PLANNING FOR INCAPACITY:
Legal Issues Surrounding Advance Directives
I.
INTRODUCTION
A.
B.
The Need for Planning: Incapacity, Incompetency & Mental Capacity
1.
Incapacity is a legal term that refers to an individual=s ability to make and
communicate a reasonable decision or choice based on an understanding
of reality.
2.
Incapacity can be physical or cognitive, or both.
3.
Legal competency is situational. This means the degree of mental
capacity required for legal competence depends on the complexity of the
task.
4.
The law presumes all adults are competent, and that competency must
be rebutted by clear and convincing evidence of a lack of mental capacity.
5.
Incapacity can strike adults at any age.
6.
Planning can allow a client to maintain some degree of control in the
event of incapacity, by leaving directions to be followed in that event.
7.
Competency or incapacity is an evolving area of the law. Whether an
individual=s level of comprehension is sufficient to participate in their
financial affairs or in the making a health care decision is a difficult
question. There are no general rules, but the answering of a few
questions may help to determine a client=s capacity.
8.
Legal mental competency focuses on the client=s mind and not on his
observable actions. The medical profession uses more useful criteria
than the legal profession.
a.
The medical approach determines mental competency based on a
decision-specific basis which varies based on the type of decision
to be made.
b.
The approach requires detailed observations of the patient=s
living patterns, discussion with the patient about the decision
making cognitive processes and the use of formal tests and
detailed mental health assessments by psychologists and
psychiatrists.
SOME DEFINITIONS
1.
Advance Directives: A written document(s) by an individual that gives
directions and/or guidance as to their future financial and/or medical care
in the event of incapacity.
2.
II.
Living Will: Also called Anatural death instructions,@ is a written
document, made in accordance with Kentucky law that explains the type
of medical care desired and under what conditions life prolonging
treatment and/or artificially-provided nutrition and hydration should be
initiated or discontinued in the case of decisional incapacity. Living wills
are generally used to either:
a.
Instruct the doctor to withhold life-prolonging treatment; or,
b.
Instruct the doctor to provide all available medical
treatment.
3.
Health Care Surrogate: The adult designated to make routine health
care decisions and follow the directions contained in the Living Will in the
event of the individual=s incapacity.
4.
Power of Attorney: The power of attorney is a written document that
conveys an individual=s decision making power, particularly financial
decision making power, to another. The grantor of the power, called the
principal, appoints an Aagent@ called the attorney in fact, to act on his or
her behalf.
5.
Durable Power of Attorney: Is Aa power of attorney by which a principal
designates another as the principal=s attorney in fact in writing and the
writing contains the words, >This power of attorney shall not be affected
by subsequent disability or incapacity of the principal, or lapse of time= or
>This power of attorney shall become effective upon the disability or
incapacity of the principal=, or similar words showing the [principal=s]
intent. . .@ KRS 386.093(1).
ADVANCE HEALTH CARE PLANNING AND LIVING WILLS
A.
The Doctrine of Informed Consent
1.
An ethical and legal doctrine which states that patients have the right to
be informed about proposed medical interventions and to voluntarily
consent to, or refuse, those interventions. Note, there are exceptions to
the need for informed consent including, emergency treatment and a
waiver by the patient.
2.
There are four elements that constitute adequate informed consent.
a.
A competent patient;
b.
Adequate information to allow the patient to make a meaningful
decision and understand the consequences;
i.
type of intervention; reasons for the intervention; risks and
benefits of the intervention; alternatives to intervention,
B.
C.
D.
c.
including doing nothing; and, the risks and benefits of any
alternatives.
Any decision must be voluntary; and,
d.
The patient must consent.
Kentucky=s Living Will Directive Act is found at KRS 311.621-311.641
1.
The living will creates a contract with the attending health care
professional. Once the living will is received and is properly signed and
witnessed, the health care professional has a duty to either honor its
instructions or to make sure the individual is transferred to the care of
another health care professional who will carry out the individual=s
wishes. (See attachment A).
