Substitute Decision-Substitute Decision-Making Making

in New Jerseyin New Jersey

Presented by Presented by Donald D. Vanarelli, Esq. Donald D. Vanarelli, Esq.

Certified Elder Law AttorneyCertified Elder Law AttorneyAccredited Professional Accredited Professional

MediatorMediatorRegistered GuardianRegistered Guardian

CapacityCapacity

The degree to which a person is able to The degree to which a person is able to understand information relevant to a understand information relevant to a specific decision and to appreciate the specific decision and to appreciate the reasonably foreseeable consequences of reasonably foreseeable consequences of the decision (or of the failure to make the the decision (or of the failure to make the decision). decision).

Capacity is really a definition of adequate Capacity is really a definition of adequate comprehension for decision-makingcomprehension for decision-making

Standards of CapacityStandards of Capacity

Testamentary Capacity - testator must Testamentary Capacity - testator must recognize the natural objects of his/her recognize the natural objects of his/her bounty and the nature and extent of bounty and the nature and extent of his/her estate on the date of will his/her estate on the date of will execution.execution.

Contractual Capacity - contractor must Contractual Capacity - contractor must understand the nature of the understand the nature of the transaction and consequences of transaction and consequences of his/her acts.his/her acts.

Standards of CapacityStandards of Capacity

Donative Capacity - donor must Donative Capacity - donor must understand the nature and effect of the understand the nature and effect of the transaction.transaction.

Trust Capacity - grantor must have the Trust Capacity - grantor must have the capacity to contract and to donate capacity to contract and to donate property.property.

Power of Attorney/Living Will Capacity - Power of Attorney/Living Will Capacity - requires the capacity to contract.requires the capacity to contract.

Definition of Definition of “Incapacitated Individual”“Incapacitated Individual”

1. An individual who is impaired by 1. An individual who is impaired by reason of mental illness or mental reason of mental illness or mental deficiency to the extent that he or she deficiency to the extent that he or she lacks sufficient capacity to govern lacks sufficient capacity to govern him/herself and manage his/her him/herself and manage his/her affairs.affairs.

Definition of “Incapacitated Definition of “Incapacitated Individual” (cont’d.)Individual” (cont’d.)

2. An individual who is impaired by 2. An individual who is impaired by reason of physical illness or disability, reason of physical illness or disability, chronic use of drugs, chronic chronic use of drugs, chronic alcoholism or other cause (except alcoholism or other cause (except minority) to the extent that he or she minority) to the extent that he or she lacks sufficient capacity to govern lacks sufficient capacity to govern him/herself and manage his/her him/herself and manage his/her affairs.affairs.

Capacity vs. Capacity vs. CompetencyCompetency

The law recognizes both standards of The law recognizes both standards of competency and degrees of capacity to make competency and degrees of capacity to make decisions in various areas.decisions in various areas.

A person may be unable to govern him/herself A person may be unable to govern him/herself and manage his/her personal and financial and manage his/her personal and financial affairs (i.e., legally incompetent), yet retain affairs (i.e., legally incompetent), yet retain capacity to make decisions in limited capacity to make decisions in limited situations.situations.

Court-Imposed Court-Imposed Substitute Decision-Substitute Decision-

MakingMaking

ConservatorshipsConservatorships

GuardianshipsGuardianships

ConservatorshipConservatorship

The person in need is The person in need is notnot incapacitated. incapacitated. Because of advanced age, illness or Because of advanced age, illness or

physical infirmity, the individual cannot physical infirmity, the individual cannot provide for him/herself.provide for him/herself.

Must be initiated by the person needing Must be initiated by the person needing assistance.assistance.

Cannot be established if the person in Cannot be established if the person in need objects.need objects.

Nature and Use of Nature and Use of GuardianshipsGuardianships

A guardianship is a legal mechanism A guardianship is a legal mechanism designed to provide surrogate decision-designed to provide surrogate decision-making and financial management for a making and financial management for a person who is no longer able to govern person who is no longer able to govern him/herself and who has not made him/herself and who has not made alternate voluntary arrangements.alternate voluntary arrangements.

Characteristics of Characteristics of GuardianshipsGuardianships

Involuntary. Involuntary. Imposed by Court.Imposed by Court. Only for persons who are legally Only for persons who are legally

incompetent - medical evidence incompetent - medical evidence needed. needed.

Alternate voluntary arrangements - Alternate voluntary arrangements - either not made or ineffective.either not made or ineffective.

Appointment of Appointment of GuardiansGuardians

All guardians in New Jersey are All guardians in New Jersey are appointed by the Superior Court. The appointed by the Superior Court. The process for appointment of a guardian process for appointment of a guardian begins when a person, usually a family begins when a person, usually a family member, files a petition in Court asking member, files a petition in Court asking that a person be declared that a person be declared incapacitated and a guardian incapacitated and a guardian appointed.appointed.

