• Elder Law
  • Age Discrimination in Employment
  • Health Care Decisions and Protective Arrangements
    • Documents Governing Health Care Decisions
      • Natural Death Act Directive
      • Out-of-Hospital Do-Not-Resuscitate Order
      • Durable Power of Attorney for Health Care
    • Guardianship
    • Commitment to a Mental Health Facility
      • Voluntary Commitment
      • Emergency Detention
      • Judicial Commitment
  • Resources

Elder law is one of the fastest-growing specialty areas of legal practice today. As recently as ten years ago, almost no one would have described his or her legal practice as an elder law practice, because most lawyers assumed that the concerns of elderly clients were indistinguishable from the interests of any other group. Because few lawyers focused their practices on senior citizens, many seniors felt their unique concerns were ignored by the legal profession.

All this is changing rapidly. As the average age of Americans rises, society is becoming increasingly aware of the unique problems facing elderly people, as well as the professional opportunities available in serving them. As senior citizens take a more active role in asserting their rights, an increasing number of the elderly have sought legal representation from lawyers sensitive to their needs.

Elder law is not a well-defined area of legal specialization. Elder law borrows from many other areas, such as health law, probate, estate planning and trusts, family law, civil rights, and even consumer protection. Each of these areas is discussed fully in separate chapters of this Guide. Government-sponsored benefits available to retired people obviously are of interest to older people. The federal Social Security Act governs several public benefit programs, most of which are financed by taxes levied on workers. The Social Security programs are extremely complex. A description of the basic programs can be found in the Social Security Law Chapter.

With longer life expectancies and better access to health care, more people are staying active longer and want to remain in the work force past traditional retirement age. Also, many elderly people need the income from employment. Consequently, employers have far more elderly employees, and the number of elderly job applicants is higher than at any other time in history. Unfortunately, incidents of age-based job discrimination also are on the rise.

Seniors are protected from age discrimination in the workplace by the federal Age Discrimination in Employment Act of 1967. While Texas laws also prohibit workplace discrimination, these laws provide no more protection than the federal laws.

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits age-based discrimination by labor organizations, employers, and employment agencies. Under the ADEA, employers are prohibited from using age as a basis for making hiring, firing, promotion, or compensation decisions, or from limiting, segregating, or classifying employees in any way that would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect his or her status. The ADEA specifically prohibits the use of job advertisements that specify an applicant should be "young" or a "recent graduate," or that use terms such as "retired" or "over 65."

The ADEA has five major exceptions to its coverage. Employers accused of violating the ADEA use one or more of these exceptions as a defense for their actions.

• Tenured faculty members. Until 1994, the ADEA did not prohibit compulsory retirement at age 70 for tenured faculty members at institutions of higher learning. This exception expired on December 31, 1993, so compulsory retirement ages for tenured faculty no longer are permissible.

• Executives and policy makers. A small number of high-level employees with substantial executive authority are not covered by the ADEA and may be subjected to compulsory retirement at age 70. This exception is very narrow and does not allow for compulsory retirement policies for mid-level managers.

• Good cause. An employer is permitted to discharge an employee for "good cause," a catch-all category that includes many different forms of failure to do a job adequately.

• Occupational requirement. In certain narrowly defined situations, an action otherwise impermissible under the ADEA may be legal if the employer's action is "reasonably necessary to the operation of the business" or is based on "reasonable factors other than age." For example, employers may have mandatory retirement policies for firefighters and airplane pilots.

• Bona fide seniority systems and employee benefit plans. Generally, it is permissible for an employer to adopt a bona fide seniority system or employee benefit plan as long as the system or plan is not intended to evade the purposes of the ADEA.

A victim of age-based discrimination must bring an action under the ADEA against his or her employer within two years of a non-willful violation or within three years of a willful violation. Other federal and state laws that prohibit discrimination based on age supplement the ADEA. For example, the Texas Commission on Human Rights Act, which parallels the federal civil rights law, is enforced within Texas by the Texas Commission on Human Rights. Because of the complex interplay between the state and federal laws and because they have different statutes of limitations, a victim of age discrimination should seek advice from a lawyer or representative of the federal Equal Employment Opportunity Commission (EEOC) or the Texas Commission on Human Rights about how, when, and where to proceed against an employer.

