Who Decides? Guardians, P.A.s, Conservators, P.O.A.s, and ... · 4 petitions for guardianship n probate court will often appoint a “guardian ad litem” (hereinafter “gal”)

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Who Decides? Guardians, P.A.s,

Conservators, P.O.A.s, and the DNR Act.

PRESENTED BY:MICHAEL J. LEBENBOM, Esq.

Lebenbom & Rothman, P.C. 2701 TROY CENTER DRIVE, STE. 450

TROY, MICHIGAN 48084Phone: (248) 362-9699Fax: (248) 362-1033

Email: [email protected]

GUARDIANSHIPS, CONSERVATORSHIPS, DURABLE POWER OF ATTORNEY, PATIENT ADVOCATE DESIGNATION

n Differencesn TERMS “GUARDIAN” (hereinafter “GA”) AND

“CONSERVATOR” (hereinafter “CA”) HAVE VERY SPECIFIC LEGAL DEFINITIONn APPOINTED BY PROBATE COURT ONLYn REQUIRES A PETITIONn REQUIRES A HEARINGn REQUIRES AN ORDER APPOINTING

GUARDIAN AND/OR CONSERVATORn REQUIRES “LETTERS OF AUTHORITY”


n Differences (cont.)n “DURABLE POWER OF ATTORNEY” (hereinafter “DPOA”) AND

“PATIENT ADVOCATE” (hereinafter “PA”) HAVE VERY SPECIFIC LEGAL DEFINITIONSn CREATED OUTSIDE COURT SYSTEM

n REQUIRES DOCUMENT SIGNED BY RESIDENT CREATING "DPOA" OR "PA“

n DOCUMENT MUST MEET REQUIRMENTS OF THE LAWn SPECIFIC LANGUAGE REQUIRED BY STATUTE

n WITNESSES’ SIGNATURES ARE REQUIRED FOR BOTH "PA" AND “DPOA”

n MUST BE CREATED WHILE THE RESIDENT IS COMPETENT

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n SIMILARITIESn "CA", "GA", "PA", "DPOA" DO NOT EXIST

WITHOUT A DOCUMENT TO PROVE THEY EXISTn "GA"– ISSUED LETTERS OF GUARDIANSHIPn “CA”- ISSUED LETTERS OF

CONSERVATORSHIPn "DPOA" AND "PA" REQUIRE PROPERLY

EXECUTED DOCUMENTS SIGNED BY RESIDENT

GUARDIANS ("GA")n HANDLES THE DAY TO DAY DECISIONS

n MEDICALn CUSTODYn SOCIAL

n CAN HANDLE MONTHLY INCOME ONLY n REQUIRES “LETTERS OF GUARDIANSHIP” TO

PROVE THEY ARE GUARDIAN (see copy of “LETTERS OF GUARDIANSHIP” next slide)

n WITHOUT THEM THE PERSON IS NOT THE GUARDIAN.

n MUST BE SIGNED BY THE PROBATE JUDGEn MUST BE CURRENT AND ACTIVE

n NEW LETTERS MUST BE PRESENTED EVERY YEAR.

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PETITIONS FOR GUARDIANSHIP

n RESIDENT MUST BE INCOMPETENT n BE SURE THAT THE RESIDENT IS

INCOMPETENT BEFORE FILING n YOU WILL BE SEEING THAT JUDGE IN THE

FUTURE.n YOU DON’T WANT A BAD REPUTATION FOR

FILING PETITIONS WHERE THE PERSON IS COMPETENT.


n PETITIONER MUST PROVE RESIDENT LACKS SUFFICIENT UNDERSTANDING OR CAPACITY TO MAKE OR COMMUNICATE INFORMED DECISIONS. n MUST PROVE THIS BY “CLEAR AND

CONVINCING EVIDENCE.”n SPECIFIC EXAMPLES OF THE RESIDENT’S

CONDITION AND RECENT CONDUCT.


n FACILITY MAY FILE FOR GUARDIANSHIP.

n FACILITY MAY NOT BECOME THE GUARDIAN.

