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What about End of Life Decisions?
I. HEALTH CARE DECISIONS (When you cannot speak for yourself) As long as you are awake and able to decide, you have the right to control your own health care. If you are able to make decisions, your doctor will discuss treatment plans with you and you choose what plans, if any, to implement. If, for any reason, you become unable to express your wishes for healthcare, the Advance Healthcare Directive allows your physician and family members to know your healthcare decisions. If recovery from a severe medical problem is not likely, some patients do not want the burdens of continued treatment. With the Advance Directive, you can choose to accept or refuse life-sustaining treatments. As an example, some people do not want medical treatment if they become very near to death. Others may want no treatment if they can no longer recognize friends or family, because of severe mental deterioration. With the Advance Directive, you have the ability to choose to maximize the length of your life or request that treatment focus on your comfort. Even if you choose to discontinue life support or tube feeding, this does not mean you will be abandoned. Everyone has a right to care that ensures comfort, cleanliness and dignity. As an example, you will get medications to reduce pain and you will be offered food and fluids by mouth, kept clean and warm and your privacy will be respected. You do not have to fill out an Advance Directive. If you do fill one out, your healthcare decisions will be respected. In the Advance Directive, you will appoint a healthcare representative to act for you. You should select the person you want and trust to discuss your healthcare with your physician or physicians. Although it is not required, you should also name an alternate representative, in case your first choice cannot or will not act for you. The healthcare representative should read the Advance Directive carefully and discuss your wishes with you. Your healthcare representative will be standing in your place, discussing your healthcare plan with the doctors. It is important the he or she knows your desires. If you are comfortable that your healthcare representative will make decisions in your best interest, then you do not need to complete Part C of the Advance Directive. Part C is the healthcare instructions. The healthcare instructions deal with specific situations regarding end-of-life decisions. Those include: whether or not you desire tube feeding in situations such as being close to death, or unconscious with little likelihood of becoming conscious again or being in the advanced stage of a progressive illness. Frequently people who have strong feelings about this choose the catchall which is I do not want my life to be prolonged by life support. I also do not want tube feeding as life support. I want my doctors to allow me to die naturally. If my doctor and another knowledgeable doctor confirm I am in any of the medical conditions listed described above. Life support refers to any medical means for maintaining life, including procedures, devices and medications. If you refuse life support, you will still get routine measures to keep you clean and comfortable. One sort of life support is food and water supplied artificially by a medical device known as tube feeding. The Advance Healthcare Directive also allows you to insert special instructions or limitations regarding your health plan. The Advance Directive must be signed in front of two adults, as witnesses. In addition, your healthcare representative and alternate healthcare representative must read your Advance Directive and sign and date at the end of the Advance Directive. Once the Advance Directive is completely signed, you should give copies to your physician and the hospital you would most likely go to, to be kept in your patient file. In addition, your healthcare representative should have a copy. Your Advance Directive may be revoked at any time. If you revoke it or sign a new one, send a copy of the revocation or the new one to the same people that have the original Advance Directive. You can obtain Advance Directives at most healthcare facilities. Most attorneys will also offer them for free if you want to fill them out or for a reasonable fee. II. HEALTH CARE DECISIONS (End of Life Treatment) The Physician Orders for Life-Sustaining Treatment or what are called POLST forms represent a person’s wishes to a physician or nurse practitioner for specific written medical orders. As you can see they are bright pink. The POLST form asks for information about your preferences for resuscitation, medical conditions, the use of antibiotics, as well as artificially-administered fluids and nutrition. The POLST form helps you and your doctor discuss and develop plans to reflect your wishes. It also assists your physician and emergency personnel in honoring your wishes for life-sustaining treatment. The POLST form directs appropriate treatment by emergency medical services personnel. The POLST must be signed by your physician or nurse practitioner in order for it to be a medical order that is understood and followed by other healthcare professionals. The POLST and the Advance Healthcare Directive work together. For instance, the healthcare representative