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Presenting a live 90-minute webinar with interactive Q&A

Elder Care Incapacity Planning:

Advanced Directives and POLSTS, POAs,

Controversial End-of-Life Healthcare Decisions

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, SEPTEMBER 20, 2017

Paul Black, Partner, Georgia Elder Law of Brannon Black, Atlanta

Misty Clark Vantrease, Esq., Kentucky ElderLaw, Louisville, Ky.

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Elder Care Incapacity Planning: Advanced Directives and

POLSTS, POAs, Controversial End-of-Life Healthcare Decisions

September 20, 2017

Presenters

Misty Vantrease Kentucky Elderlaw, PLLC Louisville, Kentucky misty@kyelderlaw.com (502) 581-1111

Paul Black Georgia Elder Law of Brannon Black, LLC paul@georgia-elderlaw.com (770) 854-0688

Presentation Topics

What are the key factors to consider when helping a client execute a Power of Attorney? How can solidly drafted Advanced Directives facilitate the implementation of a well-designed long-term care plan?

When should clients consider the use of POLSTs, and how effective are these documents? How are state legislatures and courts addressing controversial topics in healthcare decision-making such as voluntarily stopping eating & drinking (VSED) and physician-assisted suicide? What about speech by groups who support a patient taking his or her own life?

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Durable Powers of Attorney

• Legal basis for a Power of Attorney is determined by state law.

• Some states (see map) have adopted the Uniform Power of Attorney Act (UPOAA).

• Other states-Kentucky, for example- have not and the law is a simple statute that is in the process of being reformed.

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Durable Powers of Attorney: Basic Terminology

• Signer - Principal

• Holder - Agent or Attorney-in-Fact - but generally just called the power of attorney

• Durable - Still effective after the loss of capacity.

• In the world of elder law, a POA would be useless without durability statement!

9

Durable Power of Attorney

• A Durable Power of Attorney allows the Principal’s Attorney-in-fact to handle his financial affairs

• “Durable” means that it stays in effect even if you become incompetent

– Example of Statutory language: "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time"

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Durable Powers of Attorney: Death of Principal; Reasons to Record

• The Power of Attorney ends at the moment of death. No one can act on behalf of the deceased until an executor/administrator/personal representative is appointed.

• If you want to know if the document presented is the most recent Power of Attorney, check the county clerk’s (deed recorder’s) Web site. The Power of Attorney may be filed there, but it is not required.

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Durable Power of Attorney: Immediate vs. Springing POAs

• Immediate – goes into effect as soon as it is signed.

• Springing – “springs” into effect at some point in the future

– Controlled by document language

– May specify the conditions making it effective and the person(s) or institution responsible for making the determination

– If it does not specify, it is effective upon a written determination by 2 licensed physicians that the principal is “unable, by reason of physical or mental disability, to prudently manage or care for the principal's person or property, which written determination shall be conclusive proof of the attorney in fact's power to act pursuant to the power of attorney.”

• If it is springing, make sure it has sprung into effect before someone tries to use it!

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Durable Powers of Attorney: Drafting Tips

• Tip: One person should be named as the Attorney-in-Fact, but also name an alternate – someone in case the first choice is unable or unwilling to serve.

• Tip: The document should state that copies are as good as originals.

• Tip: The document should allow: changes in insurance beneficiaries, retirement plans and so on, in addition to the more common use of handling bank accounts 13

Durable Power of Attorney: What Powers Does the Principal Retain?

• You do not give up any control when you sign a Power of Attorney. You can still handle all of your financial affairs

• The person you name has no authority over you, can never tell you what to do or where you must live

• If you are in a hospital or nursing home, they have No Authority to determine who visits you or whether family members can take you out for visits unless the document states otherwise. 14

Durable Powers of Attorney: Summary of Key Provisions

• Statement of Durability

• Photocopy as Valid as Original

• Effective Date – When Signed

• Third-Party Reliance

• Protective Proceedings

• Power to make Gifts

• Specimen Signature

• No authority to agree to binding arbitration 15

Durable Powers of Attorney: Choosing An Agent

• Typically, a trusted family member with no history of theft, not in financial distress, competent, not subject to undue influence by other family members, younger and likely to outlive the principal

• Name one person at a time, and at least one alternate.

• The POA may be difficult to use with multiple parties named, regardless of language used.

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Bank Accounts: Basic Considerations

• A bank account with two names connected with the word “or” means either party has full access to the account.

• A bank account with two names connected with the word “and” means both parties must act together to complete the transaction.

• This rule is often ignored for routine bank transactions.

• So - do not have accounts with someone you do not trust with your money!

• An Attorney-in-Fact (POA) can act with either type of account to the same extent as the Principal.

17

Capacity: What Does It Mean?

