Surrogate Decision Making

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Agnes Henry
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1 Dot Your I s & Cross Your T s: Understanding POA s Douglas G. Chalgian Chalgian and Tripp Law Offices, PLLC Surrogate Decision Making Surrogate Decision Making What does Surrogate Decision Making mean? One person making decisions for another person. Long history of the law of agency A principal and an agent PLLC 1

2 Legal Capacity = The ability to make informed and rational decisions for yourself. As people live longer and more people suffer from forms of dementia, number of people who compromised capacity increases. Different level of capacity needed for different decisions. Adjudication of incapacity is not necessary for someone to in fact be incompetent to make decisions. The relevance of deemed incompetent by medical providers. Fiduciary What Does it Mean? A position of trust. Law imposes the highest standard of care. As opposed to contract law: buyer beware. Cause of action: Breach of Fiduciary Duty. Fiduciary Who does it apply to? Power of Attorney for finances Power of Attorney for medical (patient advocate) Guardian Conservator Trustee Executor (personal representative) Representative Payee for Social Security Persons standing in a position of trust through informal arrangements Opens the mail and writes the checks, etc. PLLC 2

Two Separate Issues Medical and Personal Care Financial Matters Two Separate Documents Durable Power of

3 Fiduciary and Surrogate Decision-Makers A surrogate decision maker will almost always be acting in a fiduciary capacity That is true with respect to both medical and financial decisions. Two Separate Issues Medical and Personal Care Financial Matters Two Separate Documents Durable Power of Attorney for Medical Care (Patient Advocate Designation). Durable Power of Attorney for Finances** ***Assets held in trust PLLC 3

4 Durable Power of Attorney (medical and financial) Durable means continues notwithstanding subsequent incapacity. Allows principal to select Agent to make decisions when no longer able to make decisions for himself/herself. Allows principal to clarify scope of agent s authority. Signed acceptance of agent is required. In many cases having these documents in place will avoid probate in that the family will not need to rush to court for a guardianship or conservatorship when capacity becomes an issue. Co- Agents and Successor Agents (medical and financial) In either document, the principal may nominate one or more successor agents. Whether an agent can delegate power temporarily will be determined by the language of the document. Medical POA s, there is disagreement whether the law allows co-agents, but little disagreement that it is a bad idea. Financial POA s commonly nominate co-agents. Whether co-agents can act independently or must act in unison, will depend on the language of the document. Legal Capacity and Surrogate Decisions It is not always necessary for someone to be incompetent in order for a surrogate to make decisions for them. In medical care situations, incapacity is generally required for others to make care decisions; but not necessarily access medical information. With respect to financial affairs, incapacity is often not required for the agent to have authority to act. PLLC 4

such as Alzheimer s Diseases. Dr. Lichtenberg s research indicates that vulnerability is as closely linked to social isolation and lack of empowerment as it is to organic conditions of the brain. Dr. Peter Lichtenberg, Ph.

5 Dr. Peter Lichtenberg, Ph.D. Beyond Cognitive Decline. Historically research on older adults and vulnerability to exploitation has been overly focused on linking vulnerability to cognitive impairments, and particularly age related dementing conditions such as Alzheimer s Diseases. Dr. Lichtenberg s research indicates that vulnerability is as closely linked to social isolation and lack of empowerment as it is to organic conditions of the brain. Dr. Peter Lichtenberg, Ph.D. Financial Capacity is an Early Victim of Cognitive Impairment. In terms of the impact of age related cognitive impairment and vulnerability to financial exploitation, Dr. Lichtenberg s research concludes that financial capacity is among the first skills to be compromised in the dementing process. People can become vulnerable to exploitation even before it is clear they are cognitively impaired. The Lichtenberg Financial Decision Making Rating Scale at Durable Power of Attorney for Finances May be springing or immediately effective. If springing, requirement to trigger is as stated in the document. PLLC 5

6 Durable Power of Attorney for Finances Does not continue after death. Then it becomes the Executor (personal rep.) of the Estate or Trustee of Trust May contain broad or very limited authority. May require accountings or other protections. Acceptance by agent is required. Durable Power of Attorney for Finances Agent must act in Principal s best interest = no stealing. May allow for gifting or alteration of estate plan, but only to extent expressly authorized and still only in manner that serves the agent s best interests. Durable Power of Attorney for Finances An agent appointed by a principal under a durable power of attorney for finances, may sign documents obligating the financial resources of the principal, IF: - the agent is authorized springing v immediately effective is acting agent, not a successor if co-agent, may act alone. - doing so is within the scope of their authority - they have signed an acceptance. PLLC 6

Shift to: Medical POA/Patient Advocate Designation Michigan Patient Advocacy Act. Effective January 1, 1991.