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n PROBATE COURT WILL OFTEN APPOINT A “GUARDIAN AD LITEM” (hereinafter “GAL”).n GAL IS THE EYES AND EARS OF THE COURT.

n VISITS RESIDENT. n MUST PROVIDE INFORMATION TO RESIDENT ABOUT

PETITION AND RESIDENT’S RIGHTS.n INCLUDING THE RIGHT TO OBJECT TO A D.N.R. ORDER (SEE

BELOW)

n GAL CAN BE THE BEST ADVOCATE FOR THE FACILITY’S PETITION.

WHAT THE "GA” SHOULD AND SHOULD NOT DOn DOES NOT MAKE FINANCIAL DECISIONS

n EXCEPT FOR MONTHLY INCOME

n CAN AND SHOULD FILE FOR MEDICAIDn MAY HAVE TROUBLE GETTING SOME FINANCIAL

INFORMATION (E.G. PENSIONS, SOME BANKS) n THIS MAY REQUIRE ADDITIONAL ORDERS FROM THE

COURT

WHAT THE "GA” SHOULD AND SHOULD NOT DOn CAN AND SHOULD APPEAL MEDICAID

DENIAL n BE PREPARED WITH AT LEAST TWO NAMES OF

MEDICAID PLANNING ATTORNEYS TO REFER FAMILY TO. n SOMETIMTES THE FACILITY WILL HAVE TO PAY FOR

ATTORNEY.

n FACILITY SHOULD BE PREPARED TO ASSIST IN THE APPEAL

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Special Orders in GA cases

n Requires an Attorney to draft.n Can result in accounting.n Can result in repayment of

misappropriated money.n Can force cooperation with Medicaid

n From familyn From financial institutions.

PATIENT ADVOCATE DESIGNATION

n "PA" MAKES DECISIONS CONCERNING HEALTH RELATED MATTERSn RESTRICTED BY THE TERMS OF THE


REQUIREMENTS FOR A VALID PATIENT ADVOCATE DESIGNATION

n 18 YEARS OF AGE OR OLDER; AND n SOUND MIND AT THE TIME THE

DESIGNATION IS MADE; ANDn DESIGNATION MUST BE IN WRITING,

SIGNED, DATED; AND

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REQUIREMENTS FOR A VALID PATIENT ADVOCATE DESIGNATION (cont.)

n EXECUTED IN THE PRESENCE OF AND SIGNED BY 2 WITNESSESn WITNESS CANNOT BE:

n SPOUSE,n CHILD, n PARENT, GRANDCHILD, SIBLING, PRESUMPTIVE HEIR, KNOWN

DEVISEE AT THE TIME OF WITNESSING, RESIDENT’S PHYSICIAN, OR PATIENT ADVOCATE.

n A WITNESS CANNOT BE AN EMPLOYEE OF THE HEALTH FACILITY OR OF A HOME FOR THE AGED WHERE THE RESIDENT LIVES.

n DON’T WITNESS THE PA.

n A WITNESS “SHALL NOT” SIGN THE DESIGNATION UNLESS THE PATIENT APPEARS TO BE OF SOUND MIND AND UNDER NO DURESS, FRAUD, OR UNDUE INFLUENCE.


n BEFORE IT BECOMES EFFECTIVE THE DESIGNATION MUST BE MADE PART OF

n THE ATTENDING PHYSICIAN’S MEDICAL RECORD

n THE MEDICAL RECORD OF THE FACILITY WHERE THE PATIENT IS LOCATED.


n THE DESIGNATION MUST INCLUDE A STATEMENT THAT THE AUTHORITY CONFERRED UNDER THE DESIGNATION IS EXERCISABLE ONLY WHEN THE PATIENT IS UNABLE TO PARTICIPATE IN MEDICAL TREATMENT DECISIONS.

