DEAR READERS: In lieu of my regular Q & A legal column, this month I have been asked to comment on the new End of Life Option Act, recently signed by Governor Jerry Brown. Keep sending your questions to me via email, though, for future columns. This Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.
Options. I think we would all agree that our lives are richer with them than without them. Brittany Maynard, the 29-year old Californian who died from incurable brain cancer didn’t have many. So, she moved to Oregon where a doctor can legally prescribe a lethal dose of an aid-in-dying drug. Thanks to the brave efforts of Brittany, followed by the long and arduous battles by her champion parents and our elected officials, California has now joined Oregon, Washington, Vermont, New Mexico, and Montana in offering similar options to terminally ill adults.
On October 5, 2015, Governor Jerry Brown signed into law the “End of Life Option Act” (codified in Section 443 et. seq. of the CA Health and Safety Code). However, it may be as late as Fall 2016 before the law becomes effective because of the operative language in the law.
Already there are misconceptions about what this new law is…and is not. First, it is unfair to classify it as an “assisted suicide” law. There are no Dr. Kevorkian’s lethal injection chambers or the like. The 26 pages of the new law that I read and analyzed is very precise and measured, as it should be. Specific requirements must be met to trigger it, plus the patient and the doctors have to jump through many, many hoops. Below is a summary of the key components:
1. The Patient must be over 18 years, prove that they are a California resident, and have an incurable and irreversible disease with the life expectancy of six months or less.
2. Once the Patient determines that they wish to pursue a prescription for a “magic pill” or aid-in-dying drug, they must submit two oral requests (15 days apart) and one written request to their attending physician. The written request must be witnessed by two witnesses (only one witness can be related to the Patient).
3. Not only does the attending physician have to review and approve the request, but a second consulting physician must do the same.
- The attending physician and consulting physician must also complete separate forms, which are designed to motivate a discussion between the doctors and patient on specific issues, such as the Patient’s state of mind, the option to obtain the drug but not take it, the importance of securely storing the drug and having another person present upon ingestion, and the necessity to participate in feasible alternatives, such as hospice care, a palliative care program and pain control.
The new law also addresses “residual” impacts, such as: i) the Patient’s exercise of this option is not considered suicide and thus an insurer cannot deny life insurance benefits:; ii) reporting requirements by the attending physician to the State Department of Health; iii) exemption from civil or criminal liability of the person who may be present with the Patient at the time of death, as long as that person does not help the Patient ingest the lethal drug; and iv) mandatory reporting and posting of certain “vital statistics” by the State Department of Health on their Internet Web site, on or before July 1, 2017 and each year thereafter.
Indeed, there are many good souls in our community that lend a helping hand to our deserving seniors. But, as the saying goes, it takes one bad apple to spoil the entire bunch, right? Taking advantage of our elders is a nationwide, systemic issue. It takes many forms, for example, a scammer calling “grandma” insisting that she send money to bail her grandson from jail; a son who feels “entitled” to the family home, and thus persuades his parents to sign everything over to him.
“Elder abuse” is the legal jingle. The California Bar Association estimates that one out of every seven senior citizens fall victim to “elder abuse”—mostly by family members, sadly. Check out their free pamphlet which offers quick and easy tips on how to identify and minimize elder abuse. www.calbar.ca.gov/Public/Pamphlets/ElderAbuse.
Other practical tips come to mind:
Tip #1: Talk, Listen, and Plan:
As we wind down another year, now is a good time to talk to those you love and listen to their needs. Make sure they kick-start the New Year with a viable estate plan i.e. Will, Trust, Durable Power of Attorney, and Health Directive. Yes, you will likely have to hire an estate planning attorney for the preparation of the necessary legal documents. However, having an estate plan in place is key, especially as one ages and needs to rely on others. Consider appointing a private fiduciary as a neutral third party to oversee the estate plan. Our local Sonoma County Council on Aging oversees a fiduciary program. Contact Connie Aust at 707-525-0143, extension 108.
Tip #2: Reach out to Local Resources
The Sonoma County Family Justice Center has an “arm” that reaches out to elder abuse victims The Center is a “one-stop-shop” it offers insights and resources on a variety of issues, including elder abuse. An advocate from the Council on Aging is housed there as well. The Family Justice Center is located in Santa Rosa on Mendocino Avenue. Call 707-565-8255.
Tip #3: Call Adult Protective Services (APS)
APS offers a 24/7 phone line (707-565-5940) to assist it’s “target population” i.e. individuals over 65 . An intake will be conducted to identify the nature of the problem. Once the intake is completed and the problem(s) are identified, APS is will then send a social worker to the home within 10 days for a “face-to-face” voluntary meeting with the senior. The APS representative is professionally trained to recognize financial, physical, and emotional abuse by self or by others, but can only help if the senior is agreeable. The APS representative will complete a “Risk Assessment” to help determine the needs of the elder. In 2013, APS completed over 4,000 home visits/reports in Sonoma County. Check out APS’ website on resources: www.socoaaa.org.
Tip #4: Visit the Empire Law School Elder Law Clinic
Law students, under the direction of a licensed attorney, offer a walk-in Elder Law Clinic on Thursdays from approximately 4:00 to 6:00 pm at the Salvation Army Silvercrest Retirement Center, 1050 3rd Street, Santa Rosa.
My hope for you, Naysayer, is that the “good neighbor” is indeed stocking Uncle Rick’s fridge with healthy foods. Stay alert. Keep open communication with your Uncle. Let him know that if things go awry, laws are in place to protect him and local resources are nearby to help.
We need to honor our twilight years. We all hope to experience them. As Robert Frost quipped, “The afternoon knows what the morning never suspected”.
Debra A. Newby is a resident of Monte Rio and has practiced law for 32 years. She is a member of the California, Texas and Sonoma County Bar Associations. She maintains an active law office which emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (firstname.lastname@example.org), phone (707-526-7200), or fax (526-7202).