Anatomical Gift and Supported Decision Making Laws Featured in Ceremonial Bill Signing – Anatomical gift and supported decision making laws drew Governor Eric Holcomb’s praise at a signing ceremony for bills affecting those laws.
Governor Holcomb invited Hawkins Elder Law attorney Jeff R Hawkins and other stakeholder representatives to witness the Governor’s July 8 ceremonial signing of Senate Enrolled Act 112 (SEA 112) and Senate Enrolled Act 380 (SEA 380) at the Governor’s Residence. During the ceremony, the Governor recognized key legislators and advocates that had supported the pair of disability-friendly bills.
Supported Decision Making Legislation Inspiration
Supported decision making advocate Jamie Beck basked in Governor Holcomb’s praise for her adult guardianship reform advocacy. Ms. Beck work hard to gain legal and financial independence after a court appointed guardian to manage her personal and legal affairs. Hard work paid off with employment to help support her independence, but she wanted to help provide alternatives to guardianship for other disabled adults. She told the group that she hoped the law and stories of her success would help other people in the future.
SEA 380 Requirements
SEA 380 requires guardianship petitions to report petitioners’ attempts to protect disabled adults through powers of attorney and other guardianship alternatives. The law requires judges to consider the least restrictive guardianship alternatives to preserve disabled persons’ dignity and autonomy. Less restrictive alternatives could include making a power of attorney or appointing a health care representative.
Supported Decision Making Advocates’ Frustrations
Disability advocates have complained in recent years about exploitation of disabled adults in unnecessary guardianships. Emily Gurnon highlighted this problem in her three-part 2016 article series entitled “Guardianship in the U.S.: Protection or Exploitation?” As Ms. Gurnon’s series highlighted, several reported cases have emerged in recent years of guardians robbing elderly people of their dignity and independence without justification.
Estate and Trust Attorneys’ Concerns
On the other hand, Indiana elder law attorneys worried that the original supported decision making proposal would obstruct protection of neglected and abused adults. They pointed out that many guardianship cases begin after health or financial crises have already stricken endangered adults. Lawyers expressed concern that additional procedural safeguards would unnecessarily delay important interventions and increase guardianship costs.
Elder law attorneys argued that procedural delays leave advanced stage dementia patients unprotected from their own dangerous behaviors (see these stories about fatalities caused when a demented bus driver drove into a British supermarket and an elderly Texas woman’s death from exposure after wandering from home, and our article, “Do Old Drivers Fade Away?“).
Lawyers also pointed out that burdensome guardianship procedures can increase guardianship costs. With average Indiana nursing home costs exceeding $80,000 per year (see our article, “Medicaid Application Trial and Error”) that financially abused or neglected people may not be able to afford.
Supported Decision Making Stakeholders Compromise
Legislators and advocate groups struggled to balance conflicting interests between autonomy and protection in SEA 380’s development. At times, traditional disability allies like ARC of Indiana and the Indiana State Bar Association’s Probate, Trust & Real Property Section found themselves in sharp opposition to one another. Finally, compromises on all sides produce a bill that everyone believes will serve disabled Hoosier adults well in the future. The guardianship petition must state the petitioner’s consideration of less restrictive alternatives, but it may also explain why the alternatives are inadequate.
Anatomical Gift Legislation
Governor Holcomb turned the group’s attention next to State Representative Ronald Bacon’s advocacy for disabled organ transplant candidates. Rep. Bacon, a respiratory therapist from Northwest Warrick County, briefly described his concerns for disabled organ transplant patients. He sponsored SEA 112 to prevent health care providers from discriminating against disabled people in organ transplant cases.
SEA 112 Anti-Discrimination Protections for Disabled Patients
SEA 112 prohibits health care providers from considering a disabled patient’s inability to comply with medical requirements following transplantation to be medically significant if a qualified recipient has individuals or entities available to assist in complying with the requirements. The law also prevents a health insurance company from denying coverage for anatomical gifts, transplantation, or related health care services based solely on the disability of the insured patient.
Health care providers must now help make transplantation related treatment and services more accessible to disabled people. However, the law allows restrictive policies and procedures if providers can show that changes would fundamentally alter the nature of the transplantation related treatment and services.
Disabled transplant candidates also have new law enforcement tools through SEA 112. A disabled person who believes that a health care provider has violated the law may seek a court order requiring the provider to follow the law.
About the Authors
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers. They are also active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys.
Jeff is a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation. He is also a member of the Illinois State Bar Association and the Indiana Association of Mediators. He served as the 2014-15 President of the Indiana State Bar Association, and he is a registered civil mediator.
Find more information about these and other topics on YouTube and at www.HawkinsElderLaw.com. Facebook users can like @HawkinsElderLaw on Facebook. Twitter users can follow @HawkinsElderLaw. The LinkedIn crowd can follow us at https://www.linkedin.com/company/hawkinselderlaw. You can also call us at 812-268-8777.
© Copyright 2019 Hawkins Elder Law. All rights reserved.
[See our Disclaimers page about relying on this website’s contents.]