Superior Court Superior Court Guardianship PetitionGuardianship Petition

1. Order to Show Cause.1. Order to Show Cause.

2. Verified Complaint.2. Verified Complaint.

3. Medical Evidence - written statements 3. Medical Evidence - written statements from two (2) doctors (or one doctor and from two (2) doctors (or one doctor and one psychologist) required.one psychologist) required.

4. Financial Statement - nature and 4. Financial Statement - nature and extent of incapacitated person’s estate.extent of incapacitated person’s estate.

Hearing in Superior Hearing in Superior CourtCourt

1. Notice of Hearing - to incapacitated 1. Notice of Hearing - to incapacitated person, next-of-kin and other interested person, next-of-kin and other interested persons.persons.

2. Incapacitated person’s Legal Counsel - 2. Incapacitated person’s Legal Counsel - appointed by the Court.appointed by the Court.

3. Report by the incapacitated person’s 3. Report by the incapacitated person’s counsel - submitted to the Court.counsel - submitted to the Court.

4. Hearing Date - Contested or Uncontested.4. Hearing Date - Contested or Uncontested.

5. Letters of Guardianship Issued.5. Letters of Guardianship Issued.

Types of Types of GuardianshipsGuardianships

1. Guardianship of the Person.1. Guardianship of the Person.

2. Guardianship of the Estate.2. Guardianship of the Estate.

3. Combined Guardianship.3. Combined Guardianship.

4. Limited Guardianship.4. Limited Guardianship.

““Limited” Limited” GuardianshipsGuardianships

Guardian has power to act only in areas Guardian has power to act only in areas where the ward lacks decision-making where the ward lacks decision-making capacity.capacity.

A person who is generally incapacitated can A person who is generally incapacitated can still make choices about specific matters still make choices about specific matters (e.g., living arrangements).(e.g., living arrangements).

Practical use is more prevalent with Practical use is more prevalent with develop-mentally disabled, rather than develop-mentally disabled, rather than elders with dementia/Alzheimer’s disease.elders with dementia/Alzheimer’s disease.

Guides to Decision-Guides to Decision-MakingMaking

Standards to assist guardians in Standards to assist guardians in making decisions for wards:making decisions for wards:

1. “Substituted Judgment”.1. “Substituted Judgment”.

2. “Best Interest”.2. “Best Interest”.

Voluntary Substitute Voluntary Substitute Decision-MakingDecision-Making

Representative Payeeships (SSA, SSI)Representative Payeeships (SSA, SSI) Joint Tenancies (e.g., joint bank accts.)Joint Tenancies (e.g., joint bank accts.) Powers of AttorneyPowers of Attorney Advance Medical Directives (Living Wills)Advance Medical Directives (Living Wills)

Voluntary Substitute Voluntary Substitute Decision-MakingDecision-Making

Do Not Resuscitate (DNR) Orders Do Not Resuscitate (DNR) Orders Do Not Hospitalize (DNH) OrdersDo Not Hospitalize (DNH) Orders Revocable and Irrevocable Trusts Revocable and Irrevocable Trusts

((interinter vivosvivos and testamentary) and testamentary) Family Limited Partnerships and Family Limited Partnerships and

Limited Liability CompaniesLimited Liability Companies

Powers of AttorneyPowers of Attorney

The most important, simplest and The most important, simplest and least expensive estate document.least expensive estate document.

A mechanism by which the principal A mechanism by which the principal authorizes an agent to manage the authorizes an agent to manage the principal’s financial affairs if the principal’s financial affairs if the principal becomes incapacitated.principal becomes incapacitated.

Characteristics of Characteristics of Powers of AttorneyPowers of Attorney

Creates Fiduciary RelationshipCreates Fiduciary Relationship General vs. SpecialGeneral vs. Special Durable vs. SpringingDurable vs. Springing Sole Agent vs. Joint AgentsSole Agent vs. Joint Agents Termination: death, revocation or Termination: death, revocation or

expirationexpiration

Specific Powers Conferred Specific Powers Conferred in Powers of Attorneyin Powers of Attorney

Flexibility is the goal:Flexibility is the goal:– conduct banking transactionsconduct banking transactions– make gifts, including gifts to the agentmake gifts, including gifts to the agent– prepare and sign tax returnsprepare and sign tax returns– create, amend and fund trustscreate, amend and fund trusts– change beneficiarieschange beneficiaries– execute contracts, leases and deedsexecute contracts, leases and deeds– loan or borrow moneyloan or borrow money– engage in long-term care planningengage in long-term care planning

Fiduciary: Conservator, Guardian, or Fiduciary: Conservator, Guardian, or Agent Under a Power of Attorney or Agent Under a Power of Attorney or

Advance Medical DirectiveAdvance Medical Directive

A person having a duty to act for someone A person having a duty to act for someone else’s benefit, while subordinating one’s else’s benefit, while subordinating one’s personal interests to that of the other. A personal interests to that of the other. A fiduciary must act in good faith and utmost fiduciary must act in good faith and utmost loyalty, and is under a duty to act only in loyalty, and is under a duty to act only in the best interests of the principal which the best interests of the principal which includes the duty not to engage in self-includes the duty not to engage in self-dealing. It is the highest standard of duty in dealing. It is the highest standard of duty in the law. the law.

