The Powers That Be: Understanding Powers of Attorney, Conservators, Guardianships and More: A Primer.
While legal entities such as power of attorney, conservators, guardians and the like are not generally in the repertoire of nurses, we do encounter these entities every day in practice. And we may have use for these entities in our own personal lives. The purpose of this independent study is to acquaint the nurse with a variety of legal entities. It is further hoped this module will instruct as to how these entities are used. We will discuss the implications for the nurse in responding to each of these legal entities. By no means is this module designed to replace legal counsel. The reader should also consult his or her own legal department at one's place of employment or an independent attorney. These entities are being discussed in general terms, and the reader should be aware there might be some differences or nuances that pertain to state law. Many different life circumstances exist; therefore, there exists a variety of legal entities to suit each situation. We will begin with a discussion of the entities generally used for and by adults. In the second portion of the module we will focus on custody issues that affect children.
Financial Power of Attorney: Sometimes this is also referred to as being a General Power of Attorney. There are three different power of attorney entities. One is a financial power of attorney, another is a medical power of attorney and the third is a limited power of attorney. We will discuss the medical power of attorney in more detail in the next section. However, it is important to note: these are different legal entities, which grant very different powers to the advocate. A Limited Power of Attorney is sometimes called a "special" power of attorney. Limited Power of Attorney authorizes an advocate to act on the individual's behalf only for specific purposes and for possibly a limited time period. For example, an individual may need a Limited Power of Attorney to sell a home and automobile. Or perhaps the individual is going to be out of the country for a period of time and will need a Limited Power of Attorney to handle financial issues while abroad. Once those tasks are completed, the Limited Power of Attorney is done.
The advocate may also be referred to as the Attorney-in-fact. In other words, this is the individual or individuals that will be able to act on behalf of the person. It is common for individuals to name two or more Attorneys-in-fact. This is done in the event that if one Attorney-in-fact is not available; another Attorney-in-fact can step in and do what needs to be done. In some instances, one Attorney-in-fact is assigned to handle all financial and legal matters while another is assigned to handle household matters. It is important to review the financial power of attorney document to identify who is/are the Attorney(s)-in-fact and whether these individuals may function separately (or independently), jointly or jointly and separately (independently) and identify what roles they have been assigned. If the identified Attorneys-in-fact may function separately (independently), you may deal with just that one person. However, if the document stipulates the Attorneys-in-fact are to function jointly, you must deal with all Attorneys-in-fact. If the document stipulates the Attorneys-in-fact may function jointly and/or separately (independently), then you can deal with either/or individual.
A key element of power of attorney is that the person granting the powers to the Attorney-in-fact is mentally competent, or has an understanding of the powers being granted. A person who is not mentally competent may not use a Power of Attorney and we will discuss other options for those individuals later in this module. A person who has a brain injury, but still has an understanding of what powers he or she is granting to the Attorney-in-fact, may still utilize a financial Power of Attorney document.
Sometimes a power of attorney is referred to as being a durable power of attorney. Durable power of attorney may apply to a financial and/or medical power of attorney. A durable power of attorney allows the Attorney-in-fact to act as soon as the individual signs the document, not necessarily when the individual becomes incapacitated. In this way, the Attorney-in-fact could act independently behind the individual's back. In some instances, it may be advantageous to have an Attorney-in-fact be able to function independently. If for example someone makes poor decisions regarding finances, the Attorney-in-fact may be able to intercede on the individual's behalf. If the durable power of attorney contains language stating the Attorney-in-fact is to act if/when the individual becomes incapacitated, the individual may function on their own behalf until such time without the Attorney-in-fact acting independently. This is often called a Springing Power of Attorney. In other words, the powers spring into action when the individual becomes incapacitated. So, if the individual is in a coma, the Attorney-in-fact may assume the designated powers as long as it is a durable power of attorney granting powers due to incapacitation.
If the power of attorney is not designated as durable, the Attorney-in-fact can only exercise a power the individual is also capable of exercising. Thus if the individual is in a coma and is not able to act, the Attorney-in-fact (again in a non-durable power of attorney) also cannot act on the individual's behalf. For this reason, a non-durable Power of Attorney is not used very often. It's when the individual is incapacitated he or she needs to rely on the Attorney-in-fact.
Power of Attorney documents are effective until revoked or changed in the future. All Powers of Attorney end upon the death of the individual. Upon the death of the individual, powers are transferred to the person's executor of a trust or will. The executor of a trust or will might not necessarily be the same person who was the Power of Attorney. In some cases, the individual may choose to make his or her Attorney-in-fact the same person as his or her executor.
The Financial Power of Attorney grants the Attorney-in-fact power to handle financial matters for the individual. Common financial matters include the following:
* Managing assets: This means managing the individual's money, collecting rent, managing real estate, managing business affairs for the individual, acting as a proxy or managing stocks, bonds or other investments, for the individual. The Attorney-in-fact may file suit, if necessary to recover money or goods on behalf of the individual. The Attorney-in-fact may also defend all actions taken against the individual.
* Real property powers: This deals with managing any tangible assets the individual may have, such as real estate. The Attorney-in-fact may purchase, sell, rent property, renew leases, and may enter the property all on behalf of the individual.
* Contract powers: The Attorney-in-fact has the power to enter into and execute contracts such as loans, mortgages, and/or leases on behalf of the individual. There may be other items besides those mentioned here.
* Banking powers: The Attorney-in-fact may undertake all banking matters such as opening, managing and closing accounts. The Attorney-in-fact may write checks to pay bills as necessary.
* Tax Returns: The Attorney-in-fact is responsible to prepare and file tax reports on behalf of the individual. The Attorney-in-fact may contract with a commercial tax preparation firm for this purpose.
* Insurance, Annuities, Pension and Benefit Plans: The Attorney-in-fact can redeem, cancel, and manage insurance policies, annuity contracts, retirement and pension plans and programs, such as IRA's, 401K, SEP plans, and employee and/or retiree benefit programs.