With people living longer than ever before and medical technology advancing at a rapid pace, more people are beginning to plan now for their future health care. Texas law provides for different arrangements in which people may set forth in advance what should happen if they become incapacitated and unable to make health care decisions. These arrangements are designed to protect individuals who, in varying degrees, are unable to care for themselves.

Because much of the law in this area is new and is evolving rapidly, it can appear confusing, even contradictory, at times. This is one area of law for which it is especially important to hire good legal counsel who can be relied upon to stay abreast of important new laws and recommend appropriate changes.

Documents Governing Health Care Decisions

Texas law provides that a competent adult may execute a Natural Death Act directive, a do-not-resuscitate order, or a durable power of attorney for health care to describe how medical treatment decisions should be made if the person becomes incapable of making them himself or herself. In the absence of a document that sets forth an individual's wishes regarding health care, his or her health care decisions are covered by the provisions of the Texas Consent to Medical Treatment Act. Under this Act, a surrogate--usually a family member--may make important decisions about a person's health care if he or she becomes unable to do so. If someone has executed more than one of the documents governing health care decisions, the one signed most recently controls.

Natural Death Act Directive

The Texas Natural Death Act allows that a person who is over 18 years of age and competent may write a directive stating what should happen if he or she develops an incurable or irreversible condition. In some other states, this kind of directive is called a living will. These directives are controversial and, although many states refuse to recognize them, they are recognized in Texas.

Any competent adult can make a directive. Although many people have Natural Death Act directives drafted by their lawyers at the same time they have their wills drafted, directives do not need to be drafted by lawyers. Texas has a suggested form, that people may use if they wish. Many people seek advice from a doctor before drafting a directive so they can describe their wishes specifically, taking into account the kinds of medical technology currently available. The directive states exactly what the declarant wishes if a terminal condition is diagnosed by two physicians, including the withholding or withdrawing of procedures that prolong the dying process. The directive must be witnessed and signed by two people. The witnesses may not be the declarant's relatives, the attending physician, employees or fellow patients in the declarant's health care facility, or those entitled to a portion of the declarant's estate.

A person who signs a directive should inform his or her doctor that the directive exists so that it can be made part of the person's medical record. Directives may be revoked upon the wishes of the declarant, in writing, by destroying the directive, or by oral declaration of the intention to revoke. The most important point about a directive of this kind is that the individual decides how much and what kind of health care he or she wants.

Directive made this _______ day of __________(month, year).

I______________, being of sound mind, wilfully and voluntarily make known my desire that my life shall not be artificially prolonged under the circumstances set forth in this directive.

1. If at any time I should have an incurable or irreversible condition caused by injury, disease, or illness certified to be a terminal condition by two physicians, and if the application of life-sustaining procedures would serve only to artificially postpone the moment of my death, and if my attending physician determines that my death is imminent or will result within a relatively short time without the application of life-sustaining procedures, I direct that those procedures be withheld or withdrawn, and that I be permitted to die naturally.

2. In the absence of my ability to give directions regarding the use of those life-sustaining procedures, it is my intention that this directive be honored by my family and physicians as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from that refusal.

3. If I have been diagnosed as pregnant and that diagnosis is known to my physician, this directive has no effect during my pregnancy.

4. This directive is in effect until it is revoked.

5. I understand the full import of this directive and I am emotionally and mentally competent to make this directive.

6. I understand that I may revoke this directive at any time.

Signed ___________________

(City, County, and State of Residence)

I am not related to the declarant by blood or marriage. I would not be entitled to any portion of the declarant's estate on the declarant's death. I am not the attending physician of the declarant or an employee of the attending physician. I am not a patient in the health care facility in which the declarant is a patient. I have no claim against any portion of the declarant's estate on the declarant's death. Furthermore, if I am an employee of a health facility in which the declarant is a patient, I am not involved in providing direct patient care to the declarant and am not directly involved in the financial affairs of the health facility.