2.
No person can be required to sign a living will; it must be a voluntary act.
KRS 311.637(2).
Kentucky=s Act contains treatment instructions for situations if the
individual has either:
1.
A terminal conditionBwhich is Aa condition caused by injury, disease or
illness which, to a reasonable degree of medical probability, as
determined solely by the patient=s attending physician and one (1) other
physician, is incurable and irreversible and will result in death within a
relatively short time, and where the application of life-prolonging
treatment would serve only to artificially prolong the dying process; KRS
311.621(16); or
2.
Is Apermanently unconscious@Bmeaning Aa condition which, to a
reasonable degree of medical probability, as determined solely by the
patient=s attending physician and one (1) other physician on clinical
examination, is characterized by an absence of cerebral cortical functions
indicative of consciousness or behavioral interaction with the
environment.@ KRS 311.621(12).
Who can make?
1.
Any adult with Adecisional capacity.@ KRS 311.623(1).
2.
Generally, not effective during pregnancy “unless, to a reasonable degree
of medical certainty, as certified on the woman’s medical chart by the
attending physician and one (1) other physician who has examined the
woman, the procedures will not maintain the woman in a way to permit
the continuing development and live birth of the unborn child, will be
physically harmful to the woman or prolong severe pain which cannot be
alleviated by medication.” KRS 311.629 (4).
3.
ADecisional capacity is defined as Athe ability to make and communicate
a health care decision.@ KRS 311.621 (5).
E.
F.
G.
H.
What can be done in a living will?
1.
Direct withholding or withdrawal of Alife prolonging treatment@ or not
authorize such withholding or withdrawal. KRS 311.623(1)(a);
2.
Direct the withholding or withdrawal of artificially provided nutrition and
hydration or not authorize such withholding or withdrawal.
KRS 311.623(1)(b);
3.
Designation of one or more adults to act as a surrogate health care
decision maker who will follow the directions contained in the Living Will
(can=t be an employee of health care facility unless a blood relative.)
KRS 311.623(1)(c) and KRS 311.625 (4).
4.
Directs the making of gifts to medical science or organ donation.
KRS 311.623(1) (d).
Elements of a Living Will
1.
The individual must lack Adecisional capacity,@ i.e., be incompetent.
2.
Although the Living Will is signed and executed in the present, it only
takes effect upon the onset of incapacity.
3.
The Living Will permits the individual to terminate life-sustaining treatment
in the case of a terminal condition or permanently unconscious state.
4.
The Living Will must be in writing and must comply with the statutory form
set out in KRS 311.625.
More definitions
1.
Life prolonging treatment is Aany means or medical procedure, treatment,
or intervention which: utilizes mechanical or other artificial means to
sustain, prolong, restore, or supplant a spontaneous vital function AND
when administered to the patient would only serve to prolong the dying
process.@ KRS 311.621 (11).
2.
Life prolonging treatment does not include treatment for the relief of pain.
KRS 311.621(11).
3.
Health care surrogate can only act when the grantor lacks decisional
capacity. KRS 311.629(2).
Formalities of Execution (See KRS 311.625(2))
1.
Maker must be over 18 and of sound mind;
I.
J.
2.
Living Will must be in writing;
3.
Dated;
4.
Signed by the grantor or at his or her direction; and,
5.
Either witnessed by two or more eligible adults in the presence of the
grantor and in the presence of each other, or acknowledged before a
notary. KRS 311.625(2).
6.
Ineligible Witnesses (See KRS 311.625(2)(a-e))
a.
A blood relative of the grantor;
b.
A beneficiary of the grantor under the intestacy laws;
c.
A health care facility employee where the grantor is a patient,
unless the employee serves as a notary;
d.
The grantor=s attending physician; and,
e.
Any person responsible for paying for the grantor=s health care.
Revoking a Living Will: KRS 311.627
1.
A writing signed and dated by the grantor declaring intent to revoke;
2.
