Supportive Decision Making Alternatives to Article 17A Guardianship

Supportive Decision Making Alternatives to Article 17A Guardianship

George H. Gray

Presented by George H. Gray Member of Starbridge Board of Directors since 1990. Attorney in private practice in the Rochester area for over 38 years. Practices in the areas of Wills, Trusts and Estates as well as counseling families with a loved one with a disability. Extensive experience in the creation and administration of Supplemental Needs Trusts and Article 17A Guardianship. Author of a book entitled SPECIAL NEEDS PLANNING: A Simple Guide for Families in New York with a Loved One with a Disability, released by the publisher, GrayLake Publishing, in October, 2014.

Acknowledgment This webinar discusses the lives of persons with an intellectual or developmental disability ( PWIDD ). New York State is late adopting person first language when referring to PIWDD. It took until July, 2016 for the New York Legislature to amend Article 17 A of the Surrogate s Court Procedure Act (the SCPA ) to substitute intellectual disability for the term mentally retarded when referring to persons for whom a guardian will be appointed.

Parameters of 17 A Guardianship Article 17A Guardianships apply only to persons who have an intellectual disability or who have a developmental disability. Health care decision authority is allowed as an additional power granted to a 17 A Guardian. A Health Care Proxy is an alternative available to a parent who does not secure the additional power to make health care decisions as a 17 A Guardian. A Power of Attorney is an alternative available to a parent who does not seek 17 A Guardianship.

A Person s right to make Health Care Decisions

Capacity to make health care decisions

Parent s Authority to make health care decisions as 17 A Guardian If the doctors make a determination that the PWIDD lacks capacity to make health care decisions for him/herself, then the Court will grant the 17 A Guardian the power to make such decisions on behalf of the PWIDD. This health care decision power is in addition to the other powers given to the Guardian under SCPA Article 17 A. The Guardian s authority to make health care decisions is similar to the powers given an agent under the New York Health Care Proxy Law.

Scope of Guardian s Authority If granted by the Surrogate s Court, the 17 A Guardian has the authority to make any and all health care decisions on behalf of the PWIDD which the PWIDD could make if he/she had capacity. Such decisions may include decisions to withhold or withdraw life sustaining treatment. Life sustaining treatment includes cardiopulmonary resuscitation and nutrition and hydration provided by means of medical treatment.

Standard of Exercised Authority The 17 A Guardian must base all advocacy and health care decision making solely and exclusively: i. on the best interests of the PWIDD; and ii. when reasonably known or ascertainable with reasonable diligence, on the PWIDD s wishes, including moral and religious beliefs.

Rights of a 17-A Guardian who is granted authority to make health care decisions

Competency to Execute a Health Care Proxy Every adult is presumed competent to appoint a health care agent unless, among other things, an Article 17 A Guardian has been appointed for him or her. While this presumption exists, an adult with a 17 A Guardian appointed may nevertheless be deemed competent to appoint a health care agent if the PWIDD comprehends that he or she: (i) has delegated authority to make health care decisions to another person; (ii) has expressed a desire that the other person exercise the decision making authority; and (iii) knows that the decisions to be made relate to his or her health care.

Capacity vs. Competence Capacity is the ability to understand and appreciate the nature and consequences of the health care decision itself, including its benefits and risks. Competence is more general in nature and involves the ability to successfully make an appropriate decision which has an impact on the person s life.

Execution of a Health Care Proxy A competent adult (called a principal ) appoints a Health Care agent by signing and dating a Health Care Proxy (a HCP ) in the presence of two adult witnesses who must also sign the HCP. The witnesses must state that the principal appeared to execute the proxy willingly and free from duress. The person appointed as the Health Care agent can not act as witness to execution of the HCP.

Special rules for residents of OPWDD Certified Sites If the PWIDD resides in a mental hygiene facility operated or licensed by OPWDD: i. at least one witness to the HCP must be an individual who is not affiliated with the facility; and ii. at least one witness to the HCP must be a physician or clinical psychologist meeting the specific qualifications outlined in the HCP statute.

Special rules for residents of Sites certified by Office of Mental Health If the PWIDD resides in a mental hygiene facility operated or licensed by the Office of Mental Health: i. at least one witness to the HCP must be an individual who is not affiliated with the facility; and ii. if the mental hygiene facility is also a hospital at least one witness to the HCP must be a qualified psychiatrist.

Commencement of the Agent s Authority The agent's authority to act on behalf of the principal begins at the time the attending physician determines in a writing (included in the patient s medical record) that the principal lacks capacity to make health care decisions. For a decision to withdraw or withhold life sustaining treatment, the attending physician who makes the determination that a principal lacks capacity to make health care decisions must consult with another physician to confirm such determination and include the results of the consultation in the patient's medical record.

Special rules for Persons with Developmental Disabilities If the attending physician determines that a patient lacks capacity because of a developmental disability, the attending physician who makes the determination must be, or must consult, for the purpose of confirming the determination, with a physician or clinical psychologist meeting the specific qualifications outlined in the HCP statute. A record of such consultation must be included in the patient's medical record.