* Government Benefits: The Attorney-in-fact may apply for and execute any government benefits such as Social Security, Veteran Affairs, and/or Railroad Retirement.
* Extraordinary Powers: These are additional powers granted to the Attorney-in-fact and include such items as making gifts, forgive debts, create, amend, revoke trusts, and/or transfer assets to trust. Arrangements for children and/or pets are generally outlined in this section.
Restrictions on the Attorney-in-fact's powers: The individual may list items he or she does not want the Attorney-in-fact to perform. Some common restrictions might include the Attorney-in-fact may not execute (sign) a will, a codicil (an amendment to a pre-existing will), substitute any will, or change a beneficiary on any life insurance policies that the individual holds.
Liability and Accountability of Attorney-in-fact: When one asks someone to become an Attorney-in-fact, one is asking a lot of that person. It is a tremendous amount of work, depending on the complexity of the individual's financial affairs. Because the Attorney-in-fact may not necessarily be a family member and because the Attorney-in-fact is handling all the finances, it is imperative the Attorney-in-fact keep accurate records and an accounting of finances. In some instances, the Attorney-in-fact may be required to provide a quarterly accounting of all finances to the individual, while in other instances the accounting may occur only upon the request of the individual. The Attorney-in-fact is expected not to undertake any criminal actions during the course of managing the individual's affairs. The Attorney-in-fact is also not generally held liable for any decision regarding investments, provided these decisions were made in good faith.
A Medical or Healthcare Power of Attorney allows the individual to appoint an Attorney-in-fact to make health care decisions for the person in the event he or she is no longer able to do so. In other words, when the person no longer has the capability to give, withdraw or withhold informed consent regarding his or her own healthcare, the Healthcare Attorney-in-fact may assume that role. The Medical or Healthcare Power of Attorney is not a living will or advanced directive document, but may contain some of the same information regarding the individual's wishes for treatment. We will discuss those documents in the next section of this module. Sometimes the Healthcare Power of Attorney is referred as being a "healthcare proxy" or a Durable Power of Attorney for Healthcare. Just as we discussed with the Financial Power of Attorney, there may be more than one Attorney-in-fact named in the Healthcare Power of Attorney. The Medical Attorney-in-fact may also be referred to as the healthcare surrogate or patient advocate.
Attorneys are kind of similar to pharmaceutical companies; they have many names for the same entity, which can create confusion! Again it is imperative for the nurse to identify the Attorney(s)-in-fact and whether these individuals are to function jointly and/or separately. While living wills and advanced directives generally apply to someone who is terminally ill, the Medical Power of Attorney may be used whenever the individual is not able to make medical decisions. For example, a younger healthy individual becomes involved in a serious auto accident and has a very poor prognosis for survival; a Medical Attorney-in-fact can step in and take action.
Let's say the individual stated in his Medical Power of Attorney that he does not want to be sustained on a ventilator or receive tube feedings. This gives guidance to the Medical Attorney-in-fact. Perhaps the individual is temporarily incapacitated with an illness, but is expected to recover, the Medical Attorney-in-fact can step in and make decisions until the individual recovers and is able to resume making his or her own decisions. Some individuals have strong feelings about medical treatment and wishes for their healthcare. It is often suggested the individual, not only have those discussions with his or her family, but with the Medical Attorney-in-fact, and list those wishes in the Medical Power of Attorney document. For example, if the individual is close to dying, he or she may want to utilize a hospice service. If the individual objects to a certain form of medical care due to religious or philosophical beliefs, adding that to the Medical Power of Attorney document serves to clarify and assist the Medical Attorney-in-fact. In some states, should the individual enter into a persistent vegetative state, the Medical Power of Attorney applies. A persistent vegetative state is defined as "eyes open unawareness," which means the person is not able to communicate or understand what is going on around him or her.
Typical powers in a Medical Power of Attorney for the Medical Attorney-in-fact include:
* A HIPAA release and Access to Medical and Personal Records: The Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 restricts the disclosure of healthcare information. It is essential the Medical Power of Attorney contain a HIPAA release where the individual waives his or her right to privacy. This release allows healthcare professionals to speak with and share information with the Medical Attorney-in-fact. Without the HIPAA release, the Medical Attorney-in-fact would not have access to the individual's healthcare information and essentially would not be able to function as the healthcare proxy for the individual.
* The Power to Establish Residency: This allows the Medical Attorney-in-fact to move the individual from his or her home, identify the proper placement for the individual such as a nursing home or assisted living facility, and allows the Medical Attorney-in-fact to enter into contracts for such placement.
* Care Contracts: The Medical Attorney-in-fact has the power to enter into contracts in order to provide care for the individual. A Medical Attorney-in-fact may hire and compensate a home health aide for instance.
Living Wills & Advance Directives: These terms are often used interchangeably and are the same. A living will or advance directive outlines the individual's wishes for healthcare when the individual is no longer able to speak for him or herself. Note: Living wills and Medical Power of Attorney documents are not the same legal document. They are two separate items, but are often combined together into one document. If the living will and Medical Power of Attorney are separate documents, it is possible there may be inconsistencies between the two documents. For this reason, most states have combined these documents into one. Having all healthcare powers granted to the Medical Power of Attorney and healthcare wishes outlined in one document proves to be much less confusing and more easily managed. In the past living wills and/or advanced directives were used with more elderly and/or terminal individuals. However, today these documents are becoming more widely used in any estate planning.
The individual is usually in a terminal condition at this point. The living will expresses the individual's desires regarding sustaining life and prolonging the process of dying. It is important to make the language in an advanced directive as clear as possible so as to avoid any confusion. For example, perhaps the individual has stated "no ventilator under any circumstances." However, what if the individual requires a ventilator for only a short period of time in order to complete another type of treatment? Would that be all right? It is essential the individual have conversations with his or her family members, friends, and Medical Attorney-in-fact to clarify some of these situations. It is also essential to have conversations with one's healthcare providers so they too have a clear understanding of one's desires. The individual's primary care provider may then assist and support the Medical Attorney-in-fact and provide education for the family when the time comes. It is also important to have conversations with one's healthcare provider so he or she understands one's desires and wishes.