appointed by the Advance Directive can complete the POLST form. You should keep your POLST form in a prominent location such as on your refrigerator. If you live at a long-term-care facility your POLST will be kept in your medical chart along with other medical orders. III. COMPETENCY A person is considered competent if the person possesses the requisite physical, mental, natural or legal qualifications to make decisions for themselves. To be competent, one must be legally fit. It is very seldom that a person is competent one day and not competent the next. Competency is a sliding scale. Even a person with moderate- to severe- dementia can have what are termed lucid intervals, that is to say they have moments of lucidity when they can make decisions for themselves and fully appreciate the consequences of those decisions. As a practical matter, a person may not be legally competent, however, they can still manage their day-to-day activities. As I mentioned, the legal definition of competency is having sufficient capacity, ability or authority, possessing the requisite physical, mental, natural or legal qualifications. For instance, to be competent to sign a will, a person must understand:
If a person is signing a will or trust, it is up the witnesses of the will or notary public on the trust to determine if the person has the requisite competency, based on the four factors I just mentioned. If a person is not competent to manage their own affairs or make decisions in their own best interest, someone else must determine whether they are legally incompetent. Often times, a trust will allow the successor trustee to act if the initial trustee is incompetent, based on a written notice from the trustee’s physician. It may also be necessary to petition a judge to make a Determination of Competency. IV. SOLUTIONS TO LACK OF COMPETENCY There are ways to plan for, or at least be prepared for a person’s lack of competency. The first is a Power of Attorney. With a Power of Attorney, the principal appoints an agent or Attorney-in-Fact to take care of the necessary financial, banking, tax, legal and other matters in the event that the principal is unable to do so. A Power of Attorney can be made very broad or tailored to specific areas of need. The Power of Attorney is an extremely important document that entrusts the agent with authority to take care of the principal’s affairs. The Power of Attorney must be notarized. Since a Notary Public must make a Determination of Competency before he or she will notarize a document, a Power of Attorney is not available if a person is already incompetent. Your attorney can prepare a Power of Attorney form for you. Again, if you want the Power of Attorney to specifically spell out what the agent can and cannot do, you should discuss this with your lawyer. You can also obtain form Powers’ of Attorney at some stationary stores or at banks. Banks and Brokerage Firms oftentimes have their own financial Power of Attorney forms that are specific to their company. It is important that when you sign a Power of Attorney, you know exactly what you are and are not delegating to the agent or Attorney-in-Fact. Also, you should understand that unless you somehow provide otherwise, the Power of Attorney becomes effective immediately upon your signing it. Most Powers of Attorney are designated as a Durable Power of Attorney, under Oregon law, that means it will remain effective even though the principal may become incapacitated or incompetent. Another way to plan for the possible loss of competency is the create a trust. As with the Power of Attorney, a trust agreement can define exactly what the agent, in this case, a trustee or successor trustee can and cannot do with the trust assets. Also, as with the Power of Attorney, a trust is not available if the settlor or trustor, the person establishing the trust is not competent. Again, you should consult with an attorney to discuss whether or not a trust is necessary (which I will discuss later) and exactly what the purpose of the trust is. As with the Power of Attorney, oftentimes, banks and financial planners will have their own form of trust. A word of warning to filling out a financial trust is that it is seldom tailored to meet your specific needs. A trust must be properly funded in order to work correctly. Simply setting up a trust is not often enough to prepare for incompetency. In order for the trustee to have authority to transfer assets, all titled property such as vehicles and real property must be transferred to the trust. In addition, any financial accounts at banks or brokerage funds must also be transferred into the trust and those institutions will want copies of the trust for their files. Trust agreements also are effective across state lines. This is particularly useful for people who own real property in different states. While a Power of Attorney is generally a relatively simple and inexpensive document, trusts can be extremely complex and are usually expensive, typically from $750.00 to thousands of dollars to set one up. Trusts can be very useful to deal with competency issues and distribution of estate assets upon death. As many of you may have already heard, if a trust is properly funded and if it is desirable, the use of a Revocable Living Trust can help one avoid probate. Now