Transcript Health Care Proxy

Spotting the Legal Issues
when Dealing with Family
Caregivers
Presented by :
Debra A. Verni, Esq
Kimberly Strauchon Verner, Esq
From
Herzog Law Firm
Health Care Proxy
• A Health Care Proxy is a legal document which
allows you to designate an Agent to make health
care decisions for you in the event you are
unable to make those decisions for yourself.
• The Health Care Proxy can be general and apply
to all medical decisions, or it can impose
limitations and spell out specific instructions for
your designated agent.
Living Will
• The Living Will can be combined with your health
Care Proxy.
• A Living Will is used to state your wishes regarding
your future health care. More specifically and most
frequently , your Living Will is used to express your
feelings about the withholding or the withdrawal of
life sustaining treatment.
• Regardless of whether your Living Will is combined
with your Health Care Proxy, it can and should be
customized to reflect your personal wishes.
Organ Donation
• Make sure that your Organ donation form works with the wishes
you have expressed in your Health Care Proxy, Living Will and
DNR.
• In New York. there are over 10,000 people waiting for an organ
transplant.
For Donors and Their Families
• It is always difficult to lose a loved one. Many grieving families
of organ donors can take comfort in the fact that their loss may
help to save or improve the lives of others.
• Registering to be an organ donor is a charitable act that costs
nothing. It allows a donor to save up to eight lives through organ
donation, and to save or improve the lives of up to 50 recipients
through tissue and eye donation.
Do Not Resuscitate (DNR)
• Where/When is an Out of Hospital DNR Order Valid?
• For any patient NOT originating from a hospital or nursing
facility including but not limited to:
– The patient's home
– A hospice
– A clinic
• What determines the validity of the Out of Hospital DNR?
• Merely the presentation of a signed Out of Hospital DNR form
(or a copy) or a DNR bracelet to the EMT.
• A good faith attempt to identify the patient.
• Out of hospital DNRs do not expire.
• May EMS providers accept living wills or health care proxies?
• A living will or health care proxy is NOT valid in the pre-hospital
setting.
Hospital & Nursing Home DNR orders
• Facilities are required to issue, review and maintain
DNR orders. EMS providers will honor hospital DNR
orders for patient transports originating from the
facility.
• The DNR can not be expired. The facility staff must
provide a copy of the order and/or patient's chart with
the recorded DNR order to the ambulance crew.
• Facilities, other than hospitals or nursing homes, are
encouraged to use the NYS-DOH approved nonhospital DNR Form as supplemental documentation to
avoid confusion and potentially unwanted resuscitation.
Medical orders for Life-Sustaining
Treatment (MOLST)
MOLST is intended for patients with serious health
conditions who:
• Want to avoid or receive any or all life-sustaining
treatment;
• Reside in a long-term care facility or require long-term
care services; and/or
• Might die within the next year.
• Completion of the MOLST begins with a conversation
between the patient and a trained health care
professional that defines the patient's goals for care,
reviews possible treatment options on the entire
MOLST form, and ensures shared, informed medical
decision-making.
Medical orders for Life-Sustaining
Treatment (MOLST) continued
• Under State law, the MOLST form is the only
authorized form in New York State for documenting
both nonhospital DNR and DNI orders. In addition,
the form is beneficial to patients and providers as it
provides specific medical orders and is recognized and
used in a variety of health care settings.
• In hospitals and nursing homes, the form may be used
to issue any orders concerning life-sustaining treatment.
• In the community, the form may be used to issue
nonhospital Do Not Resuscitate (DNR) and Do Not
Intubate (DNI) orders, and in certain circumstances,
orders concerning other life-sustaining treatment.
Power of Attorney
• A Power of Attorney is a legal instrument used
to delegate authority to another individual.
• You, the Principal, nominate an Agent and give
them authority to make financial and other
decisions for you.
• Most Powers of Attorney allow your Agent to
make decisions for you while you are competent,
your agent is required to act pursuant to your
wishes or in your best interest.
No Power or Attorney
or
Capacity to make one?
•
If individual does NOT have “legal capacity”
the agent/friend/family member will have to
petition the court for Guardianship of the
Individual
–
–
Article 17-A – Surrogate’s Court
Article 81 – Supreme Court
Article 17-A-Guardianship
• Article 17A is a broad based guardianship that covers
most decisions typically made by parents. This type of
guardianship is granted by county Surrogate’s Court
and can be obtained without the help of a lawyer.
• In New York State, everyone who turns 18 is
automatically assumed to be legally competent to make
decisions for themselves. Guardianship is a process by
which someone is appointed by a court to make
decisions for a person who is unable to make decisions
for themselves. In simpler terms, guardianship allows a
parent to continue making decisions that they made
prior to their child turning 18.
Article 81
• Article 81 is individualized and specifies exactly what decisions are
made by the person with a disability and what decisions are made by
the guardian. This type of guardianship is granted by the county
Supreme Court and generally requires a lawyer.
• The cornerstone of Article 81 is the concept of appointing a guardian
whose powers are tailored specifically to the particular needs of a
person with respect to personal care, property management, or both.
The appointment of a guardian must be found to be necessary
because the person is unable to meet their needs for personal care,
property management, or both. In deciding whether the appointment
of a guardian is necessary, the court must consider all the evidence
including the information and independent observations provided by
the court evaluator's report as to the person's condition, affairs and
situation, and the sufficiency and reliability of available resources.
Article 81
(continued)
• The court regards guardianship as a last resort and assesses the
advantages and disadvantages of alternatives to guardianship,
deciding on guardianship only when it clearly benefits the person
who is the subject of the proceeding and when the alternatives are
not sufficient or reliable to meet the needs of the person.
• The person must either agree to the appointment or be found by
the court to be incapacitated. There are two components to a
determination of incapacity:
– the person cannot adequately understand and appreciate the nature and
consequences of the person's particular inabilities; and
– the person is likely to suffer harm because of these limitations and the
inability to appreciate the consequences of the limitations.
• Even if all the elements of incapacity are present, a guardian should
be appointed only as a last resort and should not be imposed if
available resources or other alternatives will adequately protect the
person.
Agent to Control Disposition of
Remains
• While this may seem unnecessary to the majority of individuals, with the
increase of multiple marriages, same-sex relationships, and individuals
who are choosing co-habitation over legal marriage, the disposition of a
loved one's remains is increasingly being litigated.
• The Appointment of Agent to Control Disposition of Remains, similar to
a Health Care Proxy or a Living Will, designates the agent whom the client
wishes to carry out these matters. In addition, the statute provides that an
individual may give special directions such that she/he be cremated, that
their body be buried in a particular grave at a specified cemetery, or that a
particular funeral home handle the arrangements.
• Significantly, an individual will be able to revoke prior appointments and
advise the designated agent of his/her appointment. This is particularly
beneficial in divorces or second marriages. The designated agent is then
required to sign a document both accepting and assuming the
responsibilities of agent for this individual.
• Upon the client's death, the designated agent will be able to present this
legally-recognized document and ensure that the client's remains are
disposed of according to his or her special directions.
My Legal Checklist
• Important information about me
– My spouse
– My children
• Information about my Legal Documents
– Financial assets
– Other assets
People to notify in the event of my Death/Poor
Health
Thank you!
Questions?