7 Shift to: Medical POA/Patient Advocate Designation Michigan Patient Advocacy Act. Effective January 1, Creates and defines the role of a Patient Advocate and establishes requirements for a valid Patient Advocate Designation. A PAD may include a statement of the patient s wishes regarding care, custody and medical treatment. (but it is not a living will ) Michigan Patient Advocacy Act. A PAD is used and effective primarily in hospitals and nursing homes. Authority of the patient advocate only arises when patient has been certified to be unable to participate in the decision process. PLLC 7

8 The Big Balance Safety and Convenience Independence and Dignity Durable Power of Attorney for Medical Care aka Patient Advocate Designation Only springing Requires two doctors to determine need for agent to act. Can include expression of wishes, but does not need to. No living will law in Michigan. May include designation of funeral representative. Can make anatomical gifts (only post death action). Durable Power of Attorney for Medical Care aka Patient Advocate Designation Terminates on revocation notwithstanding certified incapacity. Roush issues. PLLC 8

9 Durable Power of Attorney for Medical Care aka Patient Advocate Designation May include HIPAA release/designation. HIPAA designation may be stand alone document. PAD Top Ten Tips See Handout A patient advocate may make medical decisions re a patient s care, and sign admissions forms related to medical care, if: Their authority has been triggered (two doctors); and They have signed an acceptance; and They have current authority (as opposed to successor) The decision is within the scope of their authority. The document has not been revoked. PLLC 9

10 Patient Advocate Designation as compared to POST or POLST form Physician s Order for Life Sustaining Treatment Used in some Michigan Counties and hospital systems. Currently no State law authorization except for pilot programs. Not a substitute for PAD, but a supplemental tool. POST or POLST form (from National POLST polst.org) The POLST Form is a set of medical orders, similar to the do-not resuscitate (allow natural death) order. POLST is not an advance directive. POLST does not substitute for naming a health care agent or durable power of attorney for health care. A POLST Paradigm Form is not for everyone. Only those who are seriously ill or frail, or for whom their physicians would not be surprised if they died in the next year, should have one. Currently no State law authorization except for pilot programs. The POLST Form is completed as a result of the process of informed, shared decision-making. During the conversation, the patient discusses his or her values, beliefs, and goals for care, and the health care professional presents the patient s diagnosis, prognosis, and treatment alternatives, including the benefits and burdens of life-sustaining treatment. Together they reach an informed decision about desired treatment, based on the person s values, beliefs and goals for care. Designated Caregiver Act (the CARE Act) Became law in Michigan in July 2016 Hospital patients (or patient advocates) have the right to designate a caregiver who the hospital is then supposed to coordinate the hospital discharge and post-hospital care with. A designated caregiver has no fiduciary obligation to perform any care or assistance and a patient may designate a caregiver in an advance directive. Enforcement is questionable as there is no liability to care providers who fail to act in accordance with the law. PLLC 10

Probate Court Appointed Fiduciaries Guardians = medical and personal care decisions Conservators = financial decisions

Probate Court Appointed Fiduciaries Guardianships for Legally Incapacitated Individual Guardianship for persons with

Sometimes: Has become financially dependent on the parent, which dependence evolves to exploitation with the onset of

11 Probate Court Appointed Fiduciaries Guardians = medical and personal care decisions Conservators = financial decisions Should be limited to extent necessary. Should not be created where other mechanism (DPOA or PAD) is in place and working. Probate Court Appointed Fiduciaries Guardianships for Legally Incapacitated Individual Guardianship for persons with developmental disabilities Guardians and conservators for minors The Dope Smoking Adult Child Living in the Basement Sometimes: Has become financially dependent on the parent, which dependence evolves to exploitation with the onset of cognitive decline. The only person who cares about the aging adult, and the reason that s/he is able to remain at home. Some of both. PLLC 11