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n BEFORE ACTING AS THE PATIENT ADVOCATE ("PA") THE DESIGNATED "PA" MUST SIGN AN ACCEPTANCE OF THE DESIGNATION.

n MCL 700.5507 ACCEPTANCE INCLUDES:n PATIENT MUST BE UNABLE TO PARTICIPATE IN

DECISIONS; n PA CAN ONLY DECIDE TO WITHHOLD TREATMENT IF

THAT AUTHORITY IS EXPRESSED IN CLEAR AND CONVINCING MANNER;

n PA IS FIDUCIARY n 7 MORE STATEMENTS.


n BEFORE THE DESIGNATION CAN TAKE EFFECT THE PATIENT’S ATTENDING PHYSICIAN AND ANOTHER PHYSICIAN OR LICENSED PSYCHOLOGIST SHALL EXAMINE THE PATIENT AND MAKE A DETERMINATION IN WRITING THAT THE PATIENT IS UNABLE TO PARTICIPATE IN THEIR MEDICAL TREATMENT DECISIONS.

n THE DETERMINATION MUST BE n MADE A PART OF THE CLINICAL RECORD.n REVIEWED NOT LESS THAN ANNUALLY.


n THE "PA" MAKES HEALTHCARE RELATED DECISIONS ONLY.

n UNLESS THEY HAVE SOME OTHER POWER TO MAKE OTHER DECISIONS ("DPOA", "CA").

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n "PA" CANNOT DELEGATE HIS/HER POWERS UNDER THE DESIGNATION WITHOUT PRIOR AUTHORIZATION BY THE PATIENTn PRESUMABLY MEANS

n AUTHORIZATION MUST BE IN WRITINGn MUST BE MADE BEFORE THE RESIDENT IS

DEEMED INCOMPETENT.

PATIENT ADVOCATE DESIGNATIONn "PA" DESIGNATION IS SUSPENDED WHEN THE

RESIDENT REGAINS THE ABILITY TO PARTICIPATE IN DECISIONS REGARDING TREATMENT.n DOCUMENT THIS CHANGE CAREFULLY.

n SUSPENSION CONTINUES UNTIL THERE IS A WRITTEN DETERMINATION BY THE RESIDENT’S ATTENDING PHYSICIAN AND ANOTHER PHYSICIAN OR LICENSED PSYCHOLOGIST THAT THE RESIDENT IS AGAIN INCOMPETENT.n SAME PROCESS AS SLIDE 19, ABOVE.


n BEFORE THE "PA" CAN ACT, YOU MUST HAVE A CLEAR COPY OF THE ACTUAL DESIGNATION.n DON’T ACCEPT THE PA’S WORD THAT

HE/SHE IS THE "PA". n CHECK THE DESIGNATION TO MAKE

SURE DESIGNATION MEETS ALL REQUIREMENTS OF THE LAW (see above).

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REVOKING A PATIENT ADVOCATE

n PATIENT MAY REVOKE AT ANY TIME AND IN ANY MANNER BY WHICH PATIENT IS ABLE TO COMMUNICATE “AN INTENT” TO REVOKE.n EVEN IF THEY ARE UNABLE TO

PARTICIPATE IN MEDICAL TREATMENT DECISIONS.

REPLACING A "PA" WITH A GUARDIAN

n THE PROBATE COURT MAY REMOVE THE "PA" IF THE COURT FINDS:n THE DESIGNATION WAS NOT EXECUTED IN

COMPLIANCE WITH M.C.L. 700.5506; OR n THE "PA" IS NOT COMPLYING WITH THE

TERMS OF THE DESIGNATION OR OF THE PATIENT ADVOCATE ACT M.C.L. 700.5506 TO 5512; OR

n THE "PA" IS NOT ACTING CONSISTENT WITH THE WARD'S BEST INTERESTS.

REPLACING A "PA" WITH A GUARDIAN

n FACILITY MAY FILE A PETITION TO REMOVE THE “PA”n Must be done by an attorney

n Requires expertisen No form to file.n Practice of law without a license.

n Not a common practice for the Probate Courtn Argument involves understanding of law as well

as facts.

