Introductions to the Problem

Dear Senator Laird,
Thank you for introducing legislation (SB240) to address the problem of elder abuse and neglect. I would like to interest you in sponsoring additional legislation in this area to address the needs described below.
Thank you for giving this your thoughtful consideration.
Sincerely,

Tom Fields
Mentor, Ohio
440/255-7693
______________________________

A simple introduction to the problem is provided by the following three brief points (with an emphasis on the first point)

----- Point #1 (The Problem) -----
Under normal circumstances, witnessing the signature of a document is little more than a formality. But under some circumstances, such as when someone signs a Will while morphine is being dripped into their veins under a Do Not Resuscitate order, witnessing a document needs to be much more than a formality. Unfortunately, it isn't, and that is one of the outstanding problems which lawmakers have failed to realistically address.

----- Point #2 (A Recommendation) -----
This problem is addressed by a recommendation that was proposed by the American Medical Association and is included on pages 5 and 6 of the Ohio Physicians Elder Abuse Prevention Project Report. Much of this report, including the important pages mentioned here, is copied online, beginning with the report's front cover at
http://home.roadrunner.com/~tvfields/OSMAReport/FramesetCoverA.htm

----- Point #3 (Another Recommendation) -----
This problem was also addressed at the White House Conference on Aging by a complementary proposal that is copied online at
http://home.roadrunner.com/~tvfields/2005WHCOAHandout/Frameset01.htm

Irene Massiello, author of Paradise Costs offers another simple introduction

If a senior citizen cannot explain the need and ramifications of any document whether it is a legal contract, a do not resuscitate order, a will, a power of attorney, a check, a bank transfer, stock sale, etc., the person that accepts the change may be an abuser or exploiter. A senior citizen who simply says, "yes," and agrees, stating they understand the document and/or the situation is NOT be considered to understand the situation or agreement unless they can explain what the paperwork, financial transaction, healthcare decision, etc., means, the reason for it, why it's needed in the way of actual effects now or the eventual outcome on their life. COACHING to obtain an answer from anyone in any form may be elder abuse.

These simple introductions are closely related. One way Irene's important point could be effectively addressed is to begin by identifying the various circumstances under which existing law presumes such a document is not valid. This provides the basis needed to identify seniors who are at risk of being exploited. For example, it is my understanding that the law presumes that such documents are invalid when signed by someone in my father's condition at the time he was exploited (just hours before he died and while morphine was being dripped into his veins under a Do Not Resuscitate order). In order to reliably address such circumstances, the law needs to differentiate them from other situations at the time they arise, long before they are brought before the court in what essentially amounts to a challenge of this presumption. In other words, such infirmities and vulnerabilities must be dealt with by demanding stricter safeguards at the time the important document is signed. What needs to be included in these stricter safeguards, who should be responsible for implementing them, and how should they be implemented? A requirement for the infirm individual to explain, without coaching, the need and ramifications of the document they sign, as Irene addresses, is certainly needed. But to whom should this explanation be given, how should it be solicited, and how should it be recorded? Should it be solicited by the beneficiary, the beneficiary's representative, or someone trying to do the beneficiary a favor, as Dr. Sonneborn testified regarding his connection to what took place at my father's bedside? Specific considerations of this kind need to be developed, a fact which seems to have been recognized two decades ago by those authorities who contributed to the American Medical Association recommendation that is linked above.

In summary, we need our laws to
(1) expressly identify/enumerate/list situations which give rise to a presumption of incapacity, negligence or wrongdoing, and then
(2) provide safeguards like those recommended above when these situations arise, long before they are brought before the court in what essentially amounts to a challenge of this presumption.

See:
Tougher Penalty for Elder Abuse

See also:
Irving Lincoln Fields