Category Archives: Legal

Healthcare Decision Rights of a Fiancé or Significant Other Under Pennsylvania Law

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This  post comes as a result of a question posted on Avvo. The question went something like this…”My fiancé of two years had a massive stroke and his family won’t let me see him. We live together and share household expenses we’ve lived in the home for two years. Since his stroke, his children will not allow me to contact with him, but last I saw him I was told by him he was coming home and to take care of the home. There is no POA that I know of. What are my rights?”

Answer:

Whether or not your fiancé has a Power of Attorney is not as important as whether he has an Advance Medical Directive;  the latter document controls health care decisions.

You do in fact have rights, but having your rights recognized may involve the cost and time of filing a petition in court. It is possible that your fiancé’s health care facility is not aware of the hierarchy of individuals who may step in as a “Health Care Representative” and you should talk to them first.

Section 5461 of Title 20 of Pennsylvania law explains the hierarchy. Although a spouse, children, sibling or grandchildren would normally have precedence over an unrelated individual, Section 5461(e) states that “… Upon the petition of any member of the classes set forth in subsection (d) of the law, the court may disqualify for cause shown, an individual otherwise eligible to serve as a health care representative.”

Section 5461(d)(vi) would make you an eligible candidate to be the health care representative. That section states that a “Health Care Representative” may be “An adult who has knowledge

Call to Action to Preserve the Medical Expense Tax Deduction

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The National Academy of Elder Attorneys is working with AARP and a few other organizations to prevent the proposed elimination of the medical expense deduction in the new tax bill before Congress.

Unlike other deductions, there is no organized group designed to protect the medical expense deduction (e.g. realtors always organize to protect the home mortgage interest deduction).

I am also an accountant and I sometimes helped other accountants prepare tax returns during “tax season.” I personally know that then they raised the threshold for the medical deduction from 3% to 10% of AGI, they cut off nearly everyone except those who had a catastrophic medical emergency.

While this deduction doesn’t affect lawyers in any way, the medical expense deduction affects many on this list who provide LTC and services for seniors or the disabled.

For the full story from National Academy of Elder Law Attorneys, follow this link.

Bob Gasparro, Esq.

 

A Primer on Pennsylvania Courts Before Next Week’s Elections

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We’re approaching the November elections, and we are expected to vote for judges whose decisions will have a very profound impact on our professions and personal lives. I recall that before I was an attorney, I was clueless about the court system, and judges in general.

Here is a primer on the Pennsylvania court system. You start a case with a trial or hearing. If it is a hearing with a government agency it is at an administrative hearing. Private matters are heard in the county court, in one of our 67 counties.

Then any party has an automatic right of appeal into either the Superior Court or the Commonwealth Court if they feel an error was made in the lower court. Since the laws get more complicated from year to year, it becomes easier to find grounds for appeal.

When you appeal, you go to either the Superior Court or the Commonwealth Court? What determines which?

That depends on the type of case that you had in the lower court. If you were involved in a negligence case, a breach of contract case, a criminal, family law or a Will contest, then the appeal is to the Pennsylvania Superior Court.

If you were involved in a case with a government agency such as a zoning dispute, a dispute over a citation from DHS or a citation from the Dept. of Nursing, Dept. of Transportation, Revenue, etc, then the appeal is to the Commonwealth Court.

Importantly, although there may be nine judges on both the Superior and Commonwealth Courts, each case is heard by a panel of three judges. This may occasionally result in inconsistent opinions between different panels. These conflicting decisions are heard by the Pennsylvania Supreme Court.

You do not have an automatic right to appeal to the Pennsylvania Supreme Court. Like the U.S. Supreme Court, it decides which cases it wants to hear. They decide what they consider important issues, and they resolve any inconsistent decisions from the two lower courts.

To find out what spots are up for re-election, go here.

Category: Laws

Author: Bob Gasparro, Esq.

 

Pennsylvania Voters Face Important Judicial Elections

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Note: I am not endorsing any candidate, just explaining how the system works.

Few Pennsylvania voters are familiar with the judges up for election in a few weeks, right? Even though the outcome of the elections will influence government’s control over us for many years, few know how to begin to evaluate the candidates, right?

Since so few people understand the qualifications of the Pennsylvania candidates, and they need to raise money to get re-elected, there is a move to have judges appointed rather than elected. The counter-argument is that if a judge is appointed for life, it’s too easy for that individual, over time, to lose touch with those who are served, with no way to remove the judge. An election every ten years provides an opportunity for voters to re-assess whether a judge should serve another term. Pennsylvania has tried several different methods since 1776.

One important upcoming election is for Judge of the Pennsylvania Supreme Court.  For example, Judge Saylor is one candidate up for re-election. The way it works in Pennsylvania is that over half the votes cast must choose “yes” to retain Judge Saylor another ten years. If they do not, and most choose “no” not to retain him, the governor appoints a temporary replacement, with a later election to fill the vacancy. Since Judge Saylor has served on the PA Supreme Court longer than anyone else, he is the Chief Justice.

How can the average voter collect information about him or any other judge?  One source is Ballotpedia:

https://ballotpedia.org/Thomas_Saylor

https://ballotpedia.org/Pennsylvania_Supreme_Court_elections,_2017

Another source is to check the votes that came in from attorneys from the local bar association or check your local political party, including your local committee person. The last place source of information to make a decision is what is said in a radio, television or Facebook ad.

If you have any insight about the upcoming Pennsylvania judicial elections, write a comment below.

Pennsylvania’s new “Right to Try” law for Hospice Patients

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Governor Wolf signed legislation that gives terminally ill patients the right to try experimental treatments, such as investigational drugs, biological products, and medical devices, not yet fully approved by the FDA.

Pennsylvania House Bill 45 of the 2017-2018 session, was introduced by Representative Bob Godshall, who himself had the opportunity to use an experimental drug. His account appears here.  The bill passed unanimously by both the House and Senate.

Eligible patients are those with a terminal illness attested to by their treating physician, unable to participate in a clinical trial, who have a recommendation from their physician to try the investigational product, and have given full informed consent.

The law also gives health care providers immunity when recommending the use of an investigational product and protects them from professional licensure sanctions. Health Care workers are defined by this law as licensed health care facility, or a person who is licensed, certified or otherwise regulated to provide health care services under the laws of this Commonwealth, including, but not limited to, a physician, a certified nurse practitioner or a physician’s assistant.

Thirty-seven other states have laws similar to Pennsylvania’s.

The law does not provide for health care coverage for those participating in the experimental treatments, but a manufacturer may elect to provide them to an eligible patient without receiving compensation. To be eligible, the patient may not be treated as an inpatient at any hospital.

Section 3 (1)(v) of the law expands the definition of a “patient” to include parents of a minor and Health Care Representatives or Agents under an Advance Health Care Directive.  However, the law seems to expand the “due diligence requirements” of those persons before giving approval.

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Questions for discussion: Can any of the hospice workers/ physicians / or others on this list give insight as to:

Has anyone ever obtained FDA approval under a compassionate-use application for an experimental drug? What was it?

This post is filed under Legal Concerns (laws) affecting seniors.