12 End of Life In the Beginning. Cruzan v Missouri Department of Health, 497 US 261 (1990). i. Followed a number of cases from state courts in holding that there is a constitutionally protected right to withhold or withdraw life support; ii. Held that, when an individual is not capable of exercising this right, the right to withhold life support may be exercised on their behalf, but that in doing so, states may impose evidentiary standards such as a clear and convincing standard to protect the state s interests in preserving life. Cruzan continued Recognize that the Cruzan decision only recognizes an individual s right to just say no to artificial means for sustaining life including, the right to withhold or withdraw treatment that would preserve life. It does not create or recognize a right in an individual to take an affirmative step to terminate life that is not being preserved by artificial means (i.e., suicide and assisted suicide are not constitutionally protected). PLLC 12

13 U.S. Patient Self Determination Act Effective date: December 1, 1991; prompted by the Cruzan case. Incorporates state law on advanced directives. This law marked the beginning of the effort to create a legal mechanism whereby the constitutional rights of the individual recognized by the Cruzan court could be exercised by the individual (or their surrogate) even if they are not competent to make or express their preferences at the time the medical decision needs to be made (as is often the case). Physician Assisted Suicide Legal is Oregon, Vermont, Washington, Montana, New Mexico and California Michigan Do Not Resuscitate Procedures Act Purpose is to provide procedure which allows EMS and other medical workers outside the hospital and nursing home setting to follow written instructions of incompetent patient to forego life saving efforts PLLC 13

14 Michigan Do Not Resuscitate Procedures Act A DNR order must be established with the participation of a physician. A DNR order must be kept readily available. The existence of DNR order can be indicated by bracelet work by patient. May be revoked at any time. Michigan Dignified Death Act Effective date January 8, Creates concept of a Patient Surrogate Patient surrogate acts when a patient is terminally ill (reduced life expectancy due to an advanced illness) and has no patient advocate. Michigan Dignified Death Act The patient surrogate for someone other than a minor is a member of the patient s immediate family, next of kin, or guardian. (The statute does not establish priorities). The patient surrogate for a minor is the minor s parents, unless a guardianship exists. PLLC 14

15 Mental Health Competent to create a PAD While on Meds may function well Kevin s law and the irrevocable PAD Mental health merry go round: commitment stability event commitment. Documents are not well suited to address these challenges. Guardianships typically not appropriate due to vacillating levels of abilities. Drug and Alcohol Abuse Similar to mental illness in that may create periods of incompetence, followed by periods of normal or near normal abilities. Drug and alcohol related dementias are common and may be more coming down the road. Guardianship End of Life Authority Clarified The Guardians of adults (but not for persons with developmental disabilities) have authority to sign do not resuscitate orders (DNR orders) Law took effect Feb 4 th, 2014 PLLC 15

) If an individual has not made an anatomical donation, at the time or that individual s death, another authorized by statute may

16 Michigan Uniform Anatomical Gift Act. An adult of sound mind may make a gift of their body or some portion thereof for science (hospitals, medical schools, etc.) If an individual has not made an anatomical donation, at the time or that individual s death, another authorized by statute may make such a donation provided the individual who s body is being donated has no known religious objection, and has not expressed an unwillingness to make such a gift. Michigan Uniform Anatomical Gift Act. A valid intent to donate made by an individual during his/her life can only be revoked by that individual, and may not be revoked by an agent or surviving family member before or after the death of the donor. Midland East Lansing Saginaw Battle Creek Jackson Southfield PLLC 16

ADVANCE DIRECTIVE FOR A NATURAL DEATH ("LIVING WILL")

ADVANCE DIRECTIVE FOR A NATURAL DEATH ("LIVING WILL") NOTE: YOU SHOULD USE THIS DOCUMENT TO GIVE YOUR HEALTH CARE PROVIDERS INSTRUCTIONS TO WITHHOLD OR WITHDRAW LIFE-PROLONGING MEASURES IN CERTAIN SITUATIONS.