Does my Health Care Agent need to be a member of my family?Absolutely no! While family members are the default decision makes for individual who do not make a plan for health care planning before they become disabled, the statute in no way favors family for the appointment of health care agents in their plan. While it is most common in our practice to see client appointing spouses, registered domestic partners, adult children, and siblings we also frequently see clients appointing friends, unmarried partners, and even professional fiduciaries to fill these roles.Reasons to appoint non-family members vary. Some clients do not have family. Others have family but they are distant from them either geographically or emotionally. They may have create families of choice that are different from their legal family but who are their true support system. Some just want to spare their family the burden of making end of life choices. Whatever the reason, an appointment of non-family members is always only allowed and frequently appropriate. We frequently encourage clients to look beyond family, particularly when the only possible family members are parents. Making the choice to end treatment for your adult child is difficult for a parent even when it is obvious to others that it is the choice the child would make if they could choose. It may be fairer to that parent to place someone else in the position of making that ultimate choice. If you would like to discuss options for your health care planning, schedule a consultation at 206-459-1908 or email@example.com.
NPR is doing a great series
on families dealing with the care of elderly family members. While the series focuses on a variety of legal, financial, and emotional issues, I was pleased to see their advice that families make their first step being setting up Durable Powers of Attorney with the help of legal counsel. I do find that the lack of those documents creates the most fundamental problems for families trying to deal with both long term planning and emerging crisis.
Yes. You can select as large a group of agents as you choose. Some clients choose to select all of their adult children to serve as their health care agents.
Many attorneys actively discourage their clients from selecting more than one agent at a time because it has the potential to make decision-making in crisis more difficult. If there is more than one agent serving at any given time than there is always the possibility that they may disagree and/or give conflicting instructions.
There are typically two solutions of to this problem. One is to pick an odd number of agents and allow a majority of agents in agreement to overrule a minority that disagrees. This allows for a relatively streamlined way for disputes to be settled. The alternative is to require consensus among all the agents for all decisions. The advantage of requiring consensus among agents is that it requires families to come to a joint decision and take joint responsibility for those decisions. Otherwise there is a risk that one agent for example, one your adult children may simply be out-voted about the decision to try a treatment method and may harbor resentment against the other agents or even blame them, instead of your health crisis, for your death.
Such resentments can, of course, still come up if you choose to make just one child an agent in the first place but, in our experience, they tend to be magnified if the minority opinion child has been given the agent role in the first place just to find that they are, in fact, powerless to make actual decisions. Resentments can also be magnified where one of the agents has always felt a bit ganged up on by the others such as a black sheep sibling. And it is almost always the child who is most geographically distant and/or emotionally distant from the parent who is the least likely to face the reality of a terminal illness or hopeless medical crisis. They have simply had less time and information to come to terms with the situation and have had the least time to say their good byes or to achieve the sort of emotional closeness that they had hoped would eventually come with time.
The disadvantage of requiring consensus is that it may take a while for the agents to agree among themselves or mediate their disagreement. During that time you may either not be getting treatment that the majority of your agents think you should get or be getting treatment that the majority think should have been suspended. In the end, it is possible that time, nature, and/or science may make the decisions for you while your family fights it out. In addition, if everyone must agree then everyone needs to be in the loop and probably at the treatment facility. For people whose agents have busy careers, competing family demands, or live far away that can become somewhat of a logistical nightmare.
We usually recommend that if consensus is required that it be the consensus of the agents present at the treatment facility in order to preserve some flexibility for the family. But that may result in someone getting left out of the loop and out of the decision-making. To a certain degree the decision about number of agents and methods of decision making may come down to how you balance in your own mind your desire to preserve family harmony and have everyone feel empowered in the process versus your desire to have your wishes respected or the best decisions made.
In our experience, it works best if you can select one agent to serve at a time. Other close family members or friends should, if possible, know who the selected agent is, and, if possible, have that choice communicated to them in as loving and affirming a way as possible. (For example by explaining that the choice was not based on a lack of trust or love for the other possible agents but selected was based on who was able to come to the most doctors appointments with you now so that they would be ready in a crisis or who has the most medical experience.)
Ideally all close family members should be given copies of your health directive as well so that they know what choice you have made and have an opportunity to process them and ask questions if necessary. You may also want to talk to your selected agent and communicate any desires you might have about how they should informally consult your other family members and even your willingness to have decision-making slowed down to allow people to come to consensus where possible if that is your priority. If you do decide that having more than one agent is what is best for your family, and frequently it is, you need to take extra care to draft an advance health care directive that will provide guidance. Relying on one person’s best judgment is hard enough. Relying on two people’s best judgment gets even more tricky.If you want assistance drafting a Durable Power of Attorney for Health Care that best meets your needs, contact us for a free consultation at firstname.lastname@example.org or tel. 206-459-1908.
While there are many special considerations in drafting advance health care directives for people over 65, the language of your durable power of attorney for health care will likely look very similar to one drafted for someone younger.
The main differences may be the considerations of the age and health of your agents. Often people select spouses, siblings or close friends of their own age to serves as their agent. That may still be the best selection for your first and perhaps second choices.