In the event the healthcare provider will not honor one's wishes, it may be necessary to seek other healthcare providers. In some instances when the healthcare provider refuses to honor an advance directive, a lawsuit may be the only alternative to enforcing one's directives. Besides discussing this document, be sure to give copies of one's advance directives to family members, close friends, the Medical Attorney(s)-in-fact and all healthcare providers.
Be sure to keep a list of persons who received copies of this document. Some people choose to list the persons who received a copy of the document directly on the back of the document. It makes it very convenient should one need to contact these individuals in the future. In the event it is modified in the future, new copies can be given to the same individuals. It should be noted that advanced directives or living wills have no effect on health or life insurance. A copy of this document should be taken to the hospital any time the individual is admitted. An advanced directive that allows for the non-initiation of or for the withdrawal of life support when the individual is incapacitated is not viewed as suicide; thus life insurance is not affected.
Consider this scenario. Patty became terminally ill with cancer and kidney failure and had developed a urinary tract infection. There was no treatment that would save her life or change the outcome of the cancer and kidney failure. It was not possible to treat the cancer with chemotherapy due to the kidney failure, thus death was imminent. Patty named her sister as her Medical Attorney-in-fact. In her advanced directives and Medical Power of Attorney combined document, Patty had outlined, if she was ever in a terminal state, she did not want to be placed on a ventilator, nor did she desire any tube feedings or resuscitative measures. She desired comfort measures only. She had had many conversations with her sister about her desires and thought her sister would act as her advocate when the time came. A physician approached the sister and explained that if he could just put Patty on a ventilator and initiate hemodialysis, he would treat her urinary tract infection with some antibiotics.
The sister allowed Patty to be placed on a ventilator and undergo hemodialysis during the next few days of antibiotic therapy. While the antibiotic cleared the urinary tract infection, it did nothing to alter the course of the cancer or kidney failure. After completing the antibiotic, she still had cancer and kidney failure, plus suffered the pain and discomfort of being artificially ventilated, not to mention the hemodialysis. When all was done, Patty still died.
If the sister had asked one question: "How will this antibiotic treatment change the outcome for Patty?" perhaps the sister would have made a different decision and adhered to Patty's desires. This scenario illustrates how careful one must be in choosing one's Medical Attorney-in-fact and outlining one's desires. Everyone should have conversations and ask "what if" type questions with their Medical Attorney-in-fact and family members. The clearer the instructions and desires can be made, the more apt they are to be achieved.
State Living Will Forms: All fifty states and the District of Columbia have living will forms that are often available free of charge at libraries, state government offices or on line. The forms offered by a particular state will contain the language that the state recommends or requires. Anyone utilizing such forms should read them carefully and be sure they contain the desires of the individual. Some forms have spaces where additional information and desires can be added. Some states require the form be used as is and nothing is to be modified on the form. In those instances, modifying the form may invalidate it. As long as the state allows for modifications, any modifications made by the individual should be honored by the Medical Attorney-in-fact and healthcare providers. Some states require a copy of medical records be attached to the living will document.
While medical conditions change and medical records can become quite voluminous, it is helpful to have copies of any discharge summaries and/or physician progress notes or physician letters. It is also a good idea to attach a list of all treating healthcare professionals to the living will form should the state require additional medical record documents.
Doting the I's and Crossing the T's: Witnesses and Notarizing: Just like any other power of attorney, to become a valid document, these documents must be signed, dated, and witnessed. Witnesses are only witnessing the signature of the individual. Witnesses should not be related by blood or marriage or stand to benefit in any way from the individual's death. Nor should any witnesses be responsible for any healthcare expenses for the individual. In some states, it is necessary to not only have a living will witnessed--the document must also be notarized. Many attorneys or their staff are notaries as well as many bank managers are notaries. If the individual has an account at a particular bank, the bank staff will notarize documents free of charge or for a minimal fee. Some states also require that these documents contain a statement that the individual is of "sound mind" and is freely making these decisions.
For nurses, it is a good idea to know what is contained in the appropriate state forms. Should a form be presented one will then be familiar with it. In practice, situations arise when a patient inquires about such documents. The nurse can share this information with the patient as well as refer the patient to the facility's legal or risk management department.
Considerations for Naming, Accepting and Terminating Advocates, or When There are No Advocates: What if there is no Medical Power of Attorney, living will or advanced directives? In the absence of these documents, the decision making usually falls to the family members such as the spouse and/or adult children. Life support may still be withheld or discontinued if the family agrees it is best for the patient, even in the absence of a living will.
In choosing an Attorney-in-fact or healthcare surrogate, it is imperative that the individual chooses a person(s) who is familiar with the individual's beliefs and wishes. This person very often is a family member, but a family member may be too close to a situation and may not be the best choice. It is important to have discussions with the possible Attorney-in-fact to be assured this person will advocate as one desires.
Once named as an Attorney-in-fact that person has the responsibility to interpret the wishes of the individual in the document. In some states the Attorney-in-fact signs a document called an acceptance of patient advocate or power of attorney. Generally, these acceptance documents briefly outline the powers and limitations of the Attorney-in-fact and indicate that the Attorney-in-fact accepts these responsibilities. When the time comes to exercise his or her powers, the Attorney-in-fact may also be requested to sign an affidavit. The affidavit states that at the time of the exercise of power, the Attorney-in-fact has no knowledge of any revocation or termination of his or her powers. The affidavit serves to validate the Attorney-in-fact's authority to act on behalf of the individual. For example, when the Attorney-in-fact begins to exercise powers regarding bank accounts, the bank may request the Attorney-in-fact sign an affidavit.
