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For supporters of MAID, allowing terminally ill patients the choice to have “death with dignity” is the humane and compassionate thing to do. On the other hand, some medical professionals view participation in MAID as a violation of their ethical responsibility to “do no harm.”

 

On April 12, 2019,  Governor Murphy of New Jersey signed into law the “Medical Aid in Dying for the Terminally Ill Act.” The law, which originally took effect on Aug. 1, 2019, established New Jersey as the eighth state to allow qualified terminally ill patients the option to request and self-administer lethal prescription drugs to “end their lives peacefully, with dignity, and at their own discretion.” (State of New Jersey Press Release, April 12, 2019).

A patient interested in undergoing medical aid in dying (“MAID”) must satisfy specific statutory requirements in order to be eligible. First, the patient must make a series of three statutorily required requests for the lethal medication. Two of the requests must be made orally to the patient’s attending physician at least 15 days apart, and the third request must be made in writing. The written requests must be witnessed by at least two people in the patient’s presence who can attest that the patient is capable and acting voluntarily.

In addition to making the requests, the patient must be found to be a qualified terminally-ill patient. In order to be a “qualified” terminally-ill patient, an attending physician must determine that the patient is:

  1. An adult resident of New Jersey,
  2. Capable,
  3. Terminally ill with a life expectancy of less than six months, and
  4. The patient must have voluntarily expressed a wish to receive a prescription for lethal medication.

If the attending physician finds the patient meets the above requirements, they must then refer the patient to a consulting physician to confirm their findings. If either the attending or consulting physician determines that the patient is not capable of making their own health-care decisions, the patient must be referred to a mental health-care professional. In that case, no lethal medication can be prescribed until the attending physician receives a written determination from the mental health-care professional that the patient is capable.

While many refer to “medical aid in dying” as physician assisted suicide or euthanasia, the Act explicitly states that the provisions of this Act “shall not constitute … suicide, assisted suicide, [or] mercy killing … under any law of this State.” (Medical Aid in Dying for the Terminally Ill Act). This creates a situation where you have a doctor advising about lethal medication, prescribing that lethal medication, and a patient self-administering lethal medication, yet it is not “suicide” or “assisting suicide” under the law of New Jersey. Instead, the Act provides that its provisions are to be considered “medical aid in the dying process.” N.J. P.L. 2019, c.59.

Other states have also grappled with making a distinction between assisted suicide and medical aid in dying. For example, in examining a statute that was very similar to New Jersey’s, the Montana supreme court articulated that patients were not seeking to commit suicide “[r]ather, they acknowledge that death within a relatively short time is inescapable because of their illness or disease. And with that fact in mind … they simply ask the government not to force them to suffer and die in an agonizing, degrading, humiliating, and undignified manner.” Baxter v. Montana, 224 P.3d 1211,1226 (2009).

Supporters of the Act contend that medical aid in dying allows patients who are already dying from a terminal illness to pass away in a manner of their choosing—instead of dragging out the inevitable while they are left to suffer. Steve Sweeney, the president of the New Jersey Senate, stated that the Act “provides a humane choice for terminally-ill patients who are experiencing tremendous suffering and pain. It offers the freedom of choice for those with no hope of surviving beyond six months to end their suffering in a dignified way.” State of New Jersey Press Releases, April 12, 2019.

Jessica Guenzel, a resident of Rutherford, New Jersey, voiced her support for the Bill after watching her mother suffer from a “horrible, drawn-out death. She [her mother] lost all of her dignity, all of her happiness. Everything hurt and we knew she was dying and all that we could do was sit there and wait while she begged for relief.” State of New Jersey Press Releases, April 12, 2019. Support for MAID seems to be growing as a May 2018 Gallup Poll showed that 72% of Americans believe that “doctors should be legally allowed, at a patient’s and a family’s request, to end a terminally ill patient’s life using painless means.”