The grantor=s oral statement of an intent to revoke, who has decisional
capacity, make in the presence of two witnesses, one of whom is a health
care provider; and,
3.
Destruction of the document by the grantor or another at the grantor=s
direction.
Termination of Life Prolonging Treatment without a Formal Advance
Directive
1.
The Doctrine of Substituted Judgment
a.
Under this doctrine, treatment is terminated on the theory that, but
for the patient=s incapacity, the patient would have requested
termination of life prolonging treatment given the circumstances.
b.
KRS 311.631 lists certain Aresponsible parties,@ in order of
priority, who are authorized (if they are Areasonably available,
willing, and competent to act@) to make health care decisions for
an Aadult patient, who does not have decisional capacity, and has
not executed an advance directive. . . AThe parties are:
K.
i.
The judicially appointed guardian of the patientBAif
medical decisions are with the scope of the
guardianship;@
ii.
The patient=s spouse;
iii.
AAn adult child of the patient, or if the patient has
more than one child, the majority of the adult
children who are reasonably available for
consultation;@
iv.
The patient=s parents; and,
v.
AThe nearest living relative of the patient, or if more
than one relative of the same relation is reasonably
available for consultation, a majority of the nearest
living relatives.@
Duties of the Health Care Surrogate:
1.
The surrogate must honor the decisions expressed by the grantor in any
advance directive and communicate those decisions to the attending
physician. KRS 311.629.
2.
If the grantor is incompetent, the named surrogate is permitted to make
any health care decision on behalf of the grantor that the grantor could
make, if competent. KRS 311.629.
3.
Under Kentucky Law, the surrogate shall consider the attending
physician=s recommendation. KRS 311.629.
4.
When two or more surrogates are appointed by the grantor, the
surrogates’ decision must be unanimous unless the Living Will specifies
otherwise. KRS 311.623(1)(c).
5.
A designated surrogate may resign at any time by giving written notice to
the grantor, the successor surrogate, if one is named, to the attending
physician, or any health care facility that is waiting for a decision. KRS
311.625(3).
a.
If the surrogate refuses or is unable to make a decision the
physician proceeds as if there is not surrogate. KRS 311.629(2).
6.
Health care employees, owners, directors and officers cannot act as
surrogates for patients in their facilities unless they are related to the
grantor with the fourth degree by blood or marriage, or are a member of
the grantor=s religious order. KRS 311.625(4).
7.
A court appointed fiduciary is bound by the terms of a grantor’s advance
directive and “if the advance directive designates a surrogate to make
health care decisions for the grantor, the surrogate may continue to act.
KRS 311.6231.
L.
M.
N.
Powers of Health Care Surrogate
1.
Surrogate can make any health care decision that grantor could make if
the grantor had decisional capacity. KRS311.629 (1)
.
2.
Surrogate can direct the withholding or withdrawal of artificially provided
nutrition and hydration if
a.
Death is imminent (Awithin a few days@); or
b.
Patient is permanently unconscious; or
c.
Grantor cannot assimilate the nutrition; or
d.
The burden of administering the nutrition or hydration outweighs
it=s benefit. KRS 311.629 (3) (a-d).
Refusal to Comply with Advance Directive: Who Is Not Bound
1.
The attending physician or health care facility must inform the grantor or
surrogate, and the family or guardian of the patient if they refuse to
comply with the patient=s living will or surrogate=s decision.
2.
The physician or health care facility shall Anot impede the transfer of the
patient to another physician or health care facility which will comply with
the advance directive.@ Medical records and Aother information@ or
medically necessary assistance must also be transferred.
KRS
311.633(2).
3.
Health care workers can also refuse to comply with the advance directive
if they state in writing their moral, religious or professional objection to the
living will. If this is done, the individual is protected from disciplinary
action by the facility and civil suit.
Immunity to Civil Liability and Criminal Prosecution: KRS 311.635
1.
A health care facility or person that acts based on a Living Will is not
subject to civil liability, criminal prosecution, or unprofessional conduct
charges.
2.