However, it is important to remember that as we age the chances of our developing dementia or suffering a stroke that limits our ability to update our plans statistically increases. That means that it may become difficult, if not impossible, to update your planning documents as agents in your own age group develop similar health issues.
If you have selected a parent or other older friend or relative, it may be time to make a replacement. It may also be time to add a second back up agent and to try to select some younger that you. It may be time to consider adult children, nieces or nephews, or children of close friends.
As with any selection of agents you should make sure that they are going to be willing to have a frank conversation with you about your wishes and will be available to serve in the role. You should also begin to more regularly review your documents so that you can make corrections if any of your selected agents pass away or develop health conditions that would limit their ability to serve.
It may also be time to start thinking about being more open with your agents about your health than you might have been in the past. If you are primarily relying on adult children to serve as your agent, you may need to start sharing health information that you would otherwise choose to keep private. Without solid information, too often children have an unrealistically rosy view of their parent’s health and that may lead them to make less than ideal choices if a crisis strikes and they have been out of loop.
Yes! It is common to think of a durable power of attorney of health care as something only needed as people get older and face chronic health problems. But the truth is that, for the young, temporary disability is the crisis they are mostly likely to face and one most in need of proper planning. Statistically, if you are under 65 years of age, you are six times more likely to become disabled than to die.
The young can face life threatening illness such as cancer that often involve periods of treatment that may necessitate others making medical choices for them and that can come out of the blue. They are also the age group most likely to be in accidents such as car accidents or sports accidents that can render them unconscious and in need of medical care. Even an eighteen year old who has left home to attend college can very easily find themselves in a car accident or in a serious sports injury. Therefore it is important that the young and healthy consider taking the time to prepare a Durable Power of Attorney.
Moreover, as they do the planning they should think of the decisions and decision makers they would want now, not merely when they are old and chronically ill. We usually recommend that our younger clients draft their documents with an eye to decisions that they would want made over the next ten years if they were in an accident or struck with a sudden illness. We remind them they can and should review their documents and make changes as they grow older and/or are diagnosed with a serious illness.
Once you have taken the step of choosing your Health Care Agent, you need to make sure that selection is properly documented. Washington has several statutes that govern how you can document this choice. (See RCW 7.70.065; RCW 11.94.010-RCW 11.94.900.)
The document that you use to document this choice is something called a Durable Power of Attorney for Health Care Decisions. (“DPOA for Health Care”)
A good DPOA for Health Care will name your selection of Health Care Agents, including your choices of successor Agent. If you chose to have more than one person serve as an agent, you will need to include how you want decisions to be made.
If you are asking for someone to serve as a temporary agent, the criteria for the transition from temporary agent to permanent agent should be spelled out. An attorney familiar with disability planning can give talk to you about the pros and cons of various arrangements that might be possible.
If you wish your agent to consult your Health Care Directive or with any other family member or friend, that should also be documented.
A good DPOA for Health Care will spell out what specific powers you are granting. Powers that will typically be seen in a good DPOA for Health Care include: power to give informed consent to allow or withdraw treatment, access to medical records, ability to disclose medical records, employ health care personnel, grant releases, determine residence, summon emergency treatment, provide companionship, and provide advance authority for autopsy, funeral arrangements, and organ donation. These powers should not be included if they are not ones that you are ready to entrust to the Agent. An Attorney familiar with disability planning can discuss with you the implications of including or not including any of these powers.
A good DPOA for Health Care will also include a nomination for who should serve as the legal guardian of your person, an extremely powerful role, the need for which will hopefully be eliminated by your DPOA for Health Care. Because a guardian, if one is assigned, will take precedence over your Health Care Agent in making health care choices for you, failure to nominate your Agent as Guardian may create a temptation for other friends or family members to attempt to be assigned as Guardians if they disagree with the choices the Agent is making leading to the kind of conflict a disability plan is designed to avoid.
One relatively new issue for DPOA for Health Care is to make sure the language of the DPOA is in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It is possible that if such language is not in your DPOA, a doctor or hospital may not be able to share medical information with your Agent making it impossible for them to do their job. While all DPOAs drafted after 1996 should have contained such language, the unfortunate reality is that some practitioners relied on old forms and did not make the necessary changes for many years. If you have a current DPOA and it does not make specific reference to HIPAA, we recommend that you have an attorney look at the DPOA to make sure that it is compliant.
If you would like help selecting your Health Care Agent or crafting a Durable Power of Attorney, please call or email now for a free half hour consultation to see if our services are right for you. Tel. (206) 459-1908 or email@example.com
or attend one of our free classes.
Phinney Estate Law added some additional phone lines yesterday to provide better access to clients. Unfortunately, technical problems led to our having no phone service for much of yesterday and early this morning and the possibility of lost voicemails left during that period. If you called yesterday and couldn't get through, we apologize. If you left a message and haven't heard back from us yet, please call back! Thanks.
Resa Raven v. Department of Social & Health Services
(Washington State Court of Appeals Division 2, March 27, 2012), is a sad case that highlights in many ways the limits of guardianship to resolve care issues for seniors. The case involves the neglect and death of senior under the care of a professional guardian.
