Posted by: Matthew Frere & Kelly Frere on Jun 1, 2020

Journal Issue Date: June 2020

Journal Name: Vol. 56 No. 6

There’s a game that was created in 2015 called “Pandemic: State of Emergency.” It’s one in the game series “Pandemic,” and an expansion to the game was quickly released March 20, 2020. According to the game manufacturer the game is suitable for ages 13 to 15, and an entire game can be completed in 45 minutes.1

Who knew that for $44.93 on Amazon you could save the world from COVID-19? But COVID-19 is not a game, although many of the rules that now apply to the practice of law and how we represent seniors have rapidly, and in some case probably permanently, changed the way attorneys in all states practice elder law. And, to those attorneys who focus on other areas of the law, the specific references made during this crisis to the protection of elderly persons may have raised the question: What’s so different about elderly persons that they are quickly identified during a state of emergency as a class of clients that are to be given special consideration?

On March 13, 2020, FEMA released the COVID-19 Emergency Declaration to apply to all states, tribes, territories and the District of Columbia.2 The Supreme Court of Tennessee, through Order No. ADM2020-0048 entered on March 13, 2020, notified all legal practitioners of a judicial state of emergency and set forth rules and exceptions under which we were to practice during the crisis period. That order has been amended, and will probably be amended again numerous times, before some state of “new normal” settles in.

States of emergency can arise out of any expected or unexpected disaster. While the COVID-19 pandemic is our current crisis, it is not our country’s first pandemic. It is certainly not the first time that seniors, as a class, suffered great harm as a result of weather, political unrest, economic turns, strikes, loss of readily available health care — the list is great given the fact that seniors are impacted by nearly every facet of human existence.

In 2005 Hurricane Katrina decimated the Gulf Coast region. Hurricanes are such common occurrences in the gulf that one of the most difficult tasks faced by first responders is getting long-term residents, especially the elderly, to evacuate. (It can even be argued that the levee breach that resulted in devastating flooding in New Orleans could have been anticipated.3) In St. Bernard Parish, just outside of New Orleans,4 35 residents of a nursing home drowned as the flood waters poured in faster than the residents could be evacuated. Criminal charges were pursued against the facility owners, but they were ultimately acquitted.5

There are numerous long-term care facilities across the state of Tennessee in which elderly residents are housed, bed-bound, above the first floor. Are the designers, builders and owners of such facilities so poorly informed — or, uncaring — as to create an environment in which there is no escape for such residents in the event of a fire or other sudden disaster? We routinely give clients our opinions regarding certain long-term care facilities by prefacing our recommendation with, “This one is a good facility — as long as your loved one has a room on the first floor.”

Because we are focused on seniors as a client class, we always read through legal directives, journal articles, proposed statutes, rules and regulations with at least one eye searching for the word “elderly” or “seniors,” or the phrases “persons at risk” or “protected class.” Going into this pandemic Tennessee already had an admirable history of creating rules, policies, statutes and guidelines specifically for the protection of elderly persons The recent orders from the Supreme Court of Tennessee did not disappoint in acknowledging those protections. Because of Tennessee’s positive history in protecting seniors there is no reason to doubt that seniors will continue as a protected class.

While some of you may believe that the phrase of the court, “Proceedings related to emergency protection of elderly or vulnerable persons” was too vague and lacking in guidance as to the definition of what qualifies as an emergency, we were actually very pleased to see the simple but forthright statement that was made. Its definition should be broad and all-encompassing, allowing you to turn to whatever Title in the Tenn. Code Ann. you need in order to protect your elderly client from threat of immediate financial, physical, emotional and/or mental harm — whether that threat is made by another person, facility or organization, or arises out of your client’s own choices and behavior, or even arises out of the failure or refusal of an act that would have provided protection. The harm could come from persons, even legally appointed fiduciaries, who seize the opportunity of a senior’s forced isolation in a facility (or, self-quarantining at home) to gain access to the senior’s assets “out in the real world” for nefarious deeds. Seniors who are not computer savvy and have no easy access to personal information cannot, during this state of emergency, count on access by family caregivers to visit to review bills, write checks and conduct other forms of business that are routinely done during typical visits. Personal and direct access formerly had by lay advocates to health care providers is reduced or terminated altogether during this crisis while those providers, often stretched to their limits, need to devote time to the protection and needs of the many, with little time to anticipate the specific needs and vulnerabilities of the individuals
in their care. 