The facility or doctor is not required to make an independent
determination of a surrogate=s authority to act unless Aa person is in
possession of information as to the surrogate=s disqualification.@
O.
3.
Surrogate is also protected from civil suit and criminal prosecution.
4.
These immunities apply Aunless it is shown by a preponderance of the
evidence that the person whose actions are being questioned did not act
in good faith.
Patient Self Determination Act of 1990 and 1991
1.
2.
P.
In order to participate in Medicare and Medicaid, health care facilities and
care givers, including hospitals, nursing homes, home health agencies
and hospices, must do certain things at admission, including:
a.
Provide written information to adult patients concerning Aan
individual=s rights under State law. . .to make decisions
concerning such medical care, including the right to accept or
refuse medical or surgical treatment and the right to formulate an
advance directive;@
b.
Provide written information to adult patients concerning the
Awritten policies of the provider or organization respecting the
implementation of such rights;@
c.
Documenting the Aindividual=s medical record whether or not the
individual has executed an advance directive.@
d.
ANot to condition the provision of care or otherwise discriminate
against an individual based on whether or not the individual has
executed an advance directive;@
e.
ATo ensure compliance with requirements of state law. . .
respecting advance directives at facilities of the provider or
organization;@ and,
f.
Providing Aeducation for staff and the community on issues
concerning advance directives.@
Due to this law, many patients confront, for the first time, information
about advance directives upon their admission to a health care facility.
This puts the hospital employee in a very delicate and difficult position.
What a Living Will Does Not Cover:
Attorney for Health Care
1.
The Need for a Durable Power of
Limitations of a Living Will
a.
Only effective when the grantor:
i.
Lacks Decisional Capacity; and is
b.
c.
2.
ii.
Terminally Ill as defined in statute (gravely ill); or is
iii.
Permanently unconscious (a Persistent Vegetative State)
A Living Will delegates decision making with limited authority or
powers, notably absent are the following:
i.
Permission to access to Medical Records and other
personal information;
ii.
Authority to hire and fire medical care personnel;
iii.
Authority to ask for a second or third opinion;
iv.
To Authorize a ADo Not Resuscitate@ or ANo Code@ order;
v.
Take actions to protect the grantors rights;
vi.
Authorize unconventional treatments for relief of pain;
viii.
Grant releases and waivers including Aleaving the hospital
against medical advice@ or: refusal of consent to treat;@
ix.
Select a health care facility or other residence, or to
arrange a change of same;
x.
Control who visits;
xi.
Require that a person not be denied visitation (this is a
big issue with second marriages and non-traditional
relationships such as same-sex-couples;)
xii.
Make advance funeral arrangements;
xiii.
Arrange for limited organ donation;
xiv.
Incur costs for treatment in the name of the grantor; and
xv.
Sign documents as the grantor=s agent or attorney-infact.
These issues should be covered in a more detailed document
such as a Durable Power-of-Attorney for Health Care. The
Durable Power of Attorney for Heath Care can be incorporated
into the Living Will as long as the Living Will is in substantial
compliance with the statutory form. KRS 311.625 (1).
Do Not Resuscitate (DNR) or ANo Code@ Orders
a.
A living will is not a DNR! KRS 311.623(3)
b.
III.
The Living Will Act does not apply to ADo Not Resuscitate@
orders. Under the Act, Anotification to any emergency medical
responder. . .or any paramedic. . .of a person=s authentic wish not
to be resuscitated shall be recognized only if on a standard form
or identification approved by the Kentucky Board of Medical
Licensure, in consultation with the Cabinet for Human
Resources.@
DURABLE POWER OF ATTORNEY
A.
Saves time and expense by eliminating the need for other forms of substitute
decision-making such as guardianships. Unlike a regular power of attorney, a
Adurable@ power of attorney will become or remains effective upon disability or
incompetency.
B.
Power of Attorney may be general or limited and may take effect
immediately or Aspring@ into effect
1.
A general power of attorney gives the agent or attorney-in-fact complete
control over the principal=s finances.
