Potential New Legislation All Caregivers Should Know About

October 8, 2015

As we age and find ourselves in need of care or representation, most of us envision the ideal scenario where our children or loved ones coordinate to develop the most effective care plan, arrange for visits and cooperate to keep us as comfortable as possible. Unfortunately family dynamics often aren’t ideal or change over time, resulting in decisions that aren’t necessarily reflective of our interests. Interactions can sometimes become combative.

Recent examples of this turmoil in celebrity families have brought more attention to this issue and even prompted potential new legislation. Catherine Falk, daughter of Peter Falk, who played the stumbling, fumbling detective Colombo, had always maintained a very close relationship with her father. Ms. Falk felt she had a right to see her father while he battled Alzheimer’s disease in the last three years of his life. She and Falk’s second wife, Shera Falk, had a notoriously frosty relationship, however.

When Shera blocked Catherine’s efforts to see Peter Falk and failed to provide any updates regarding his condition, Catherine contested this through the court system. She quickly learned the California law favors spouses over children in power of attorney or conservatorship (guardianship) issues. Undeterred, she challenged her stepmother’s status as conservator and, after a lengthy and costly court battle, won court ordered access to visit her father. Despite this order, Shera Falk continued to make visitation difficult and did not notify Mr. Falk’s family of his hospitalization and eventual death in 2011.

After Falk’s passing, Catherine Falk and her lawyer decided to take up the cause of adult children who’ve been barred from visiting elderly, often ailing, parents by their representatives. Bill #AB1085, also known as “The Peter Falk Bill,” affords adult children more rights to visitation and information about ailing parents. While Catherine Falk’s goal targets Federal legislation in the long term, current efforts are focused at the state level. Currently, the bill is making its way through the California State Senate, and legal experts claim that if it passes, petitioners in other states would most likely use it as a model for their own legislation. While the dynamics of every family situation is different, cases such as Peter Falk’s and the thousands of other examples around the country clearly emphasize the need to state your wishes clearly prior to the event that you become incapacitated.

The importance of an Advance Directive

Have you ever thought of what you would want or who should represent your healthcare interests in the event you can’t make a decision for yourself? While a will covers how assets are divided when the elderly individual passes away, the

“Advance Directive” provides clarity regarding what measures you want taken and who you would like to act as your agent. The Advance Directive comes in many forms, most commonly as either a Healthcare Directive or Durable Power of Attorney for health care, or a combination of both.

The Healthcare Directive provides specific instructions regarding your wishes for treatment, physicians, emergency interventions, lifesaving measures, visitation preferences and who you would like to act as your health care agent. These measures are to be implemented when it’s determined you are incapable of making your own decisions regarding your care.

Another form of Advance Directive is the Durable Power of Attorney. This document allows you to designate someone to act as your health care representative both before and after you’re incapacitated. It allows your representative to make decisions in your interest regarding all aspects of your care, lifesaving measures and visitation. Some states combine both Healthcare Directive and Durable Power of Attorney into a single form.

Creating this document with the assistance of an elder law attorney while the senior remains healthy and lucid can help stave off the kind of legal battles that degrade the entire family or result in medical decisions the senior might not normally choose. When considering taking on a new client, the in home caregiver should know if an Advance Healthcare Directive exists, where a copy is and the name and contact information of the person designated as the agent or representative. In home caregivers are often called to testify in probate cases, after all. The more informed you are about what your loved one or client wants, the more you can protect their interests and expedite the process in the event there is a dispute.

The Impact of a Weak or Non-Existent Advance Healthcare Directive

If you haven’t already heard, throughout the nation there has been an increase in familial disputes regarding care, visitation and access to health information. Battles between children or loved ones prevented from seeing or getting updates regarding ailing parents have been particularly intense not only in the Peter Falk clan, but in the Glen Campbell, Kasey Kasem and BB King families as well. As in the Peter Falk case, these families were denied access to visitation and information regarding the health of their loved ones. Considering the contributions these icons made in our society, that their final days were spent with families in such turmoil is tragic. They’re a glimpse into what occurs in families throughout the nation.

Getting the Advance Directive Done

The simple fact is, regardless of age, any adult should consider developing an Advance Directive to protect our interests in the event of an emergency or decline in condition. Convincing an elderly loved one to create an Advance Healthcare Directive doesn’t have to be uncomfortable. Candidly discuss with them the importance of clarifying their wishes and who they would like to represent their interests to minimize family disagreements and strife. You can get legal forms for every state from The American Bar Association’s website. You may also want to explore further by reading AARP’s advance directives guide. The MyCareMatch.com team always recommends consulting with an elder law professional when developing any type of legal documentation.

Watch the headlines for “The Peter Falk Bill” as it progresses in ten states where it’s currently moving forward with bipartisan support. For more information regarding this effort you can visit the Catherine Falk Organization. As a trusted resource both for those seeking in home caregivers and those looking to join this noble profession, My Care Match stays up to date on legislative, health and many more practical senior issues. If you’re in need of home care providers or want to compare assisted living options, contact us with any questions you may have.

About the Author

Doug Breuer is co-founder of MyCareMatch.com and has worked in senior care for the last 9 years for the State of Oregon. From investigating cases of elder abuse to managing the delivery of long term care to residents of Central Oregon, Doug has been involved in all aspects of senior care.

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