The individual who is not incapacitated may choose to revoke or change a Power of Attorney or living will. This is generally done in writing, or may be achieved by the intentional destruction of the original document. It is generally advisable to send written notice of any revocations or changes to all individuals or entities such as banks that have received copies of the original documents.
Unless otherwise changed or the document expires, as previously mentioned, Power of Attorney responsibilities terminate upon the death of the individual. Many states terminate the Attorney-in-fact's powers when the Attorney-in-fact has actual knowledge of the individual's death. Bear in mind some Attorney-in-fact's may live in another city or state; thus there may be a lag in time between the individual's death and the notification to the Attorney-in-fact. So say the Attorney-in-fact paid a bill after the individual's death, but prior to his or her notification of the death, the payment would still be honored on behalf of the individual.
Now that we have discussed Financial and Medical Power of Attorney and advance directives, consider this true event. As you read this, see if you can spot the problems.
Jean is an elderly lady with a history of lung cancer, cervical cancer, multi-infarct dementia and depression. Prior to her developing dementia, she had her attorney draw up and assist her in executing a will, financial power of attorney, medical power of attorney and advance directives. Jean named Barb, who also happens to be a nurse, as her Financial Attorney-in-fact. She named Phyllis, her sister, as her Medical Attorney-in-fact, healthcare proxy and the executor of her will. As Jean aged and her dementia became evident, it was necessary to move her into an assisted living facility. As Financial Attorney-in-fact, Barb signed the contract for the assisted living facility and handled all the bills. She further sold Jean's home, car and household goods. Over the next few years, there were a number of times Jean had to be hospitalized. When Barb would go to the hospital to see Jean, the healthcare staff would routinely ask if Barb was the "power of attorney."
Barb would routinely respond, yes she was. The nursing staff and physicians would then proceed to answer any and all of Barb's questions about Jean's health status and plans for treatment. Interestingly because Barb was similar in physical stature to Jean and was 30 years younger than Jean, often the healthcare staff assumed she was Jean's daughter. They would freely give Barb information regarding Jean's healthcare without asking who she was and how she was related to Jean. It wasn't until a physician made a comment to Barb about being Jean's daughter that Barb realized this assumption had been made. This assumption was made in spite of a social history revealing Jean to be childless and widowed.
Now after reading this brief scenario, list all the things that "went wrong" here.
1. The healthcare staff only inquired about "power of attorney." They did not differentiate financial versus medical. Remember that Phyllis is the Medical Attorney-in-fact not Barb.
2. The healthcare staff never asked to see a copy of the document to verify the type of Power of Attorney or the assigned powers of the Attorney-in-fact.
3. The healthcare staff never verified whether the Attorney-in-fact was to act jointly and/or separately with any other Attorney-in-fact.
4. Because of similar physical stature and age difference between Jean and Barb, the healthcare staff assumed Barb was Jean's daughter. This of course was an incorrect assumption and contrary to Jean's social history.
5. The summation of this scenario is that information regarding Jean's healthcare was shared with an individual who really did not have access to or power to act on that information.
Ultimately the situation worked out well, as Jean's sister Phyllis was happy to have Barb have medical information as Phyllis had no healthcare background. Phyllis routinely stated to Barb that Barb knew what questions to ask and how to relate that information to Phyllis in a manner she understood. However, just because this situation worked out well, it just as easily could have become a nightmare. Not all families and friends work as effectively together as Barb and Phyllis did on behalf of Jean. Many times there are differences of opinions or power struggles between family members and/or friends.
In another situation, had information been given to the wrong person, the real Attorney-in-fact could have been undermined or not included in making a decision that only that Attorney-in-fact had the power to make. For the nurse, the moral of the story is to ask the correct question: "Do you have Medical Power of Attorney?" And ask to see a copy of the document. Be careful of making assumptions as to the relations between visitors and patients. Know who is visiting one's patients and how those visitors are related to the patient, especially before giving any healthcare information.
Conservatorship: In certain circumstances a financial power of attorney may not be accepted by a financial institution or may not be appropriate for an individual. Remember with a financial power of attorney, the individual granting powers must have the capacity to understand that he or she is indeed granting powers to another individual. Let's say an individual has sustained a traumatic brain injury that has severely impaired his cognitive abilities. This individual doesn't even know what a bill is let alone how to manage payment. Because this individual is so severely compromised, a financial power of attorney is not appropriate. This individual would not understand he is delegating financial powers to another person let alone have the ability to execute the document. In this instance a conservator would be appointed. In the absence of having someone to trust to make financial decisions is another instance when a conservator may be appointed for an individual. Conservators are appointed by the probate court system.
There is a hearing that establishes the individual is not able to manage his or her own financial affairs followed by the appointment of the conservator. If the individual has a family member or friend, the probate court may appoint that person as the conservator. In the absence of any family or friend, the probate court may choose to appoint a person who doesn't even know the individual. This person is often referred to as being a public conservator. A conservatorship takes control completely out of the hands of the individual and places control in the hands of the probate court.
Conservators are minimally required to file annual accounts with the probate court, thus providing oversight and supervision of the conservator by the probate court. Conservators may be required to report and/or file the following with the probate court:
* An inventory of all of the individual's personal property
* An accounting of all financial transactions
* An accounting of all bank statements and investments
* A statement as to the physical and mental status of the individual
* Offers proof the individual is being cared for appropriately. This includes proof of the individual's residential arrangements, sufficient healthcare and treatment is being provided and appropriate educational and training programs have been made available to the individual
* Petitions the probate court for approval for certain financial transactions, i.e., purchasing a home
* Gives proof the individual's funds have been invested so they can be used for the support of the individual
While a financial power of attorney is a more private arrangement and is substantially less expensive, a conservatorship is subject to the scrutiny of the probate court, which may be of benefit, but also more expensive. A conservatorship involves filing fees with the probate court, hearing fees, attorney fees, and fiduciary fees. Fiduciary means one who has undertaken a duty to act for the benefit of another person under a given set of circumstances. In other words, fiduciary fees mean the conservator may be compensated for filling this role and is reimbursed for any expenses the conservator incurs. Public conservators are paid for their time as well as expenses.