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CHANGES TO THE DO-NOT-RESUSCITATE PROCEDURES ACT.

n IT APPLIES IN ALL SETTINGS OUTSIDE THE HOSPITAL

n GUARDIANS CAN SIGN DNR ORDERS, AS LONG AS THEY FOLLOW THE LAW.

n THERE IS A STATUTORY DNR ORDER FORM FOR GA TO SIGN.

n THE LIABILITY PROTECTIONS ARE EXTENDED TO NFs, AFCs, HFAs, ASST. LIVNG.

DNR ORDERS

n DNR ORDER MUST:n BE SUBSTANTIALLY THE SAME AS THE

FORM FOUND IN SECTION 4 OF THE DO-NOT-RESUSCITATE PROCEDURES ACT “DNRPA” (MCL 333.1054)

n THE FORM MUST BE DATED AND EXECUTED VOLUNTARILY.

DNR ORDERS FOR INCOMPETENT RESIDENTS WITH GUARDIANS

n AS OF FEBRUARY 4, 2014 GUARDIANS WHO FOLLOW THE NEW LAW CAN SIGN DO-NOT-RESUSCITATE ORDERS (“DNR”).

n GUARDIANS MUST FOLLOW ALL REQUIREMENTS OF THE LAWn E.P.I.C. (MCL 700.5314)n LARA requiring documents from facilities

that GA followed law.

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GUARDIANS AND DO-NOT-RESUSCITATE ORDERS: REQUIREMENTS OF MCL 700.5314

n GA MUST :n VISIT THE WARD AND IF MEANINGFUL

COMMUNICATION IS POSSIBLE, CONSULTS WITH THE WARD ABOUT THE DNR ORDER

n CONSULT DIRECTLY WITH THE WARD’S ATTENDING PHYSICIAN AND OBTAIN THE SPECIFIC MEDICAL INDICATIONS THAT WARRANT A DNR ORDER.

n DO THE ABOVE EVERY YEAR

WHAT TO DO IF A DNR ORDER IS NOT APPROPRIATE FOR THE RESIDENT

n ANY PERSON INTERESTED IN THE WELFARE OF THE RESIDENT MAY FILE A PETITION WITH THE PROBATE COURT TO REVIEW THE DNR ORDER.

n THE COURT CAN VOID THE DNR ORDER.

REVOKING A DNR ORDER

n A RESIDENT CAN REVOKE A DNRORDER AT ANY TIME AND IN ANY MANNER BY WHICH THEY CAN COMMUNICATE THE REVOCATION.n IF THE REVOCATION IS NOT IN WRITING

THE PERSON WHO OBSERVES THE REVOCATION MUST:n PUT IT IN WRITINGn SIGN THE WRITING

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n IF THE REVOCATION IS OBSERVED (NOT IN WRITING) IT MUST BE:n DOCUMENTED IN WRITINGn DELIVERED TO THE RESIDENT’S

ATTENDING DR.; AND n DELIVERED TO THE ADMINISTRATOR OF

THE FACILITY OR THE ADMIN.’S DESIGNEE.


n A PATIENT ADVOCATE OR GUARDIAN MAY ONLY REVOKE BY:n ISSUING THE REVOCATION IN WRITING;

ANDn Delivering the “ACTUAL NOTICE” OF THE

REVOCATION to:n THE RESIDENT’S ATTENDING DR.; ANDn THE FACILITY ADMINISTRATOR OR THE

ADMIN.’S DESIGNEE.


n ACTUAL NOTICE = PHYSICALLY PRESENTING THE WRITTEN REVOCATION.

n “ADMINISTRATOR’S DESIGNEE” IS NOT DEFINEDn THE FACILITY SHOULD DESIGNATE A

PERSON OTHER THAN THE ADMIN. TO RECEIVE THE DNR ORDER AND REVOCATION.

n MAKE IT A PART OF ADMISSION TO TELL FAMILY WHO THAT PERSON IS

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n IF THE ADMINISTRATOR OR THE ADMIN.’S DESIGNEE RECEIVES “ACTUAL NOTICE” OF THE REVOCATION THEY MUST MAKE IT A PART OF THE PERMANENT MEDICAL RECORD.

