each year. In May, 2022, he was given the Theresa Award by the National Academy of Elder Law Attorneys (NAELA) for his contributions to NAELA and the field of elder law.  Mr. Strauss was a founding member of NAELA in 1988 and was elected in  its first class of four Fellows n 1990.  He has been honored from 2007 to 2019 as one of the New York Metropolitan area’s “Best Lawyers,” and “Super Lawyer” from 2007 to 2016. Mr. Strauss is a prolific author and has written articles for various publications including the New York Law Journal and Bottom Line Personal and has addressed many national professional and consumer organizations. He is the author of the consumer book, “The Complete Retirement Survival Guide: Everything You Need to Know to Safeguard Your Money, Your Health and Your Independence,” (Facts-on-File, Inc. 2003). Mr. Strauss presently serves on the Executive Committee of the Elder Law & Special Needs Section of the New York State Bar Association, the Board of Directors of End of Life Choices New York and JALBCA (Judges & Lawyers Breast Cancer Alert) and the Steering Committee of the Louis Armstrong Center for Music and Medicine.


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