Revoking or terminating a conservatorship also is not as simple as revoking a financial power of attorney. With a conservatorship, the individual must prove to the probate court that he or she is able to manage his or her financial affairs again. If the individual is able to manage his or her financial affairs again, the conservatorship will be closed by the probate court. In some instances, an individual may be able to make some financial decisions, but may not be able to make other decisions.
For example, the individual may be able to go to a store and make minor purchases such as toiletries or groceries, but would not be capable of understanding the purchase of a home or an investment vehicle such as an annuity or stock certificate. In this type of instance, the probate court may appoint a conservator with limited powers to handle only those items the individual is incapable of handling. The easiest way to think of a conservatorship is to think of it as a court appointed financial power of attorney for someone who is incapacitated.
Guardianship: In certain circumstances a medical power of attorney may not be appropriate for an individual. Remember with a medical power of attorney, the individual granting powers must have the capacity to understand that he or she is indeed granting healthcare proxy powers to another individual. Let's say an individual has severe psychiatric health problems to the extent he is not able to care for himself or understand any informed consent. Or the person is catatonic or in a coma and is clearly incapacitated. Who will make healthcare decisions for this person?
When a medical power of attorney is not appropriate, a guardianship is necessary. Establishing a guardianship is similar to establishing a conservatorship. The individual's incapacity is established at a hearing in probate court then a guardian is appointed by the probate court. Again, if there is a suitable family member or friend, that person is the first choice of the probate court for a guardian.
In the absence of a family member or trusted friend, the probate court will appoint a public guardian. Just as we saw with a conservatorship, the guardianship is not as private as a medical power of attorney and it is more expensive. Again there are filing fees, attorney fees, hearing fees and fiduciary fees to be paid to the guardian. Minimally guardians must file an annual statement with the probate court regarding the physical and/or mental status of the individual.
Just as we discussed with a conservatorship, if the individual is capable of making some healthcare decisions, the probate court will establish a limited guardianship. That way the individual can maintain as much independence as possible, but has assistance when and where needed. A guardianship is revoked when the individual can show he or she is capable of understanding informed consent and is able to resume making his or her own healthcare decisions again. To close the guardianship a court hearing is held, just as we discussed with a conservatorship. The easiest way to think of a guardianship is to think of it as a court appointed medical power of attorney for someone who is incapacitated.
Incapacity: We've used this term a number of times in this module, but what does it means in the eyes of a court? Just because we think someone has made irresponsible or foolish decisions doesn't mean he or she should be declared incompetent. Incapacity is defined as the lack of ability or power to act. The person is incapable of physical and/or intellectual power. In opposition to incapacity is capacity. Capacity is defined as being of legal age and having the ability to understand the nature and effects of one's actions. When a person of legal age does not have the ability to understand the nature and effects of his or her actions, he or she is deemed as being incapacitated.
Do Not Resuscitate Orders: Many of us have encountered situations where the medical condition is terminal. Cancers, end stage kidney disease, end stage heart failure, end stage pulmonary disease are just of few of the terminal conditions nurses see in practice. In these situations, lifesaving interventions are not warranted and may only result in unwanted treatment neither the patient nor family desires. In this case, do not resuscitate orders may be written. The do not resuscitate (DNR) order tells healthcare professionals not to perform life saving measures as outlined in the order.
There are often different levels of DNR orders and the nurse must be aware of this. Some DNR orders delineate no mechanical ventilation, or no chest compressions are to be instituted, while other DNR orders indicate nothing is to be done. Bear in mind laws vary from state to state in regard to DNR orders. For more information, specific to one's state, refer to your employer's policies regarding DNR orders. The reader may also want to seek information from his or her employer's risk management department or administration.
On line searches of one's state government websites are also generally very helpful in procuring information regarding the state's DNR protocols and laws.
The following is some general information regarding do not resuscitate orders.
* Patients may request a DNR order. As long as the individual is of legal age and competent, an individual may request a DNR order for themselves. The DNR order or request may be made orally to a physician or can be made in writing in the form of a living will or advance directive prior to becoming ill.
* Medical Attorney-in-facts may request a DNR order. If the patient is too sick to request the DNR for himself, the healthcare proxy (who may be a family member) may do so on behalf of the patient. Even if the advance directive does not address a DNR order, the medical attorney-in-fact may make this request of the physician.
* Families may request a DNR order. If no advance decisions have been made and there is no medical power of attorney, the family may make the request for the DNR order. Generally, a family request for a DNR order is honored if the patient is terminally ill or permanently unconscious or if a physician has determined that resuscitation would be futile. If the physician does not agree to the DNR order, but it is still the family's wish, the physician should transfer the patient to the care of a physician who does agree to write a DNR order.
* Physicians may request a DNR order. If a physician deems resuscitation would be futile, the physician may request a DNR order. However, the physician is required to discuss this with the patient and/or family as long as there is time to do so. In the absence of family, healthcare proxy, advance directives, and the patient is unable to consent to the DNR order, a general policy is that two physicians must concur on the decision to not resuscitate the patient. Some states require two physicians to concur on a DNR order in this type of situation.
* Revoking or changing DNR orders can occur. DNR orders should be reviewed periodically, such as on patient rounds or patient care planning meetings. Are the orders still valid? Is this still what the patient desires and consistent with advance directives? Has the patient requested the order be discontinued? Has the family or healthcare proxy requested the order be discontinued? Have there been any changes in the patient's healthcare status that would cause the DNR order to be discontinued?