An adult is legally presumed to have capacity to make her own decisions about her health and safety until a probate Court finds that person lacks capacity, and names a Guardian.

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When Does Someone Lack Capacity?

Example from Georgia Law:

O.C.G.A. 29-4-1. (a) The court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.

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Working With a Client with Diminished Capacity: The ABA Model Rule

(a) Client-Lawyer Relationship Rule 1.14 Client With Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

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When Does Someone Have Capacity to Sign a POA?

[A] client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. It is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. (Rule comment)

Citation: Comment on ABA Model Rule 1.14 (Client With Diminished Capacity)

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The ABA Model Rule on Working With A Client With Diminished Capacity

Client-Lawyer Relationship Rule 1.14 Client With Diminished Capacity (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

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Testamentary Capacity and Contractual Capacity

• The threshold for competence is not very high.

• TESTAMENTARY CAPACITY: For signing Wills, the applicable standard is often the lucid interval standard (as in KY). Mom needs to know what she is doing when she is doing it, but does not need all the skills necessary to function independently and does not need to remember what she has done.

• CONTRACTUAL CAPACITY: For a Power of Attorney, the standard is the ability to contract. The courts are looking at the individual’s ability to understand the nature and effect of the act and the business being transacted. 23

Does A Diagnosis (Like Alzheimer’s Disease) Mean that Someone Lacks

Capacity? • No! A diagnosis of dementia or Alzheimer’s

disease, (a form of dementia) does NOT mean the person lacks the legal capacity to execute documents.

• Dementia has many stages. A person with early-stage dementia may hold a thirty-minute conversation with you on a range of subjects and seem to be in perfect cognitive health to the untrained ear.

24

What Factors Should An Attorney Consider in Weighing Client Capacity?

Comment on ABA Model Rule 1.14 (Client with Diminished

Capacity)

In determining the extent of the client's diminished capacity,

the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a

decision, variability of state of mind and ability to appreciate

consequences of a decision; the substantive fairness of a

decision; and the consistency of a decision with the known

long-term commitments and values of the client. In

appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

25

POA vs. Guardianship

• A POA is a voluntary act by a competent adult done in the privacy of a law office, and avoids government entanglement.

• A Guardianship is a legal proceeding whereby a person is stripped of most or all of their legal rights.

• It is necessary but unpleasant process, sometimes requiring a jury trial (as in Kentucky) and continued court supervision or government monitoring, and should be avoided if at all possible.

26

What Is Guardianship?

• A guardianship is a drastic step that strips the Ward of his legal rights to make decisions for himself. Rights lost include determination of where one lives, how one lives, how one’s money is spent and what medical care is needed.

• The best way to avoid most guardianships is to have a good Power of Attorney and Health Care Surrogate

27

What Is A Guardianship? (Continued)

• A guardianship is a legal relationship between a capable adult, the Guardian, and a Ward, the person who has been determined to be legally disabled

• Legal disability in KY is determined by a jury. However, in all other states it is determined by a judge with an option for a jury trial, if requested in some states.

• A doctor, social worker, neighbor, or adult child has no authority to declare a person legally disabled or incompetent.

28

Guardianship is typically used when:

• A person is unable to handle his or her financial affairs and/or is at risk of financial exploitation;

• Is unable to handle personal affairs such as nutrition and hygiene, but resists or rejects any help;

• Is a danger to self and/or others but does not recognize the risk.

29

When Is Guardianship Used?

Guardianship

• Guardianship is controlled by state law

• Every state and every county handles guardianship a little differently

• If this is your first time filing a guardianship petition in a certain county, talk to your local district court clerk! 30

• The Petitioner is the person who starts the process by filing a Petition To Determine If Disabled

• Any person may file a Guardianship Petition

• The Petitioner is often the person who wants to be guardian, but the Petitioner and person asking to be Guardian may be different parties

• A Petition may ask that the State be Guardian, or that an organization who will get paid be Guardian if the Ward has money

The Role of the Petitioner In A Guardianship Proceeding

31

The Respondent/Proposed Ward In A Guardianship Proceeding

• The Respondent is the person for whom a Guardianship is requested.

• If daughter files to be Mom’s Guardian, daughter is the Petitioner and Mom is the Respondent.

• If the Guardianship is approved, the legal proceeding is over and Mom is now the Ward

• Filing may be an innocuous process, or start a family war.

32

The Importance of the Narrative In the Guardianship Petition

• The prosecutor, the judge, the attorney for the respondent and all the professionals appointed to evaluate the respondent read the petition.

• Therefore, tell your story in the Petition!

• This is your best chance to show that people are stealing from the Respondent/Proposed Ward, that she has been diagnosed with dementia, she just set the kitchen on fire and she roams the neighborhood in her underwear, etc.

