2010 LegalHealth

End of Life: Taking Control of Practical Matters

April 28, 2012

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LegalHealth

LegalHealth was founded in 2001 with a mission of providing free legal services to individuals with serious and chronic illness in the health care setting to ensure that their basic needs for food, shelter, medical care, financial stability and safety are met. LegalHealth is a division of the New York Legal Assistance Group, a nonprofit law office.

LegalHealth is funded through private foundations and its hospital partners. We are on site in 17 NYC area hospitals and health clinics and also work with community based organizations. In 2009 we served more than 3,800 clients, 600 of whom were people with cancer, and trained 1,500 health care professionals.

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Objectives

• Discuss parameters of consent for medical treatment and legal issues that arise

• Provide overview of advance planning

– Health Care Proxies

– Living Wills/DNRs

– Powers of Attorney

– Wills

– Guardianship

– Trusts basics

2010 LegalHealth

Basic Concepts

• Most state laws presumes a person is competent and that a competent person has the right to consent to health care treatment and the right to refuse treatment

• Informed consent means the individual understands and appreciates:

- the nature and consequences of the proposed treatment

- the risks and benefits of the proposed treatment and alternative treatment

- who will provide treatment

• Determination of ability to give informed consent for healthcare decisions is made by healthcare providers.

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2010 LegalHealth

Advance Directives for Health Care

• Advance directives are documents executed in advance and effective upon incompetence to protect a person’s right to decide what medical care they should receive.

• Types of health care advance directives:

– Health Care Proxies

– Living Wills (Medical Directives)

– Do Not Resuscitate Orders (DNRs)

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Health Care Proxy

• Health Care Proxy allows you to name an agent to make health care decisions for you if you become incapacitated.

• State laws vary regarding requirements for valid Health Care Proxy

• For example, New York, requires two witnesses. Some states require a notary.

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Capacity to Execute a Health Care Proxy

• The proper execution of a health care proxy requires that the person have sufficient mental capacity to understand the purpose and implications of the document.

• Capacity for executing a health care proxy may not be the same standard a physician would use in determining capacity.

– A person’s capacity may change from day to day, or over the course of a day, depending on the nature of their illness, fatigue and the effects of medication.

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Role of Agent Named in Health Care Proxy

• Once authority commences and the doctors have determined that the principal is incapacitated, the agent steps into the shoes of the principal. Agent’s authority may be limited by language in the proxy or by the principal’s wishes as stated in a living will.

• An agent can:

– Consult with doctors

– Bring in a doctor for a second opinion

– Examine the principal’s medical records

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What if I don’t have a Health Care Proxy?

• Many states have surrogate decision making laws

• In New York, i.e., a surrogate decision maker can be chosen in the following priority: spouse, adult child, parent, adult sibling, close friend. Limited to hospitals and hospice.

• The surrogate is the person highest on the list who is available, competent and willing to make the decision.

• The surrogate must make decisions in accordance with the patient’s wishes or, if not known, their best interests.

• If none, may require a court appointed guardian

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Important Points

• You should provide your agent with clear guidelines about your preferences regarding your health care treatment

• Discuss your views and values with your physician and your family

• Your agent is obligated to advocate for your wishes, not decide what he/she thinks is “best” for you!

• You should chose an agent who is willing and able to meet this challenge

• Always appoint a successor agent

• Make sure your agent is alive and willing to serve

• Always check your state law requirements!

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Living Will

• A statement of one’s wishes with respect to one or a number of end potential of life medical care decisions.

• Can serve as guidance to health care agent, surrogate and health care providers

• State laws vary. New York does not have a statute regulating living wills, but New York State courts have recognized living wills as a binding expression of a patient’s wishes.

– Only valid for the medical situations it addresses

– No lawyer needed to fill out form

– Has to be witnessed by two adults

2010 LegalHealth

Do-Not-Resuscitate (DNR) Orders

• State laws vary regarding both hospital and “non-hospital” DNR orders.

• DNR orders affect only cardiopulmonary resuscitation (CPR).

• Based on the right of every competent adult to refuse life-sustaining treatment such as CPR.

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DNRs (cont’d)

• If there is a health care proxy, then the health care agent has authority to make decisions about all medical treatment, including CPR, unless the proxy form states otherwise.

• The health care agent must decide in accordance with the patient’s wishes or, if those wishes are not known, in accordance with the patient’s best interests.

• Many states have a surrogate list for DNR

• Always check your state law requirements!

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2010 LegalHealth

Power of Attorney

• A form that allows an individual to name an agent to handle their personal affairs during their lifetime, including banking, real estate and other financial matters.

– The authority designated in a Durable Power of Attorney continues after a person becomes disabled or incompetent, but not after the person dies

– The form generally needs to be notarized, agent must sign and accept responsibilities to make it active

– A power of attorney does not cover health care issues

• If executed while someone is competent, a power of attorney can often avoid the need to have a guardian appointed once that person becomes disabled.

• Takes effect immediately unless “springing”

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WILLS

• Definition of Will vs. Living Will

• Why is a will needed:

• If no will, property passes pursuant to state law

• State chooses administrator and property passes by law

• Wills must comply with state requirements to be valid

• About 50% of states allow holographic or hand written wills (with an exception for active military service)

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What Is A Will

• A document in which a person specifies how her property will be distributed upon her death

• Must be competent to execute and free of undue influence

• In some states, cannot disinherit spouse

• You decide where your property goes instead of state law

• Able to specify desires for guardian of minor children

• Provide income plan for children or adults incapable of handling money (trusts)

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Property that does not pass under a will

• Pensions and retirement plans with designated beneficiaries

• Life insurance if beneficiary named

• Joint ownerships with rights of survivorship

• Certain bank accounts; joint, in trust for, payable on death

• If no beneficiary named, estate becomes beneficiary upon death

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WILLS

• Keep in a safe place but not a safety deposit box

• Make sure your executor knows where to find your will

• Never mark or write on your original will after execution

• Never modify or unstaple a will after execution

• Wills can be revoked or redone

• Codicils for minor changes

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Advance Planning Regarding Children

• Guardians for minor children

– Expressed in will:• indication of preference – judge will decide in best interest of

child

• have discussions with guardian to make certain they will proceed

– Standby Guardian-varies by state:

• named while parent is alive

• NY gives 60 day window after death for guardian to act

• guardian must undertake court action

• possible to put guardian in place prior to death (judicial petition)19

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Do I Need A Trust?

• Living trusts and testamentary trusts

• May be revocable or irrevocable

• Does not replace a will

• Avoids probate of certain assets

• Supplemental needs trusts to maintain government benefits

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Contact LegalHealth

For more information visit our website www.legalhealth.org

Debra Wolf(212) 613-5082