Witness

Witness

Texas Health & Safety Code Ann. ¤ 672.004 (West 1992)

Out-of-Hospital Do-Not-Resuscitate Order

An out-of-hospital do-not-resuscitate (DNR) order is a particular written document authorized by Texas statutory law. A person who has been diagnosed with a terminal condition, and who does not want health care providers to use life-sustaining measures in the case of an out-of-hospital medical emergency, may register his or her wishes on this type of written document. This order must be signed by the individual who is the subject of the document, two witnesses, and the attending physician.

Like the Natural Death Act directive, an out-of-hospital DNR order contains a statement that the person does not want life-sustaining measures to be used. Texas statutes provide a format for the order. A person who has created an out-of-hospital DNR order may wear a DNR identification device, which indicates that the out-of-hospital DNR order has been executed and is in effect. The order may be revoked at any time by clear communication indicating the intent to revoke the order.

Durable Power of Attorney for Health Care

Another type of document that governs health care decisions is a durable power of attorney for health care. A durable power of attorney for health care is a document that one person (the principal) signs in order to give another person (the agent) authority to make health care decisions if the principal becomes incapacitated. A person's health condition does not have to be terminal for a durable power of attorney for health care to be effective. This type of document may be executed only by adults of sound mind.

The durable power of attorney for health care sets out exactly what the agent will do if the principal becomes unable to make health care decisions. Generally, it gives the agent the right to medical information about the principal, to receive or release medical records, or to consent to medical treatment. The agent is not authorized to consent to abortion, convulsive treatment, psychosurgery, or voluntary commitment to a mental health facility. The durable power of attorney may state that the agent has complete authority to make health care decisions based on what the agent believes the principal would want, or it may state specifically what the health care decisions should be. Any person, except for the treating health care provider and certain other health care workers, may be designated an agent for health care decisions concerning another person. Texas has a suggested form for the durable power of attorney for health care, or a principal may write his or her own durable power of attorney for health care as long as it contains all the information required by law. The durable power of attorney for health care must name the agent, describe the power the agent will have, and be signed by the principal and dated while the principal still is able to make his or her own decisions. The form must be signed by two witnesses neither of whom may be the person's health care provider, spouse, heir or beneficiary, or creditor.

A valid durable power of attorney for health care made in another state is recognized in Texas.

Guardianship

Texas guardianship law provides that a court may appoint a guardian of a person who has become mentally or physically incapable of making personal or financial decisions. The guardian may be appointed as a guardian of the person or guardian of the person's estate, or both. The guardian's role is to protect and preserve the ward (the incapacitated person) or the estate of the ward.

To create a guardianship, any person may submit an application to the court, which must include:

• The name, date of birth, gender, and social security number of the proposed ward

• The name, address, and social security number of the proposed guardian, and his or her relationship to the proposed ward

• The names and addresses of the proposed ward's relatives, including spouse, children, and siblings

• The type of guardianship sought (of the person, estate, or both) and its proposed duration

• The name and address of an institution or person with a custodial, power-of- attorney, or guardianship relationship with the proposed ward

• The value and a description of the proposed ward's property

• The facts surrounding the need for the appointment, including the nature and degree of the incapacity

Generally, a guardian of the person must make and file a bond.

Certain people are disqualified from being guardians in Texas. Minors, incapacitated persons, debtors of the ward, nonresidents of Texas, and parties to any lawsuit affecting or potentially affecting the welfare of the proposed ward may not be guardians. Additionally, if the court finds that a person is not suitable--because his or her conduct is notoriously bad, the person is inexperienced or uneducated, or for any other reason including conflict of interest--the proposed guardian will be disqualified.

Usually an application is made by a family member or close friend concerned about the person's competence to manage property or make personal decisions. An order granting a guardianship must include court findings that the court has venue, that the ward is incapacitated, that the guardian is eligible and entitled to act as such, and that the guardianship will protect the ward and/or his or her estate. The court is obligated to consider the proposed ward's preferences in appointing a guardian. If the court finds that the proposed ward is only partially incapacitated, it may create a limited guardianship. Under this order the guardian has limited and specific powers.

For many families, guardianship causes a drastic change in the family relationship, especially if not all family members agree that an application for guardianship should be filed. Some of this potential stress can be avoided if an aging person creates a document such as a Natural Death Act directive while still legally competent. Another option is to create a living trust, which is discussed in the Estate Planning, Wills & Trusts Chapter of this Guide.