33

Attorney for the Respondent

• An Attorney for the Respondent is a court-appointed attorney representing the Respondent (Mom) in the Guardianship proceeding

34

Prosecutor of “the Case”

• The County Attorney presents the State’s case against the Respondent in some states.

• Petitioner’s attorney, if any, may be a spectator until the proceeding is complete and a jury (or judge in any other state but KY) has declared that a Guardian or Limited Guardian is needed in many cases.

35

Full vs. Partial Disability

• A Partial Disability is where a jury (or judge if not in KY) finds a person lacks the ability to manage some of their personal or financial affairs

• The judge has flexibility to pick and choose rights retained or lost on a case by case basis, after a jury (or judge if not in KY) has found the Respondent either partially or fully disabled

36

Full vs. Limited Guardian

• A Limited Guardianship is where the guardian possesses fewer than all the legal powers and duties of a full guardian.

• Note that after adjudication, the Respondent is now call a Ward.

• Not every state has a full vs. limited guardian option. However, even in these states, you can sometimes ask for a limited scope guardianship or conservatorship if you only need power to make certain decisions.

37

Conservatorship

• A Conservatorship is a form of Limited Guardianship used when the Ward (or family) is unable to handle her finances or protect herself from fraud and theft, but still is capable of making personal decisions

• A Conservatorship may be requested in the initial filing or may be determined to be appropriate by the jury

• In a Conservatorship, the Conservator handles the money

• The Ward may retain all personal rights or there may also be a personal guardian

• The process of obtaining a Conservatorship is identical to obtaining a full Guardianship (petition, evaluation, jury trial if in KY)

38

The Role of the Judge In Guardianship & Conservatorship Proceedings

The Judge presides over the courtroom proceedings or makes a determination of disability/incompetency/incapacity in non-jury trial jurisdictions.

39

Who Should be the Guardian?

• A responsible family member is often the best choice. This is a thankless job!

• A local non-profit such as ElderServe;

• Professionals (such as an Aging Life Care manager (geriatric care manager)- this option can be expensive;

• State or county guardian of last resort (such as a County Administrator).

40

What Impact Does Guardianship Have Upon An Existing POA?

• In most states, a Guardianship does not void a valid Power of Attorney unless the Court specifically orders it to do so.

41

Abuse of The Guardianships Process

• Legal proceedings can be used as a weapon against other family members such as siblings, or against the Respondent herself.

• Mom wants to remarry and the kids see their inheritance vanishing (which may indeed happen)

– so they file a guardianship. • Kids hate each other and one files for guardianship

to prevent any contact between Mom and sibling. • If there is an expectation that the dominant child will

try and have Mom sign a new Will, insist that the Court clearly state that Mom may not sign a new Will. Get it in writing! 42

Doctors Hospital of Augusta v. Alicea:

Citation: 2016 Ga. LEXIS 448

Key Questions: Does it really matter what an Advance Directive or similar document says? Can a healthcare provider be held liable when it fails to follow a patient’s wishes as documented in her Advance Directive, and when stated to the provider by the patient’s Agent?

43

How Common Are Advance Directives for Health Care for Older Adults?

• Nationwide Percentage of Adults Over 60 Who Had An Advance Directive In Place When They Died: 1990: 47 percent 2010: 72 percent SOURCE: Growing Older in America: Health & Retirement Study (2011)

44

The Nancy Cruzan Case

Citation: Cruzan v. Director, Missouri Department of Health, (88-1503), 497 U.S. 261 (1990)

The first “right to die” case heard by the U.S. Supreme Court.

In a 5-4 decision, SCOTUS held that clear and convincing evidence was required when making life or death decisions for an incompetent adult. 45

Patient Self-Determination Act (1990)

Requires that most health care institutions (but not individual doctors) do the following:

1. Provide a written summary of healthcare decision-making rights to patients;

2. Ask if you have a copy of an Advance Directive;

3. Educate staff and community about Advance Directives;

4. Never discriminate against patients based upon whether they do or do not have an Advance Directive.

46

Other Leading U.S. Cases On End-of-Life Care Decision-Making

Karen Ann Quinlan: ‎70 N.J. 10; 355 A.2d 647‎ (1976):Supreme Court of New Jersey allows family to remove daughter from ventilator based upon a right of privacy.

Terri Schiavo: In re Guardianship of Schiavo, 780 So.2d 176, 177 (Fla. 2d DCA 2001) (“Schiavo 1”): 15 year court battle over life support for a young woman.

47

Are Most Adults Actually Planning for End-of-Life Care Decisions?