ENFORCEMENT OF A DNR ORDER

n FIRST DETERMINE IF THE RESIDENT HAS 1 OR MORE VITAL SIGNS.n MUST BE DONE BY A DR., NURSE, OR

MEDICAL FIRST RESPONDER.

n IF RESIDENT HAS NO VITAL SIGNS AND HAS A DNR BRACELET OR THE FACILITY HAS “ACTUAL NOTICE” OF A DNR ORDER, THEN NO C.P.R.

LIABILITY PROTECTION

n YOU ARE PROTECTED IF YOU PROVIDE C.P.R. TO A PERSON WITH A DNR ORDER, UNLESS YOU HAVE RECEIVED “ACTUAL NOTICE” OF THE DNR ORDER.

n YOU ARE PROTECTED IF YOU FOLLOW A DNR ORDER AND WITHHOLD C.P.R., UNLESS YOU RECEIVED “ACTUAL NOTICE” OF THE REVOCATION.

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DNR ORDERS - YOUR DUTY UNDER FEDERAL AND STATE LAW

n FACILITIES PROBABLY HAVE AN OBLIGATION UNDER FEDERAL AND STATE LAW TO:n PROTECT RESIDENTS AGAINST P.A.’S AND

GA’S WHO SIGN A DNR WITHOUT FOLLOWING THE LAW.

n EVALUATE RESIDENTS TO ASSURE DNR ORDERS ARE APPROPRIATE.

DNR ORDERS - YOUR DUTY UNDER FEDERAL AND STATE LAW

n FACILITIES PROBABLY HAVE AN OBLIGATION UNDER FEDERAL AND STATE LAW TO (CONT.):n ASSURE THAT REVOCATIONS ARE

PROPERLY DOCUMENTED.n TAKE ACTION IN PROBATE COURT IF DNR

ORDER IS INAPPROPRIATE.

BE SURE THAT THE PA HAS AUTHORITY TO SIGN A DNR ORDER

n PATIENT ADVOCATES CAN SIGN DNR ORDERS, BUT ONLY IF:n THE PATIENT ADVOCATE DESIGNATION IS IN FULL FORCE

AND EFFECT (SEE ABOVE)

n THE DESIGNATION CONTAINS CLEAR AND CONVINCING STATEMENTS THAT

n THE "PA" IS AUTHORIZED TO MAKE A DECISION TO WITHHOLD OR WITHDRAW TREATMENT THAT WOULD ALLOW A RESIDENT TO DIE; AND

n THE RESIDENT ACKNOWLEDGES THAT SUCH A DECISION WOULD OR COULD ALLOW THE RESIDENT TO DIE.

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NORMAL DAY TO DAY MEDCIAL DECISIONS

n THE ONLY PERSONS WHO CAN MAKE MEDICAL DECISIONS ARE:n THE RESIDENT, n PA (LIMITED BY THE TERMS OF THE PAD),n THE GA

LIFE ENDING MEDICAL DECISIONS

n LIFE ENDING DECISION CAN ONLY BE MADE BY:n COMPETENT RESIDENTn PA WITH PROPER AUTHORITY IN PAD,n GA WITH SPECIFIC COURT ORDER

(EXCEPT FOR DNR, SEE ABOVE)n Decisions to refuse treatment required

to save a resident’s life include:n Hospitalization, food, hydration, intravenous

liquids, etc.

