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For Love, Legacy, or Pay
Title
For Love, Legacy, or Pay: Legal and Pecuniary Aspects of Family Caregiving.
Creator
Kapp, Marshall B.
Abstract/Description
Most caregiving and companionship provided by family members and friends to older individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment. From a legal perspective, though, it might be ill-advised for an informal caregiver to admit such a motivation. Building on a recently published study of relevant litigation, this essay discusses changing cultural and legal aspects of family caregiving when there is some expectation of...
Show moreMost caregiving and companionship provided by family members and friends to older individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment. From a legal perspective, though, it might be ill-advised for an informal caregiver to admit such a motivation. Building on a recently published study of relevant litigation, this essay discusses changing cultural and legal aspects of family caregiving when there is some expectation of pay, property, or future financial legacy in return for the caregiver's present work and sacrifices.
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Date Issued
2012
Identifier
FSU_migr_medlawcenter_publications-0007
Format
Citation
Geriatric Depression
Title
Geriatric Depression: Do Older Persons Have a Right to Be Unhappy?.
Creator
Kapp, Marshall B.
Abstract/Description
Clinical depression is a serious medical problem in the older population. Although it is considered to be highly treatable, physicians and other health care professionals often are criticized for doing an inadequate job of recognizing, and then treating, depression in older persons. They are routinely exhorted to improve their performance by being more aggressive in recognizing and intervening with this clinical condition. Yet, the mandate to provide aggressive treatment of depression is not...
Show moreClinical depression is a serious medical problem in the older population. Although it is considered to be highly treatable, physicians and other health care professionals often are criticized for doing an inadequate job of recognizing, and then treating, depression in older persons. They are routinely exhorted to improve their performance by being more aggressive in recognizing and intervening with this clinical condition. Yet, the mandate to provide aggressive treatment of depression is not always uncontroversial. Rather, medical intervention for older patients may raise a number of challenging legal, as well as ethical, questions. Using a case example, this article outlines some of the salient legal issues implicated by an older person's right to be and act depressed and the exceptions to that right.
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Date Issued
2002
Identifier
FSU_migr_medlawcenter_publications-0002
Format
Citation
Health Care Technology, Health Care Rationing, and Older Americans
Title
Health Care Technology, Health Care Rationing, and Older Americans: Enough Already?.
Creator
Kapp, Marshall B.
Abstract/Description
This is a book review essay, using Daniel Callahan's 2009 book, "Taming the Beloved Beast: How Medical Technology Costs Are Destroying Our Health Care System," as the jumping off point. Kapp takes strong issue with Callahan's proposal that health care costs can best be contained by the federal government setting and enforcing strict controls on the development and use of medical technology, with patients' chronological age acting as the main criterion for distribution of scarce medical...
Show moreThis is a book review essay, using Daniel Callahan's 2009 book, "Taming the Beloved Beast: How Medical Technology Costs Are Destroying Our Health Care System," as the jumping off point. Kapp takes strong issue with Callahan's proposal that health care costs can best be contained by the federal government setting and enforcing strict controls on the development and use of medical technology, with patients' chronological age acting as the main criterion for distribution of scarce medical resources.
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Date Issued
2010
Identifier
FSU_migr_medlawcenter_publications-0006
Format
Citation
Humans Are Mortal?!
Title
Humans Are Mortal?!: I'm Calling My Attorney.
Creator
Kapp, Marshall B.
Date Issued
2010
Identifier
FSU_migr_medlawcenter_presentations-0002
Format
Citation
Legal Approach to the Use of Human Biological Materials for Research Purposes
Title
A Legal Approach to the Use of Human Biological Materials for Research Purposes.
Creator
Kapp, Marshall B.
Abstract/Description
Human Biological Materials (HBM) come from individuals in a variety of circumstances. The use of HBM for research purposes raises a host of difficult ethical questions. The law is important in this arena because, in most cases, legal principles significantly influence the making of ethical choices. Following a general overview of research regulation in the United States generally and a few comments on the relevance of international statements for this country, this article explores several...
Show moreHuman Biological Materials (HBM) come from individuals in a variety of circumstances. The use of HBM for research purposes raises a host of difficult ethical questions. The law is important in this arena because, in most cases, legal principles significantly influence the making of ethical choices. Following a general overview of research regulation in the United States generally and a few comments on the relevance of international statements for this country, this article explores several specific legal issues, and their ethical implications, related to the obtaining and handling of HBM for research purposes, namely: informed consent; privacy; and commercial or ownership (property) interests in HBM. The article concludes that, although the realistic liability risks are low, the law's important role in characterizing the rights and responsibilities involved will be very influential in shaping the ways that the chasm between science and ethics is resolved within the context of the use of human tissue for research purposes.
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Date Issued
2012
Identifier
FSU_migr_medlawcenter_publications-0004
Format
Citation
Legal Issues Arising in the Process of Determining Decisional Capacity in Older Persons
Title
Legal Issues Arising in the Process of Determining Decisional Capacity in Older Persons.