“Of the 7946 respondents (all adults 18+), 26.3% had an advance directive. The most frequently reported reason for not having one was lack of awareness. ” (based on data from 2009 and 2010 HealthStyles survey) SOURCE: “Completion of Advance Directives Among U.S. Consumers” in American Journal of Preventive Medicine, January 2014 Volume 46, Issue 1, Pages 65–70

48

Physician Order for Life Sustaining Treatment (POLST):

• Translates the wishes of the patient into a doctor’s order, which must be followed.

• Intended to be completed by patients who are in or may be in their last year of life.

• Intended to facilitate ease of transferability between all different kinds of health care providers. 49

POLST Timeline

• Early 1990s: Oregon physician Dr. Susan Tolle (right) spearheads nation’s first POLST initiative.

• 1990-2000s: Most states across the country adopt a POLST form.

• 2014: Georgia passes legislation enabling the use of a Georgia-specific POLST form.

50

How Widespread Are POLSTs?

51

Key Points About POLSTs

• A POLST is a physician’s order. As such, it prevails over a Health Care POA or similar surrogate document that is NOT a signed doctor’s order.

• A POLST can and often does function as a Do Not Resuscitate (DNR) Order.

• In Georgia (and in some other states), there has been pushback from some major healthcare systems/hospitals who do not yet accept the POLST. What is the best practice in this circumstance?

52

Health Care Decision-Making Case Study: Brandon

• Brandon is a 34 year old male who lives in your city.

• He is openly gay and has been HIV positive for 10 years.

• His partner Ray (also HIV positive) has been with him for 8 years.

53

Health Care Decision-Making Case Study: Brandon

• Precipitously declining health

• Emotionally, he is very close to his Grandmother who lives nearby. She is 84 and has short-term memory issues.

• He has a good relationship with his siblings (who live out of state).

• He has a strained relationship with his mother.

54

Health Care Decision-Making Case Study: Brandon

Brandon’s attending physician informs him that he has Kaposi sarcoma (a cancer that begins as lesions in blood and lymph cells) in his lungs and liver.

Treating oncologist informs him that even with the most aggressive treatment available, he probably has less than one year to live.

55

Health Care Decision-Making Case Study: Brandon

Your role is to advise Brandon about how to address his healthcare decision making options.

You find him to be very sharp, but easily fatigued.

He is uncertain of how to empower others to make health care decisions.

56

Health Care Decision-Making Case Study: Brandon

What potential decision-making conflicts do you anticipate among the people in Brandon’s life?

Before Brandon completes any documents, what conversations should Brandon have?

Should Brandon complete a Health Care Directive or similar document? A POLST? Both?

57

What If Someone Voluntarily Stops Eating and Drinking In Order to Die?

• VSED= Voluntarily Stopping Eating and Drinking.

• A patient who is physically capable of taking nourishment makes the decision to STOP all oral intake with the goal of hastening death.

58

Voluntarily Stopping Eating and Drinking (VSED)

• Many states are still developing both statutes and case law about VSED.

• VSED has become a policy battleground between right-to-die and right-to-live groups.

59

In Re: Nora Harris Citation: In re Nora Harris, No.13017G6 (Jackson County July 18, 2016) (order denying protective order); OR. REV. STAT. §127.515 (2011); OR. ADMIN. R. 411-054-0030(1)(e)(F) (2016).

Key Questions: Can a healthcare agent under an Advance Directive instruct a facility to refuse to provide sustenance to a patient? What if this was consistent with a patient’s wishes? But what if the patient still readily accepts food and drink when it is offered to her?

60

Physician-Assisted Suicide

In contrast to VSED, which involves a patient refusing sustenance whenever it is offered, physician-assisted suicide involves physician-prescribed and physician-administered means of ending a patient’s life, often through a lethal injection or via pills. NOT LEGAL IN GEORGIA, or in MOST STATES. 37 States (including Georgia) have laws against assisted suicide. Only 5 have legalized it.

61

The Final Exit Network Cases

Key Question: Can states criminalize speech, moral support, and/or instructions on how to end life for terminally-ill patients who wish to end their own lives? Arizona (2011): “Exit Guides” narrowly escape criminal prosecution, take plea bargain. http://www.phoenixnewtimes.com/news/final-exit-network-assisted-suicide-defendant-pleads-guilty-today-to-endangerment-6631689 62

The Final Exit Network Cases

Georgia (2012): State anti-assisted suicide statute struck down for prohibitions against free speech: Citation: Final Exit Network, Inc., et al. v. State of Georgia, Case No. S11A1960, Unanimous Opinion of the Supreme Court of Georgia, Feb. 6, 2012, available at 290 Ga. 508, 722 S.E.2d 722, 12 FCDR 348. Minnesota (2016): You can encourage suicide, but don’t instruct. Advising and encouraging suicide is protected speech, but assisting with suicide is not ,and providing instructions is a form of assistance. https://mn.gov/law-library-stat/archive/ctappub/2016/opa151826-121916.pdf

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