While support may be growing for MAID, many people remain vehemently opposed to MAID. Sarah Steele, was told that most people with her prognosis only have three years to live, but that she has survived for 13 years. Her fear is that “a doctor’s ‘educated guess’ could be wrong, which means people may be throwing away years or even decades of their life.” (“Doctor-assisted suicide in New Jersey,” Wilson-Glover, 2019). Also opposed is Dr. Yosef Glassman, a physician who filed a lawsuit seeking to block the law from implementation. 

For those medical professionals opposed to participating in MAID, this isn’t just a political question, but it is something that strikes at the very core of what it means to be a healer. Glassman based his suit, in part, on the requirement that a physician who does not wish to participate in MAID must still refer that patient and transfer the patient’s records to a physician who is willing to participate in MAID. Glassman argued that the act of transferring the records and referring the patient to another doctor was tantamount to participation, and, in his view, this would make him complicit in something he viewed as both unethical and immoral. Glassman v. Grewal, 2019. Glassman further argued that participation in MAID violates his faith and his “oath as a doctor” which prohibits him from assisting in a “murder.” (Susan Livio, “Doctor tells judge N.J.’s new right-to-die law is murder,” 2019).

Initially, a New Jersey trial court ordered a preliminary injunction that blocked implementation of the law until after Glassman’s legal challenges could be decided on the merits. However, an appellate court disagreed, and the Supreme Court of New Jersey issued an order denying Glassman’s request for relief on Aug. 27, 2019. Order on Emergent Motion, Glassman v. Grewal, No. AM-000707-18T3 (N.J. Aug. 27, 2019). The court’s decision to deny the preliminary injunction allowed implementation of the law to continue, but it did not address the underlying merits of the case. The merits of the case are being decided in Mercer County Superior Court where Glassman and three other plaintiffs have challenged MAID.

While the medical community has moved forward with implementation of MAID, the courts of New Jersey are still grappling with Glassman’s underlying legal challenge. Most outlets seem to suggest that since the Supreme Court of New Jersey denied Glassman’s request for relief on the temporary injunction, the case is all but over; however, the reality is that until the merits of the case are decided by the court, this case is still ongoing—no matter how unlikely Glassman is to be successful. Susan Livio, 2019.

For both sides of MAID, the stakes couldn’t be higher. On one hand, you have terminally ill people who are suffering excruciating pain, and at times humiliation, as they wait for their imminent death. For supporters of MAID, allowing those suffering from terminal illness the choice to have “death with dignity” is the humane and compassionate thing to do. On the other hand, you have medical professionals who may view participation in MAID as a violation of their ethical responsibility to “do no harm.” For some, they may also view participation in MAID as a violation of their sincerely held religious beliefs or personal ethics. In either case, for medical professionals who do not wish to participate in MAID, the crux of the issue seems to hinge on whether transferring a patient’s medical files equates to participation.

Justin L. Scott serves as principal attorney for Cherry Hill elder care firm Scott Counsel, PC. 

 

When a married couple applies for Medicaid, assets are either exempt or countable towards the Medicaid eligibility limit. Exempt assets usually include the residence, when a spouse or certain other family members are living there, one automobile, furniture, clothing, etc., Typically, when one spouse is in a nursing home and the other spouse is living at their residence, the residence is exempt for Medicaid eligibility purposes. This would mean the spouse could keep living in the house and it would not negatively impact the other spouse’s Medicaid eligibility.

However, sometimes the title to the residence is not in the name of either spouse. For example, the home could be “owned” by a trust that the married couple established. In this case, it is possible that the home will not be exempted for Medicaid eligibility because it is not owned by either spouse. For example, a federal court decided that it was improper when a married couple set up a trust to have ownership of the residence at the time of the Medicaid resource assessment, when the ownership could shift back to the couple. As a result, the residence was not exempt for Medicaid eligibility because it was not owned by either spouse at the time, and the couple was penalized for Medicaid eligibility.