Creator
Kapp, Marshall B.
Abstract/Description
There is an increasing incidence of dementia, depression and other affective disorders, delirium, and other mental health problems such as psychoses among older individuals in the United States. Because the severity of mental illness, in terms of cognitive and behavioral impairment and therefore the illness' impact on functional ability, varies for different patients at different times along a continuum, there is not an automatic correlation between an older person's clinical diagnosis and a...
Show moreThere is an increasing incidence of dementia, depression and other affective disorders, delirium, and other mental health problems such as psychoses among older individuals in the United States. Because the severity of mental illness, in terms of cognitive and behavioral impairment and therefore the illness' impact on functional ability, varies for different patients at different times along a continuum, there is not an automatic correlation between an older person's clinical diagnosis and a dichotomous determination that the individual does or does not possess sufficient present capacity to personally make various sorts of fundamental life decisions. Decisional capacity assessment in the aged carries important implications both for the official adjudication of legal competence and for patient/client management in the vast majority of cases involving "bumbling through." There exists many salient, but generally overlooked, legal and ethical concerns immersed in the health care or human services provider's attempt to evaluate the decisional capacity of a particular older patient/client. This article surveys the most important of those concerns, which arise before we ever get to the point of applying assessment data to the relevant legal and ethical standards of decisional capacity.
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Date Issued
2010
Identifier
FSU_migr_medlawcenter_publications-0003
Format
Citation
Making Medical Decisions for Someone Else
Title
Making Medical Decisions for Someone Else: A Florida Handbook.
Creator
Kapp, Marshall B.
Abstract/Description
If you make health care decisions for another adult person—or might at some future point—this handbook is for you. Learn what it means to become a "health care substitute."
Date Issued
2011
Identifier
FSU_migr_medlawcenter_publications-0001
Format
Citation
Medical Decision-Making for Incapacitated Elders
Title
Medical Decision-Making for Incapacitated Elders: A 'Therapeutic Interests' Standard.
Creator
Kapp, Marshall B.
Abstract/Description
Some older individuals lack sufficient present cognitive and/or emotional ability to make and express autonomous decisions personally. In those situations, health care providers routinely turn to available formal or informal surrogates who often must apply the best interests standard in making decisions for the incapacitated person. This article contends that defining the best interests standard of surrogate decision making for older adults in terms of optimal or ideal choices (truly the...
Show moreSome older individuals lack sufficient present cognitive and/or emotional ability to make and express autonomous decisions personally. In those situations, health care providers routinely turn to available formal or informal surrogates who often must apply the best interests standard in making decisions for the incapacitated person. This article contends that defining the best interests standard of surrogate decision making for older adults in terms of optimal or ideal choices (truly the patient's "best" interests) frequently sets out an unrealizable goal for surrogates to satisfy. Instead, a decision-making standard based on the incapacitated person's "therapeutic" interests is more realistic and hence more honest to adopt and apply from legal, ethical, and medical perspectives.
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Date Issued
2010
Identifier
FSU_migr_medlawcenter_publications-0009
Format
Citation
Medical-Legal Literature 2010-2011
Title
Medical-Legal Literature 2010-2011: Top Ten Hits.
Creator
Kapp, Marshall B.
Date Issued
2011
Identifier
FSU_migr_medlawcenter_presentations-0001
Format
Citation
Older Clients with Questionable Legal Capacity/Competence
Title
Older Clients with Questionable Legal Capacity/Competence: Elder Law Practice and Treating Physicians.
Creator
Kapp, Marshall B.
Date Issued
2010
Identifier
FSU_migr_medlawcenter_presentations-0003
Format
Citation
Older Clients with Questionable Legal Competence
Title
Older Clients with Questionable Legal Competence: Elder Law Practitioners and Treating Physicians.
Creator
Kapp, Marshall B.
Abstract/Description
Issues frequently arise in Elder Law practice concerning the cognitive and emotional ability of an older individual to make legally significant decisions. The physicians who have treated the person whose competence is being called into question, and/or the medical records generated by the treating physicians, often are sought by attorneys as sources of factual evidence regarding the patient's symptoms and behaviors, clinical diagnoses, and treatments offered and dispensed. The attorney...
Show moreIssues frequently arise in Elder Law practice concerning the cognitive and emotional ability of an older individual to make legally significant decisions. The physicians who have treated the person whose competence is being called into question, and/or the medical records generated by the treating physicians, often are sought by attorneys as sources of factual evidence regarding the patient's symptoms and behaviors, clinical diagnoses, and treatments offered and dispensed. The attorney/physician interaction in this arena may be less than ideal. This essay examines some of the reasons for such interprofessional friction and makes suggestions for productively addressing the tension in a manner likely to benefit the allegedly incompetent person.
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Date Issued
2010
Identifier
FSU_migr_medlawcenter_publications-0005
Format
Citation
Overcoming Legal Impediments to Physician Orders for Life-Sustaining Treatment
Title
Overcoming Legal Impediments to Physician Orders for Life-Sustaining Treatment.