The senior, referred to in the case only as Ida due to privacy issues, became bedridden after a fall in 1996. Her condition declined and became complicated by dementia that lead her to believe that family members who were providing care were imposters. Ida was uncooperative with care and evidence suggests that her family were unable or unwilling to properly administer pain medication and other care. After numerous reports and a prior inconclusive investigation, in 2204 APS filed for guardianship and Resa Raven, a certified professional guardian was appointed as her limited guardian. ”The trial court gave Raven authority to (1) consent to or refuse medical treatment and (2) decide who would provide care and assistance.”Raven served as her guardian for 20 months. Based on her historical and ongoing refusal to nursing home placement, Raven attempted to have her cared for at home. Ida's refusal to cooperate with care along with doctor who quit and care agencies that lack staff to provide sufficient hours of care or who were unwilling to cooperate with orders for more regular turning lead to a further decline in health. In the Winter storm of 2006, Ida was left unattended and declined further and died after a brief hospitalization.After Ida's death DSHS charged Raven with neglect
under the Abuse of Vulnerable Adults Act, RCW ch. 74.34
The Court of Appeals described Raven’s duty to Ida: A court-appointed guardian owes a duty of care to her ward. RCW 11.92.043(4). Specifically, a guardian has a duty “to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person’s freedom and appropriate to the incapacitated person’s personal care needs, [and to] assert the incapacitated person’s rights and best interests.” RCW 11.92.043(4).The court acknowledged Raven's duty "did not include guaranteeing effective care and treatment"
but did include making every reasonable effort to provide the care Ida needed. Raven argued that because the law does not allow involuntary detention in a residential treatment facility and mental health evaluators had refused to find Ida qualified for involuntary commitment she had not breached any duty. The court found in "failing to aggressively pursue transitioning Ida from home care to residential care, Raven was not balancing Ida's wishes against her medical needs." The court appears to suggest that Raven's obligation was to convince Ida to go into residential care, find adequate in home care, or "step aside" and allow a more experience guardian to be appointed.The decision made it clear that in negligence cases under the Vulnerable Adult statute it was not necessary to prove the neglect lead to the harm finding
that the Act requires DSHS to prove a pattern of conduct resulting in a deprivation of care. But it plainly does not require DSHS to prove that such pattern of conduct caused Ida harm or that if Raven had offered an alternative care plan, Ida would have accepted it.. and that the standard was a mere preponderance of the evidence.
There is much about Raven's handling of the situation that is problematic. She was not making regular visits to Ida to fully assess the seriousness of the situation and try to convince Ida to reconsider residential care. She did not make efforts to find staff to fill all of the care slots funded by DSHS when the care agency had inadequate staff to work all funded shifts or replace doctors and nurses that quit or replace health care workers who refused to comply with hospice orders on care because they disagreed with them. But she also ran up against many problems that plague even the best of guardians. Guardianship does not give the guardian the power to force a ward into residential care and many wards refuse to consent even when the issue is aggressively pursued. Good in home care can be difficult to find or prohibitively expensive for wards who require round the clock care. It is not uncommon for workers, facilities, and even doctors to refuse to continue to work when resources dry up, families are difficult, and wards are uncooperative and the guardian has little control over any of those factors.
The courts response to these very real structural problems with our society's resources and systems of care for the aging is to "agree that Ida’s case presented difficult problems. . . . [which] frustrates the very purpose of her appointment as Ida’s guardian. When Raven reached the conclusion that obstacles were beyond her control, she should have stepped aside.
"While every professional who works in the realm of guardianship hates to see a ward this vulnerable receive this little care or attention with this tragic result, we also need to recognize that there may be cases, even with the best of professionals, without good answers. Everyone stepping aside may simply leave no one responsible and even less care for the ward. We regularly see cases where facilities, family, and friends seek a guardianship to try to force their loved one into residential care when they refuse. It is often our job to explain that guardianship doesn't give them that power although it may give them more tools, such as financial control, to influence the ward. With this case, we will also need to explain that if those tools don't work and a good in home plan cannot be created, they may need to step aside or face claims of negligence.
In many of these case what is needed is a plan to get the ward, if possible, to agree to care and get people in place with the legal authority to implement the plan. That may not always be guardianship and may be best pursued through ADR outside the courts.Another good take away message from the case is that guardians, when appointed, need legal representation. In this case Raven was advised by the court to seek legal representation to address the issue and declined. An attorney might have been able to assist her in petitioning for instructions from the court on how to overcome
the challenges she faced, documenting her attempts to get Ida care, and ultimately helping her to resign if no solution could be found. There are many volunteer family guardians operating without legal representation with even less access to community resources and understanding of their legal rights and obligations. That may be unwise. Assuming the duties of a guardian is not a small step and I think all guardians need some assistance from an attorney. Failure to get help when needed can lead to legal liability for them and inadequate care for their ward.If you would like to set up a consultation to discuss options for caring for a declining loved one or are a guardian needing representation to protect you and your ward, contact us at firstname.lastname@example.org or call us at (206) 459-1908.