If you are in a situation or considering a situation where a trust would own your residence, or if you are considering transferring ownership to your residence to someone else, it is very important that you contact an elder law attorney beforehand. Transferring title to property prior to getting Medicaid may result in a Medicaid penalty if they find that you transferred it for less than fair market value. As you can see, title and ownership transfer can be a very sticky subject when you are trying to qualify for Medicaid. Make sure to talk to a professional to help keep your Medicaid eligibility on track.

Agent Orange was an herbicide used to clear plants and trees during the Vietnam War Era. Agent Orange was also used near the Korean DMZ and in certain related jobs during the Vietnam War era. Veterans who were exposed to Agent Orange and have developed a medical issue that is on the VA list of medical conditions associated with Agent Orange may be entitled to extensive financial compensation.

Many veterans may not realize that they are eligible for this benefit because over the years the VA has expanded the list of medical conditions that are now associated with Agent Orange exposure. The medical issues on the VA’s Agent Orange list include:

  • AL amyloidosis
  • chloracne, early-onset
  • chronic B-cell leukemia
  • Hodgkin’s disease
  • ischemic heart disease
  • lung and trachea cancers
  • multiple myeloma
  • non-Hodgkin’s lymphoma
  • Parkinson’s Disease
  • peripheral neuropathy
  • porphyria cutanea tarda
  • prostate cancer
  • soft tissue sarcomas, and
  • type 2 diabetes

If a veteran develops one of the above diseases and served in Vietnam between 1962 and 1975 or in the Korean DMZ between 1968 and 1971, then the VA will presume the disease is a result of exposure to agent orange. This can make it much easier to get disability compensation from the VA.

Benefits that a veteran could receive include health care benefits, financial compensation, and an Agent Orange Registry health exam. If you think you may fall under the category of veterans who developed a disease as a result of Agent Orange exposure then you would need to file a claim for disability compensation and submit you supporting documents to be used as evidence. If you have any questions about this process you can reach out to a VA attorney or similar professional and have them assist you with your claim.

Like always, if you have any questions or would like to explore your eligibility for these programs or any other Elder Care law issues, call 856-281-3131. We’d be glad to help ease your stress and form the plan that is right for you.

You may have heard of “improved pension”, “VA assisted living benefit”, or “veterans elder care benefits” that can be used to increase your pension. These are each names for the Aid and Attendance benefit that we discuss in detail in a separate article. In short, Aid and Attendance is a financial benefit that can help eligible veterans who have difficulty with routine daily activities, such as bathing, eating, dressing, and medication management. For eligible veterans, Aid and Attendance provides an additional financial benefit that is meant to help cover the financial cost of assistance with those routine daily activities.

There is also a benefit called the Housebound Pension, which is for veterans who are substantially confined to their home because of a permanent disability. The housebound pension would be added as an additional financial benefit to the veteran’s existing pension. However, a veteran cannot receive both the aid and attendance and the housebound benefit. Instead, it is one or the other.

If you have any questions or would like to explore your eligibility for these programs or any other Elder Care law issues,
call 856-281-3131. We’d be glad to help you form the plan that is right for you.
 

Aid and Attendance is also referred to as “improved pension”, “veterans elder care benefits”, and “VA assisted living benefit”. Each of these terms typically refers to the “Aid and Attendance benefit.”

Aid and Attendance is a government benefit for veterans and their spouses who require assistance from another person in order to perform routine daily activities. These activities may include eating, bathing, dressing, grooming, medication or assistance with adjusting prosthetics, among other things. Aid and Attendance is only available to those who are eligible for or who have a VA pension.

If you qualify, Aid and Attendance will provide monetary compensation in addition to your standard VA pension benefits. These benefits are meant to help cover the financial cost of having someone to assist with your routine daily living activities. The benefit may be used to help cover the costs of assistance in routine daily living activities for veterans who are in-home and those that may be in a facility.

To receive this nontaxable benefit, there are specific eligibility and financial requirements that must be met. If you think you may qualify, then talk to an elder law and VA attorney in order to explore your eligibility.