Creator
Kapp, Marshall B.
Abstract/Description
The Physician Orders for Life-Sustaining Treatment (POLST), otherwise known as the POLST paradigm, represents the next generation in end-of-life (EOL) planning for certain patients who wish to exercise prospective control over their own medical treatment in their final days. As is true for any physician treatment orders, a POLST is written in consultation with the patient or patient’s surrogate. There are a number of practical impediments to widespread adoption and implementation of the POLST...
Show moreThe Physician Orders for Life-Sustaining Treatment (POLST), otherwise known as the POLST paradigm, represents the next generation in end-of-life (EOL) planning for certain patients who wish to exercise prospective control over their own medical treatment in their final days. As is true for any physician treatment orders, a POLST is written in consultation with the patient or patient’s surrogate. There are a number of practical impediments to widespread adoption and implementation of the POLST paradigm in medical practice. One of these impediments has to do with some physicians’ anxiety about potential negative legal repercussions they might suffer for writing or following a patient’s POLST; this is the focus of the present article. After describing the POLST paradigm and physicians’ anxieties about it, this article argues that the feared potential negative legal consequences of writing or following a patient’s POLST are not well founded. Instead of succumbing to legal and ethical paralysis, resulting in the failure to integrate the POLST paradigm robustly into practice, physicians should feel comfortable under current and developing law to write and honor POLSTs for appropriate patients. This article explains the basis for such physician comfort.
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Date Issued
2016-09
Identifier
FSU_libsubv1_scholarship_submission_1474465770, 10.1001/journalofethics.2016.18.09.peer1-1609
Format
Citation
Physician's Responsibility Concerning Firearms and Older Patients
Title
The Physician's Responsibility Concerning Firearms and Older Patients.
Creator
Kapp, Marshall B.
Abstract/Description
The possibility of firearms ownership and possession by an older patient raises a number of issues with potential legal ramifications for the primary care physician. This article addresses some of the most salient of those law-related issues. It commences with a brief outline of gun regulation in the U.S. An enumeration of some of the specific aspects of gun ownership and possession by older persons ensues. I then comment on the collective role of the medical profession regarding firearms as...
Show moreThe possibility of firearms ownership and possession by an older patient raises a number of issues with potential legal ramifications for the primary care physician. This article addresses some of the most salient of those law-related issues. It commences with a brief outline of gun regulation in the U.S. An enumeration of some of the specific aspects of gun ownership and possession by older persons ensues. I then comment on the collective role of the medical profession regarding firearms as a public health matter, followed by ideas about the individual physician’s appropriate role at the micro level regarding firearms within the context of the physician/older patient professional relationship. Specific attention is devoted to physicians’ rights in this arena and to policy arguments about converting those rights into legally enforceable obligations. The article concludes that it is undesirable for statutes to be enacted by state legislatures, but proper for common law to evolve through changes in professional practice and opinion in the direction of, imposing affirmative requirements on physicians to inquire about firearms ownership or possession by older patients and to counsel certain patients and their family members regarding associated dangers. Additionally, the law should recognize and encourage physician discretion to protect patients and third parties at foreseeable risk by intervening through notifications about suspected dangers to proper agencies and authorities, but such protective actions should not be mandated routinely by state statutes or judicial precedent.
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Date Issued
2016-03-01
Identifier
FSU_libsubv1_scholarship_submission_1468503840
Format
Citation
PPACA Versus Defined Contribution Approaches to Health Care Financing
Title
The PPACA Versus Defined Contribution Approaches to Health Care Financing: A Clash of Visions About the Aged.
Creator
Kapp, Marshall B.
Abstract/Description
American culture and public policy have long held a split vision about the aged: vulnerability, dependency, and special need for law and policy to act as a protective shield versus the aged as independent, self-reliant, and capable of choice, with law acting as a source of individual empowerment. In terms of health care financing, the 2010 Patient Protection and Affordable Care Act (PPACA) clearly leans toward protecting older persons from risk, rather than empowering them to act autonomously...
Show moreAmerican culture and public policy have long held a split vision about the aged: vulnerability, dependency, and special need for law and policy to act as a protective shield versus the aged as independent, self-reliant, and capable of choice, with law acting as a source of individual empowerment. In terms of health care financing, the 2010 Patient Protection and Affordable Care Act (PPACA) clearly leans toward protecting older persons from risk, rather than empowering them to act autonomously. This article compares the PPACA vision of elder vulnerability to alternative policy proposals for financing health care for the aged that are built on a vision of elder abilities and capacity for self-determination. The author advocates for the latter social vision and associated health care financing policy alternatives, arguing that a rebuttable presumption of elder capacity that recognizes and provides for individual variations better serves important societal values than does the PPACA's categorical conclusion that the aged as a population are unable to fend for themselves.
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Date Issued
2011
Identifier
FSU_migr_medlawcenter_publications-0008
Format
Citation