* What about other medical treatment and DNR orders? DNR orders generally only preclude resuscitation. DNR orders do not generally prohibit other aspects of care such as having blood cultures drawn, receiving blood transfusions, transferring a patient to an intensive care unit, or managing pain. However, if there are advance directives that indicate that the patient does not want certain forms of medical treatment, i.e. he or she desires comfort measures only, then additional medical treatment may be withdrawn. Thorough communication with the patient, family and healthcare attorney-in-fact can assist healthcare professionals in determining what forms of medical treatment should be continued.
* Not sure about DNR order status? In the event one is questioning the validity or is in doubt about the status of a DNR order; healthcare personnel should attempt resuscitation. When in doubt, do CPR!
Special Considerations for Children
In this next section we will address some legal entities as they apply to children. Again, this is not meant to replace the advice of an attorney, but will serve to give general information. Also bear in mind laws vary from state to state. Most states have online websites that can be searched for specific state protocols and laws. Think about what resources are available at one's place of employment as well and make use of those resources such as the risk management or legal department.
Types of Custody: There are a number of types of child custody that we will discuss. However, first we need to address custody in general. Child custody not only involves physical custody of a child, but also includes parental rights, privileges, and duties involved in child rearing. Custody is most often thought of in connection with a divorce. However, custody may also be determined in cases of paternity, guardianships, juvenile delinquency problems and termination of parental rights. The "best interests of the child" is the golden rule applied to custody determinations. In other words, what custodial agreement will best meet the physical, psychological and emotional needs of the child?
Prior to 1970, there was a presumption for maternal custody, as it was believed mothers provided the necessary nurturing a child required. In some instances, though, the mother may not be the best option to meet the child's needs and may actually be the source of problems for the child. Today custody is arranged with the "best interests of the child" in mind. Thus the father, an aunt or uncle or even a grandparent may be the best person to serve the interests of the child.
Custody may be determined through a number of methods. The court may accept the custody plan developed in the parents' separation of divorce agreement. Some states require custody be mediated. In a mediation process, both parents work with a professional mediator or referee to reach a common goal of serving the child's best interests. Some states have specialized courts solely for handling custody disputes, while other states may require parents to participate in parent education courses. In some divorce situations, an attorney may be appointed as a guardian ad litem who serves as an advocate for the child. In some instances, the guardian ad litem serves as a neutral fact finder who investigates the family situation and provides the judge with information. Upon that information the judge may make a custody ruling.
Types of custody include:
* Joint Custody has become the preferred custody arrangement in most states. The definition of joint custody is that both parents share in the legal responsibilities, physical care and custody of the child. Because each family is unique, joint custody agreements can vary greatly. Joint custody may be granted between a parent and grandparent, in the absence of the other parent. Paternal and maternal grandparents may share joint custody of a child. The ability for parties to cooperate with one another as well as physical limitations, expenses and the child's preferences are taken into consideration in formulating a joint custody agreement.
* Sole or Full Custody is actually the traditional form of custody. One parent is designated as the custodial parent. This parent possesses the legal responsibilities, physical care and control of the child. The non-custodial parent, unless not beneficial for the child, has visitation rights. Prior to the 1980's, mothers were traditionally awarded sole custody of children. The custodial parent is the ultimate authority regarding decisions regarding the child's care. The custodial parent may solely decide things such as religious upbringing and changes in the child's surname.
* Nonparental or Third PartyCustody is when a competent adult, not a parent to a child is awarded custody. Aunts, uncles, grandparents, partners in a same sex relationship would all be considered third parties and may seek custody of a child. While efforts are made to keep children with their parents, some circumstances make it necessary to place a child with a third party. Instances that include both parents being deceased, one parent is deceased and the surviving parent is deemed unfit, or the child has been living for an extended period of time with a third party may result in a nonparental custody arrangement. Many states follow the parental preference rule, believing in the fundamental right of a parent to have control of and care for his or her own child. Other states take a slightly different approach to the parental preference rule, stating that, unless unfit; custody is required to be awarded to a parent. A third party may challenge the parental preference rule; however, it is the burden of the third party to show that the child's best interests are not being met by the parent(s) granted custody.
* Split Custody is the least common type of custody arrangement. Typically, it may be used when there are a large number of children involved. The children may be split between the parents. Split custody is only used in exceptional situations, as it is believed children benefit from an upbringing with their siblings. Separating children may only create more traumas in addition to the trauma a divorce creates. Factors that may contribute to a split custody arrangement would include: the children's and parent's preferences, age disparities between children, children with special needs and who can best serve those needs; disciplinary issues and who best handles those problems, relationships of half blood siblings or step siblings, and how well a child will integrate into a particular household.
Just as we saw in our discussion of powers of attorney, in caring for the pediatric population, it is important to have a clear, accurate social history of the child. Are the parents married? Are they divorced? If divorced, what is the custody arrangement? Are there issues with visitation? If in doubt, ask the parents to bring a copy of the custody agreement to clarify who can visit the child and who is to make healthcare decisions on the child's behalf. If one is still unsure, seek the advice of one's risk management or legal affairs departments.
Medication Disputes and Child Custody may come about due to a difference in opinions between parents. This may occur more frequently when parents are in disagreement about aspects of the divorce, custody or visitation issues. Or disagreements may occur just because the relationship ended in such a bitter manner. For example, one parent may feel attention deficit hyperactivity disorder (ADHD) is not a real diagnosis and requires no treatment and thus refuses to administer the prescribed medication to the child. On the other hand, the other parent feels medical treatment of this condition is warranted. How does one settle such an issue?
Generally, whatever the current court order is takes precedence. If the parents have entered into a Marital Settlement Agreement or Joint Parenting Agreement, issues as to who may make medical and medication decisions for the child are usually spelled out. In some cases, one or both parents have the right to make medical and medication decisions for the child. However, if there is no such document, or if parents continue to argue over medical treatment, a court order may be necessary to settle the dispute. The court may make one parent responsible for medical decisions or the court may order a treatment be rendered to the child. A change in the custody arrangement may be necessary and appropriate if one parent has been found to have abused or neglected a child, or is being investigated by a state agency for such allegations.