HELPFUL INFORMATION TO SHARE WITH RESIDENTS ABOUT ADVANCE DIRECTIVES

n “Planning for your Peace of Mind A Guide to Medical and Legal Decisions”n From State Legislature. n Gives details of advance directives and a

form for Patient Advocate Designation and Acceptance.

n http://www.legislature.mi.gov/documents/publications/peaceofmind.pdf

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DURABLE POWER OF ATTORNEY

n A DURABLE POWER OF ATTORNEY (“DPOA”) IS THE PERSON DESIGNATED BY THE RESIDENT TO ACT IN ALL MATTERS CONCERNING FINANCIAL AFFAIRS.

n “STANDS IN THE SHOES” OF THE RESIDENT, ACTING IN PLACE OF THE RESIDENT.


n MCL 700.5501 - REQUIRMENTSn MUST BE IN WRITINGn MUST CONTAIN THE WORDS

n “THIS POWER OF ATTORNEY IS NOT AFFECTED BY THE PRINCIPAL'S SUBSEQUENT DISABILITY OR INCAPACITY, OR BY THE LAPSE OF TIME”, OR

n “THIS POWER OF ATTORNEY IS EFFECTIVE UPON THE DISABILITY OR INCAPACITY OF THE PRINCIPAL”, n OR SIMILAR WORDS


n MUST BE DATEDn SIGNED VOLUNTARILY BY THE

RESIDENT (OR BY A NOTARY PUBLIC ON THEIR BEHALF).

n WITNESSED BY EITHER:n 2 PERSONS (NEITHER OF WHOM ARE THE

DPOA); AND/ORn NOTARIZED

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n ACKNOWLEDGEMENT OF DUTIES AND RESPONSIBILITIES FORM (SEE MCL 700.5501 FOR DUTIES) n INCLUDES STATEMENT “I MAY BE SUBJECT TO

CIVIL OR CIMINAL PENALTIES IF I VIOLATE MY DUTIES TO THE PRINCIPAL.


n FACILITY CAN REQUIRE THE DPOA SIGN THE ACKNOWLEDGEMENT OF DUTIES AND RESPONSIBILITIES FORM BEFORE RECOGNIZING THE DPOA’S AUTHORITY.


n DOES NOT APPLY TO A DPOA EXECUTED BEFORE OCTOBER 1, 2012

n REQUIREMENTS DON’T APPLY TO PATIENT ADVOCATE DESIGNATIONS (THE PAD REQUIRMENTS MUST BE MET)

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n "DPOA" DOCUMENTS MUST BE GIVEN TO FACILITY n NEVER TAKE ANYONE’S WORD THAT A "DPOA"

EXISTS. n REQUIRE THE ACKNOWLEDGEMENT FORM.

n IT GIVES YOU A BETTER POSITION IN A LAWSUIT.

n DPOA’s POWER IS AS LIMITED OR EXPANSIVE AS THE DOCUMENT THAT CREATES IT.

CONSERVATORSHIP

n A CONSERVATOR (“CA”) IS A PERSON APPOINTED BY THE PROBATE COURT TO HANDLE THE RESIDENT’S FINANCIAL AFFAIRS.

n IF THE FACILITY IS OWED A DEBT, IT MAY FILE A PETITION FOR APPOINTMENT OF CONSERVATOR

CONSERVATORSHIP

n LIKE A PETITION FOR "GA", THE COURT IS LIKELY TO APPOINT A “GUARDIAN AD LITEM”

n (SEE INFORMATION ON GUARDIAN AD LITEM, ABOVE)

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CONSERVATORSHIPCONSERVATORS ARE ISSUED “LETTERS OF

CONSERVATORSHIP” BY THE PROBATE COURT. n LIKE "GA", LETTERS MUST BE SIGNED BY JUDGE

(CAN BE A STAMP).n CA MUST FILE ANNUAL ACCOUNT WHICH MUST

BE APPROVED BY THE COURT.n COURT CAN SUSPEND CA OR REMOVE CA BASED

ON FAILURE TO FILE ANNUAL ACCOUNT OR FOR OTHER REASONS.

n FACILITY SHOULD CHECK WITH COURT EACH YEAR TO BE SURE CA CONTINUES TO HAVE AUTHORITY.

Documents

Who Decides? Guardians, P.A.s, Conservators, P.O.A.s, and ... · 4 petitions for guardianship n probate court will often appoint a “guardian ad litem” (hereinafter “gal”)