2.
A limited or special power of attorney gives the attorney-in-fact only
limited power over the principal=s finances.
3.
The power of attorney may take effect immediately upon signing or spring
into effect upon the happening of a condition.
4.
Although signed by the principal, a springing power of attorney only takes
effect upon the happening of a certain condition unrelated to the
execution of the document.
5.
For example, the power of attorney would only become effective upon the
principal=s incapacity or incompetency, on a certain date, or any other
condition.
C.
To be durable the power must be in writing, contain language demonstrating the
principal=s intent to create an agency, and must contain the Amagic words@ to
show that the agency will not end with incapacity. BNote there are no formal
execution requirements except that the principal must be competent. The
lack of execution requirements is problematic, and may foster financial
exploitation.
D.
When grantor dies, POA is revoked when Attorney in fact receives notice of
death of grantor. KRS 386.093 (3).
E.
Disability only revokes a non-durable POA when the Attorney in fact learns of the
incapacity, as long AIF acts in good faith. KRS 386.093 (4).
F.
If POA is springing based on disability or incapacity, and the document does not
specify what standard is to be used to determine if the grantor is incapacitated or
disabled, then it determined based on the opinion of two licensed physicians
determining in writing that the Aprincipal is unable by reason of physical or
mental disability, to prudently manage or care for the principal=s person or
property@. KRS 386.093(5).
G.
Can be Revoked
H.
I.
1.
Written or oral notice of the revocation by the principal to the attorney in
fact; or,
2.
Written notice of the revocation recorded in the county clerk=s office.
3.
It is essential that the principal notify, in writing, any institution, including
banks and brokerage accounts that the POA has been revoked.
The Power Conveyed to the Attorney-In-Fact
1.
The attorney-in-fact can only exercise the power given to him or her in the
power of attorney document.
2.
Generally, such documents allow the attorney-in-fact to use the
principal=s assets to pay bills, buy and sell real estate, pay taxes, invest
in stocks, bonds, and mutual funds, buy and sell insurance policies and
annuities, and operate the individual=s small business.
3.
Generally, the attorney-in-fact must act in the principal=s best interest,
keep accurate records, and keep the principal=s property separate from
his or hers.
4.
A Durable Power of Attorney only includes the Power to make gifts if it
unambiguously says that this power is included. KRS 386.093 (6).
5.
This can be a very important provision if a gifting plan to avoid estate
taxes is in place, to carry out charitable giving plans, or to provide for
family members that the grantor is not otherwise obligated to support.
POA may be recorded if in proper form, Ain the manner prescribed for recording
conveyances.@ KRS 382.370. There are several ways to comply with the
statute. They are:
1.
Acknowledge the POA before the clerk; or
2.
Evidence of 2 subscribing witnesses; or
3.
One subscribing witness who also attests to the other witness; or
4.
Proof that both witnesses are dead and proof of the signature of one of
them and proof of signature of the grantor; or
5.
Proof that both witnesses are dead or out of state or one is dead and the
other is out of state and proof of the signature of one of the witness and
the grantor; or
6.
Signature acknowledged as above before a notary; or
7.
Signed or acknowledged by the grantor before a notary and two
witnesses. KRS 382.130.
J.
IV.
Reasons to Record A POA:
1.
If the original is lost a certified copy can be obtained.
2.
May be required such as for transfer of real property. KRS 382.370.
3.
Does not need to be recorded for transfer of title to a motor vehicle. OAG
93-82.
THE PROBLEMS WITH JOINT BANK AND BROKERAGE ACCOUNTS:
A.
All joint owners own the account making the account subject to judgments or
liens against any of the joint owners.
B.
Alternatives to joint ownership
1.
Access the account by way of valid Durable Power of Attorney (No
ownership interest).
2.
Payable on death or Transferable on Death designations to provide for
non-probate estate planning. KRS 397.1001, 292.6505, 292.6510.
Professor Allison Connelly
U.K. College of Law
Lexington, KY 40506
859.257.4692