Emergency Temporary Child Custody may be necessary if a child is in imminent danger of harm. Generally, the parent seeking temporary custody will file a Petition for Temporary Restraining Order is filed without advance notice to the other parent. If the court grants the petition, the order restrains the actions and conduct of the offending parent for a limited period of time. At the end of that time, the parent who filed the petition will have to prove that there is just cause to continue with the restraining order and request the change in custody to become permanent. Prior to making any permanent changes, the offending parent will be given advance notice of any hearings and will have an opportunity to present witnesses or any other evidence to fight a permanent order. Other measures taken at this time would be to file a report with and request an investigation by the state's child welfare agency. Not only can a parent file for temporary child custody but healthcare entities may also file.
Usually with the involvement of the state's child welfare agency or department of social services, healthcare entities may petition to have a child removed from a dangerous situation such as child abuse, sexual abuse, child abandonment or endangerment from a parent's drug or alcohol abuse. Clearly in situations such as these one would need to involve the risk management and/or legal affairs departments.
If a situation is truly urgent, an attorney may request the judge hold a hearing as quickly as possible. The attorney will file an Emergency Motion. In the Emergency Motion document, the attorney must show that an urgent situation exists and will ask for specific relief. Let's say a parent is medicating a child with medications that are not prescribed by a licensed healthcare professional. An Emergency Motion may request the court to order the parent to cease administering the specific medications to the child.
In the news media, once in a while one hears about a medical facility seeking to treat a child, may attempt to gain emergency temporary custody, or at least a court ruling granting that the treatment occur. This situation may involve parents who are neglectful or may occur when religious beliefs run contrary to medical practice. Perhaps the parents do not believe in blood transfusions and the child requires one in order to survive. The interpretation for these situations will vary greatly from state to state. How the particular state views the Parental Preference Rule will also influence how willing a court is to take medical decision making out of the hands of parents. Some courts may feel it necessary to intercede on behalf of the child thinking that if the child were of legal age, the child would choose to seek treatment of his or her medical condition.
A child may not hold to the same religious beliefs as his or her parents. Some courts strongly uphold the Parent Preference Rule as well as our basic freedom of religious beliefs and refuse to make any kind of ruling in these situations. These are very complicated situations that bring about many emotions and are difficult to navigate.
Safe Haven Laws, also known as BabyMoses Law, protect parents from being arrested or sued for abandoning their infants. All states with the exception of Alaska and Washington D.C. have safe haven laws. Texas was the first state to adopt a safe haven law in 1999. These laws do vary from state to state but are only for the abandonment of infants.
Ages of children that are accepted range from not more than 72 hours old to not more than one-year-old. The narrow range of accepted ages is to insure infants receive appropriate healthcare, food and shelter. Baby dumping is a very controversial subject. Certainly as a society we want to prevent the abandonment of children, but we recognize that some parents are desperate to be rid of unwanted children and may resort to harming the child. Safe haven laws allow parents to anonymously leave uninjured infants in designated places such as hospitals, police stations, fire stations, and EMS stations, without criminal consequences.
Depending on the state, not only can a birth mother or birth father relinquish an infant, but legal guardians or any other adult having custody of the infant may relinquish a infant. If the infant has been abused or neglected, the relinquishing adult loses all guarantees of anonymity or immunity from prosecution. Again, depending on the state, a parent may change his or her mind and within a specific time period may regain custody of an infant. If one parent relinquishes an infant without the knowledge of the other parent, the non-relinquishing birth parent retains all parental rights. Let's say a birth mother relinquishes an infant. Later the birth father discovers this has happened. The birth father would retain all parental rights to the infant.
What to do when an infant is relinquished. Mary X, a 15-year-old, brings her 48-hour-old infant son into the Emergency Room and states she is not able to care for the infant and wants "to give him up." You are the nurse on duty. What do you do?
* Know your facility's policy and procedure and follow it
* Ask the parent about the infant's medical and family history, though the parent is not required to provide any information
* Provide the parent with any information regarding parental rights
* Ask if the parent is seeking any medical or psychiatric treatment for him or herself
* Contact your department of social services within your facility
* Contact your state's child welfare agency
Generally, once relinquished, the infant will be examined, cared for and treated if necessary. Once the infant is turned over to the state's child welfare agency, the infant will be placed with either adoptive parents or foster parents.
What happened in Nebraska in 2009? In 2009 Nebraska adopted a safe haven law that had no defined age limit of child. In four months' time more than 30 children, most of them being troubled teenagers, were relinquished in Nebraska. None of the children were infants. And in most instances, parents crossed state lines to take advantage of Nebraska's safe haven law. This snafu in the Nebraska law highlights a real lack in knowing how to deal with troubled teenagers who may need access to mental health resources. Another ramification in abandoning a teenager is that both the identities of the parents and the teenager are obvious and not easily hidden. After realizing this unintended consequence of the original safe haven law, Nebraska lawmakers revised the law to only include infants up to 30 days old. In dealing with troubled teenagers, parents must seek other avenues of assistance.
This concludes our module regarding legal entities. It is hoped this information is of benefit to the practicing nurse. This module serves as a primer, so be sure to know your employer's policy and procedures as well as the resources available to you in the risk management and/or legal departments.
American Bar Association, "A Power of Attorney for My Healthcare," 2011. ABA.org
Cushing, Maureen, Nursing Jurisprudence, Appleton & Lange, CA. 1988 (older, but still a very good resource).
Guido, Ginny Wacker, Legal Issues in Nursing: A Source Book for Practice, Appleton & Lange, CA, 1988 (older, but still a very good resource).
Mewhitney, Kate, Health Care Power of Attorney, National Elder Law Foundation, NC 2010.
Schlusler, Jim, Alternatives to Guardianship, LexisNexis, 2010.