Commitment to a Mental Health Facility

There are three ways an individual can be committed to an institution for mentally ill persons. Commitment sometimes becomes an issue for elderly people.

Voluntary Commitment

Competent persons age 16 or older in Texas may request voluntary admission to an inpatient mental health facility by way of written request for admission. (A person younger than 16 years of age may be admitted by request of the person's parent or guardian.)

The administrator of the facility will deem the individual suitable to be admitted upon receipt of the request and a preliminary examination that shows the person has symptoms of mental illness. The patient must be informed of his or her rights immediately. These rights include the right to be examined periodically to determine whether continued inpatient care is appropriate. All records of a mental health facility that identify a particular patient are confidential. Patients have the right to receive visitors and to communicate with others outside the mental health facility by uncensored mail or telephone.

Persons admitted voluntarily have the right to be released after filing a written request. The request must be signed by the patient or whoever was responsible for the admission. The patient must be discharged within 96 hours after he or she files the written request for release with the facility administrator.

Emergency Detention

Any adult may file a written application with the administrator of a mental health facility to admit someone on an emergency basis. The application must state that the applicant believes the person to be mentally ill, and that hospitalization is necessary to protect the admitted person from hurting himself or herself or others. It must state the specific reasons why the person may cause harm, including a description of specific recent behavior, as well as the applicant's relationship to the person to be detained.

On receiving the application and after conducting a preliminary examination, the facility will accept the person on a temporary basis for no more than 24 hours. At the expiration of 24 hours, the person either must be released or admitted. If admitted, the application must include a statement by the examining physician that the person is mentally ill and evidences an imminent and substantial risk of serious harm to himself or herself or others.

Judicial Commitment

A petition for court-ordered temporary or extended mental health services may be made by a county or district attorney or any other individual. If the application is made by someone other than a county or district attorney, it must be accompanied by a certificate of medical examination. The person petitioning for involuntary judicial admission must file the petition in the county where the person sought to be admitted resides, is found, or currently is receiving mental health services. The petition must state the facts that make commitment necessary and the name and address of the proposed patient. Upon the filing of a petition for commitment, the court will appoint an attorney for the proposed patient within 24 hours and set the matter for hearing. If the petition does not contain a certificate of medical examination, the court will order an examination. In some Texas counties, a master presides over proceedings concerning commitment for mental health services.

The proposed patient receives notice of the hearing and a written summary of his or her rights. No court-ordered admission may be made unless there is a finding by a judge or jury, based on clear and convincing evidence, that the person is mentally ill. The court also must find that the person is likely to cause harm to himself or herself or others, or that the person will suffer continuing and severe mental, emotional, or physical distress if he or she is not treated. If the court or jury fails to find that the person requires mental health services, the person must be immediately released.

General information about elder law is available from the Commission on Legal Problems of the Elderly, American Bar Association, 740 15th Street N.W., Washington, DC 20005, (202) 662-8690.

For advice and referrals, contact the Texas Aging Department, P.O. Box 12786, Austin, TX 78711, (512) 444-2727 or (800) 622-2520.

For information, to file a charge of discrimination, or to order Equal Employment Opportunity Law: Texas Commission on Human Rights, a free pamphlet, contact the Texas Commission on Human Rights, P.O. Box 13493, Austin, TX 78711, (512) 437-3450, TTD (800) 735-2989.

For information on adult/elder services, including protective services, call the Eldercare Locator, (512) 424-6840 or (800) 677-1116.

For information about prosecution of health care fraud, contact the Office of the Attorney General, Elder Law and Public Health Division, P.O. Box 12548, Austin, TX 78711-2548, (512) 936-1300 or (800) 337-3928.

The Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, TX 78711-2668, (512) 454-3761, is the agency charged with enforcing the law of guardianship and commitment.

For information on federal employment discrimination law, contact the United States Equal Employment Opportunity Commission (EEOC), Dallas District Office, 207 Houston Street South Third Floor, Dallas, TX 75202, (214) 655-3300; Houston District Office, 1919 Smith Street Seventh Floor, Houston, TX 77002, (713) 209-3373.