Most long-term care facilities, whether they be senior living apartments (which are typically very accessible without front door monitoring) — or homes for the aged, assisted living facilities, memory care facilities or nursing homes — have, in our opinion, quickly and competently implemented and followed an entirely new world of caregiving rules. Policies have changed with lightning speed, and professional caregivers have adapted remarkably well as circumstances change not only from day-to-day, but sometimes from hour-to-hour. 

The failure has been that many of the new protections should already have been in place. What the facilities have not been able to do is to assist with a resident’s finances, provide oversight as to how assets have been affected by the tumultuous stock market, alert the senior as to the numerous new Medicare directives that have been issued that are, without exception, presented as being positive protections during this pandemic but are really cloaks for additional burdens placed on benefits recipients.6 They also cannot assist the senior with the creation and signing of documents such as Wills, Powers of Attorney, Living Wills, and other documents that are needed to assist the senior during times of isolation, and during times that may accelerate the end of life.

But here’s the good news. Actual access to the senior can be yours if your client has a need for your counsel to sign these very important documents, or to provide important information, or to monitor their health and well-being, or to ascertain their mental capacity to make sure that they are not being harmed in any fashion, thereby requiring your intervention. We have long encouraged family, friends, religious and spiritual advisors, and social workers to be on one team providing oversight and assistance to the senior, while also respecting that senior’s independence and dignity. During times like these, when states of emergency result in lock-downs for our clients, you are their advocate, their legal counsel, the one who monitors their care, and their connection to life outside of their isolated environment. 

If you see the need for protection for your elderly client, then follow the safety guidelines currently in place at their location of care (a facility in which they are residing, or perhaps in their home under a monitored program of some type), identify yourself as their legal counsel and that you are present to protect your client. Present yourself to your client, keep a safe distance, don’t linger, recognize that even the Patient’s Bill of Rights found on the wall of every health care provider may not apply in a state of emergency, and leave knowing that the protections you offer your client should — and will — survive any state of emergency. 

MATT and KELLY FRERE are husband/wife partners in the Elder Law firm Guyton & Frere in Lenoir City. They are members of the Council of Advanced Practitioners of NAELA. Matt was Tennessee’s first certified Elder Law attorney.



NOTES

1. https://boardgamegeek.com/boardgame/168703/pandemicstateemergency.

2. https://www.fema.gov/newsrelease/2020/03/13/covid19emergencydeclaration.

3. Kelly spent many summers visiting with her grandmother in New Orleans. She was advised by her parents, “If it ever rains at least three days straight without letup then take your grandmother and run. Those levees won’t hold.”

4. www.nbcnews.com/id/20649744.

5. Just to get started, review §39-15-510, 511; §63-1-149; §68-11-271; §71-2-113; and §71-6-122, 126.

6. One example of self-inflicted harm that could result in an emergency is the recent change in Medicare rules that imposes an obligation on the patient to set up appointments with their doctor remotely and if that is not attempted to be done Medicare will not cover the cost of the doctor’s appointment. It is our experience that most seniors do not even know of this obligation and their responsibilities under it. Another release suspends the minimum “3-day rule” for a Medicare enrollee to transfer from a hospital to a nursing facility in a manner that assures Medicare coverage. While this change in benefits eligibility appears to be less burdensome on the senior, the result can actually be disastrous. Most nursing facilities have not been able to accept new residents, either because of virus concerns or lack of required protective gear for staff. Where is the senior to go?