Schlusler, Jim, Guardianships and Conservatorships, LexisNexis, 2010
Scott, Walter L. Medio-Legal Glossary, Medical Economics Books, Oradel, NJ, 2005.
Shvartsman, Shulamil, Safe Haven for Baby Dumping-The Nebraska Hiccup, LexisNexis, 2010.
Barbara G. Walton, MS, RN, NurseNotes, Inc.
Ohio Nurses Association 4000 E. Main Street Columbus, Ohio 43213-2983 614-237-5414 \ www.ohnurses.org
This independent study has been developed for nurses to better understand various legal issues and documents when dealing with patients and family members. 2.0 contact hours will be awarded for successful completion of this independent study.
The Ohio Nurses Association is accredited as a provider of continuing nursing education by the American Nurses Credentialing Center's Commission on Accreditation (OBN-001-91).
1. Please read carefully the enclosed article "The Powers That Be: Understanding Powers of Attorney, Conservators, Guardianships and More."
2. Complete the post-test, evaluation form and the registration form.
3. When you have completed all of the information, return the following to the Indiana State Nurses Association, 2915 N. High School Road, Indianapolis, IN 46224.
The post-test will be reviewed. If a score of 70 percent or better is achieved, a certificate will be sent to you. If a score of 70 percent is not achieved, a letter of notification of the final score and a second post-test will be sent to you. We recommend that this independent study be reviewed prior to taking the second post-test. If a score of 70 percent is achieved on the second post-test, a certificate will be issued.
If you have any questions, please feel free to call Indiana State Nurses Association, 317-2994575 or firstname.lastname@example.org.
OUTCOME: The nurse will apply their knowledge regarding various legal issues and documents when dealing with patients and family members.
This independent study was developed by: Barbara G. Walton, MS, RN, NurseNotes, Inc. The author and planning committee members have declared no conflict of interest.
Disclaimer: Information in this study is intended for educational purposes only. It is not intended to provide legal and/or medical advice.
The Powers That Be: Understanding Powers of Attorney, Conservators, Guardianships and More: A Primer
Post-Test and Evaluation Form
DIRECTIONS: Please complete the post-test and evaluation form. There is only one answer per question. The evaluation questions must be completed and returned with the post-test to receive a certificate.
Final Score: ______________________
1. All power of attorney documents grant the same powers to the advocate.
2. Limited power of attorney grants powers for a specific time frame and/or specific purposes.
3. Nurses should ask to see power of attorney documents to verify the Attorney-in-fact and whether the Attorney-in-fact may act independently or jointly with another Attorney-in-fact.
4. If a power of attorney calls for Attorneys-in-fact to act jointly, the nurse may proceed with one Attorney-in-fact.
5. Individuals granting power of attorney must be mentally competent and have an understanding of the powers being delegated to another person.
6. An individual who is not mentally competent may also utilize a power of attorney arrangement.
7. A durable power of attorney allows the Attorney-in-fact to act as soon as the individual signs the document.
8. A springing power of attorney gives durable power of attorney to the Attorney-in-fact when the individual becomes incapacitated.
9. Power of attorney documents are effective until the deceased person's estate is settled.
10. The Attorney-in-fact is always the executor of the estate.
11. Financial power of attorney generally may grant powers to handle bank accounts, real estate, tax returns and pay bills for the individual.
12. A common restriction for a Financial Attorney-in-fact is that he may not sign (execute) a will on behalf of the individual.
13. Medical power of attorney grants powers to a Medical Attorney-in-fact to make health care decisions when the individual is no longer able to give, withdraw or withhold informed consent.
14. Another name for Medical power of attorney is healthcare proxy.
15. Nurses should request a copy of the Medical power of attorney and identify the Medical Attorney(s)-in-fact and whether these individuals may act jointly or separately.
16. An individual may list his or her wishes for healthcare in a Medical power of attorney document.
17. Persistent vegetative states are defined as eyes open unawareness.
18. Living wills and advance directives are not the same thing.
19. The advance directive outlines one's wish for healthcare when the person is no longer able to speak for him or herself.
20. If a healthcare professional will not honor the individual's advance directive wishes, the person or Medical Attorney-in-fact may have to seek another healthcare professional.
21. It is alright for witnesses to be related to the individual in witnessing a power of attorney document.
22. If there is no Medical power of attorney or advance directive, decision making falls to adult family members.
23. Attorney-in-fact powers terminate upon the death of the individual or when the Attorney-in-fact has actual knowledge of the death.
24. Conservatorships and guardianships are utilized when an individual is incapable of managing and or understanding financial and/or healthcare affairs.
25. A conservatorship or guardianship may be closed by the probate court when the individual is able to prove he or she is again competent and able to manage his or her affairs.
26. Physicians, family members, Medical Attorneys-in-fact and/or patients may request a DNR order.
27. DNR orders result in all care and treatment being discontinued.
28. If one is not sure about the status of a DNR order, the healthcare professional should not attempt resuscitation.
29. Child custody grants parental right, physical custody of a child and privileges and duties involved in child rearing.
30. Grandparents, aunts or uncles may be awarded custody if it is in the best interests of the child.
Match the definition and term:
____ 31. Joint custody
____ 32. Full custody
____ 33. 3rd Party custody
____ 34. Split custody
A. An aunt, uncle, grandparent or same sex partner is awarded custody.
B. Children are divided between parents.
C. Parents share in custody rights and privileges
D. One parent has all rights and responsibilities.
35. If there is no current court order and parents continue to argue about medical care for a child, a court order may be necessary to settle the dispute.
36. The parental preference rule believes in the fundamental rights of parents to control and care for their own children.
37. Safe Haven laws cover the abandonment of all children.
38. If a relinquished infant has been abused or neglected, the relinquishing adult loses all guarantees of anonymity and immunity from prosecution.
39. When an infant is relinquished, the nurse should follow the employer's procedure and inquire as to the medical and family history of the infant, even though the relinquishing adult is not obligated to provide any information.
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