Special rules for Persons with Mental Illness If an attending physician of a patient in a general hospital or mental hygiene facility determines that a patient lacks capacity because of mental illness, the attending physician who makes the determination must be, or must consult, for the purpose of confirming the determination, with a qualified psychiatrist. A record of such consultation must be included in the patient's medical record.

Scope of Agent s Authority An agent has the authority to make any and all health care decisions on the principal's behalf that the principal could make. An agent under a HCP is considered the personal representative of the PWIDD under HIPAA and is granted full access to the PWIDD s protected health information. The HCP can modify or restrict the agent s authority to make health care decisions.

Duration of Agent s Authority A competent adult may revoke a HCP by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the HCP. A HCP will also be revoked when the principal executes a subsequent HCP.

Equivalence of a Living Will The creation by the principal of written wishes or instructions about health care, or limitations upon the agent's authority, will not revoke a HCP unless such wishes, instructions or limitations expressly provide otherwise. Such wishes, instructions or limitations will constitute evidence of the principal's wishes for purposes of governing the decisions of the agent. Such wishes, instructions or limitations are often included as part of the written text of the HCP to serve the function of a living will.

Standard for Agent s exercise of decision making authority Before making a health care decision, the agent must consult with an appropriate health care professional. The agent must make health care decisions: i. in accordance with the principal's wishes, including the principal's ii. religious and moral beliefs; or if the principal's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the principal's best interests. If the principal's wishes regarding the administration of artificial nutrition and hydration are not reasonably known and cannot with reasonable diligence be ascertained, the agent may not make decisions regarding these measures.

Power of Attorney If a person has capacity and is over the age of 18, he or she may sign a power of attorney (a POA ) by which a principal designates an agent to act on his or her behalf. The person signing a POA and delegating authority to another person to act on his or her behalf is called the principal. The person named in the POA to whom the power to act on behalf of the principal is called the agent.

Capacity to Execute a POA Capacity means the ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a POA, any provision in a POA, or the authority of any person to act as agent under a POA.

Health Care Decisions An agent may not make health care decisions for the principal under a POA. Instead, the principal must execute a HCP to designate another person to make health care decisions.

Requirements for a Valid POA The principal must sign and date the POA and have his or her signature acknowledged in the same manner a deed is acknowledged for recording in the County Clerk s office. In addition, the agent appointed by the POA must sign and date the POA and have his or her signature acknowledged in the same manner a deed is acknowledged for recording in the County Clerk s office.

Effective Date of POA A POA is effective once the principal and agent sign it and have their signatures acknowledged. It is a popular misconception that a POA only has effect upon the incapacity of the principal. To the contrary, the POA is effective when it is signed; and the agent can act upon it at any time thereafter.

Durable POA A power of attorney is durable unless it expressly provides that it is terminated by the incapacity of the principal. Generally, the principal will sign a durable POA which means that it will not be revoked or terminated by the subsequent incapacity of the principal.

Statutory POA The State of New York has drafted the form of a POA called a Statutory Short Form POA. If the prescribed Statutory Short Form POA is used, financial institutions doing business in New York cannot reject the form without reasonable cause. In other words; a financial institution must accept the Statutory Short Form POA and cannot insist upon the use of its own unique form in its dealings.

Short Form POA If a Statutory Short Form POA includes some or all of the fourteen phrases which are defined in full in the statute, the POA will incorporate the full text of the statutory language by reference without having to set it forth the powers in full. The range of powers span financial, tax, insurance and banking transactions as well as business dealings and involvement with any type of dispute, litigation or property.

Agent s Duty to Follow the Instructions of the Principal The agent is in a fiduciary relationship with the principal and has the duty to act according to any instructions from the principal or, where there are no instructions, in the best interest of the principal.

Agent s Duty to Avoid Conflicts of Interest The agent has the duty: i. to avoid conflicts of interest; ii. to keep the Principal's property separate and distinct; iii. to not make gifts to him/herself without specific authorization in a POA

Agent s Duty to Keep Records An agent has the duty: i. to keep a record of all receipts, disbursements, and transactions entered into by the agent on behalf of the principal; and ii. to make such record and POA available to the principal or to third parties at the request of the principal

Revocation of a POA A principal may revoke a POA: i. in accordance with its terms; or ii. by delivering a revocation to the agent in person or by sending a signed and dated revocation by mail or other form of communication. The agent must comply with the principal's revocation notwithstanding the actual or perceived incapacity of the principal unless the principal is subject to a MHL Art. 81 Guardianship.

Termination of a POA A POA terminates: i. upon the death of the Principal; or ii. upon the revocation by the Principal; or iii. upon the revocation of the power of an agent and there is no co agent or successor agent to act; or iv. upon the death, resignation or incapacity of an agent and there is no co agent or successor agent to act.

George H. Gray

1650 South Avenue, Suite 200 Rochester, NY 14620 P: 585 546 1700 F: 585 224 7100 www.starbridgeinc.org