I want to talk specifically about some incompetency definitions and what happens if a person does not adequately prepare for incompetency. Protective proceedings are cases where a person is either financially incapable or incapacitated or both. If the person has not adequately prepared for these things then the burden usually falls on the family to take care of the person and his or her belongings. V. DEFINITIONS Incapacitated - A condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety. “Meeting the essential requirements for physical health and safety” means those actions necessary to provide the healthcare, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur. VIII. SOLUTIONS TO LACK OF COMPETENCY If a person is deemed to be incapacitated as defined previously, a Guardianship may be necessary. This may be the case even if a person has prepared an advance directive and Power of Attorney because the guardian will sometimes have to make decisions that are in conflict with a person’s desire, for instance to stay at home when it is no longer safe for that person to live at home alone. A Guardian may be appointed for an adult only when “necessary to promote and protect the well-being of the protected person”. In our office we try to tailor Guardianships to protect people without interfering in their own decision making any more than is absolutely necessary. Again, competency is a sliding scale and people oftentimes do not need a broad guardianship. The Guardianship must be designed to encourage the development of maximum self-reliance and independence of the protected person and may be ordered only to the extent necessitated by the person’s actual mental and physical limitations. In order for a Court to appoint a Guardian for an adult, the Court must determine by clear and convincing evidence that the person is incapacitated, that the appointment is necessary to provide continuing care and supervision of the person, and that the person nominated is qualified and willing to serve as Guardian. In addition, a Guardianship case from last year requires that the following three conditions be proven in order for a petitioner meet his or her burden of proving incapacity:
The court said, “The key in this analysis is the nexus between the inability to process and communicate information, on the one hand, and the inability to perform essential functions, on the other. For a judge to order a Guardianship, he or she must find by clear and convincing proof that there is a causal link between a severe cognitive or communicative impairment and a life-threatening disability.” A Guardian has the following powers and duties: Unless limited by the Court, the Guardian has custody of the protected person and may establish that person’s place of abode, in or out of Oregon. The Guardian must provide for the care, comfort, maintenance and when appropriate the training and education of the protected person. The Guardian must take reasonable care of the protected person’s clothing, furniture, and other personal effects, unless a Conservator has been appointed. Subject to the provisions of an Advance Directive, the Guardian has the power to consent or refuse consent to healthcare for the protected person, with the qualification that the Guardian is not liable for injury to the protected person solely by reason of consent. The Guardian also takes upon himself or herself a great deal of responsibility. The Guardian stands in a fiduciary and trust relationship with the protected person and will be held to high standards in the exercise of the Guardian’s powers and duties. Oftentimes, adult children become Guardians of their parents. This is essentially a role reversal, because now the child is making decisions for the parent. The one difference is that Guardians are not financially responsible for the protected person. Before placing the protected person in a mental-health facility, nursing home, or other residential facility, the Guardian must file a statement with the Court informing the Court of that intent. The Guardian must also provide that Notice to the protected person and other interested person, usually the protected person’s immediate family. The protected person has an opportunity to object and be heard in Court, if he or she does not feel that such a move is in his or her best interest. A Guardian for an adult-protected person must file a report, the form of which is set forth in the statute, within thirty (30) days after each anniversary of appointment. In the Guardian’s report, the Guardian typically discusses where the protected person is currently living and some of the programs and activities the person engaged in. The Guardian also reveals any payment made pursuant to the Guardianship. Any major decisions made during the term of the report and a general statement regarding the protected person’s condition. |
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Disclaimer: The information contained in pages found at www.broesderlaw.com are publications of Arant &
Broesder, LLC for general purposes only and should not be construed as legal advice or legal opinion on any
specific facts or circumstances. If you have specific legal questions, you are urged to consult your own
lawyer concerning your own situation.
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