AbuseAbuse

Powers of Attorney can easily be Powers of Attorney can easily be abused.abused.

To prevent abuse:To prevent abuse:

• Select a trustworthy agentSelect a trustworthy agent

• Retain the power to revoke the Retain the power to revoke the POAPOA

• Require periodic accountingRequire periodic accounting

• Require oversight by alternate Require oversight by alternate agentagent

Advance Medical Advance Medical Directives (“Living Wills”)Directives (“Living Wills”)

Decisions about health care are a Decisions about health care are a fundamental right protected under the fundamental right protected under the federal and state constitutions.federal and state constitutions.

Federal Patient Self-Determination Act, Federal Patient Self-Determination Act, 42 U.S.C. §1395, 42 U.S.C. §1395, etet seqseq..N.J. Advance Directives for Health Care N.J. Advance Directives for Health Care Act, Act, N.J.S.A.N.J.S.A. 26:2H-53, 26:2H-53, etet seqseq..

Advance Directives In New Advance Directives In New JerseyJersey

N.J. law recognizes 3 planning devices:N.J. law recognizes 3 planning devices:

1.1. Instruction DirectiveInstruction Directive

2.2. Proxy Directive - POA for Health CareProxy Directive - POA for Health Care

3.3. Combined DirectiveCombined Directive

Religious preferences may be presented.Religious preferences may be presented.

When Does Proxy Directive When Does Proxy Directive Take Effect?Take Effect?

An attending physician first determines An attending physician first determines that the patient lacks the capacity to that the patient lacks the capacity to make health care decisions, and notes make health care decisions, and notes the lack of capacity in patient’s chart. the lack of capacity in patient’s chart. The decision must be confirmed by a The decision must be confirmed by a second physician.second physician.

Instruction Conflicts with Instruction Conflicts with Agent’s DirectionsAgent’s Directions

Where Instruction Directive Where Instruction Directive conflicts with agent’s directions, conflicts with agent’s directions, law demands that agent give law demands that agent give priority to Instruction Directive, and priority to Instruction Directive, and must then consider other evidence must then consider other evidence of patient’s wishes. Agent must of patient’s wishes. Agent must always act in patient’s best always act in patient’s best interests.interests.

When to WithholdWhen to Withhold Medical Treatment Medical Treatment

N.J. law allows treatment to be withheld:N.J. law allows treatment to be withheld:

1. When the treatment will merely 1. When the treatment will merely prolong the dying process;prolong the dying process;

2. When the patient is permanently 2. When the patient is permanently unconscious;unconscious;

When to WithholdWhen to WithholdMedical TreatmentMedical Treatment

3. When the patient is in a terminal 3. When the patient is in a terminal condition, or;condition, or;

4. When the burden associated with the 4. When the burden associated with the treatment outweighs the benefits.treatment outweighs the benefits.

Ways to Resolve Family Ways to Resolve Family DisputesDisputes

• Discuss medical situation with patient (if Discuss medical situation with patient (if competent) and family or agent under AMD competent) and family or agent under AMD

• Present facts and prognosis dispassionatelyPresent facts and prognosis dispassionately• Review contents of AMD and discuss with familyReview contents of AMD and discuss with family• If persistent disagreement, consider ethics If persistent disagreement, consider ethics

committee consultationcommittee consultation• If disagreement continues OR it appears that If disagreement continues OR it appears that

the proxy decision-makers are not acting in the the proxy decision-makers are not acting in the patient’s best interest, seek appointment of a patient’s best interest, seek appointment of a guardian guardian ad litemad litem

Steps for Successful Planning Steps for Successful Planning for Advance Medical Directivesfor Advance Medical Directives

1.1. Elicit patient values and goalsElicit patient values and goals

2.2. Document patient preferencesDocument patient preferences

3.3. Review and update AMD when Review and update AMD when clinical course changesclinical course changes

4.4. Apply AMD when need arisesApply AMD when need arises

Elicit Patient Values and GoalsElicit Patient Values and Goals

Use “values” questions:Use “values” questions:

-”What makes your life worth living?” -”What makes your life worth living?”

-”How would you like to spend your -”How would you like to spend your last days?”last days?”

-”What are your spiritual beliefs that -”What are your spiritual beliefs that might affect treatment choices?”might affect treatment choices?”

Elicit Patient Values and GoalsElicit Patient Values and Goals

Describe potential patient situations:Describe potential patient situations:

-”Suppose you were very sick in the -”Suppose you were very sick in the hospital. Would you want our focus to be hospital. Would you want our focus to be more on your comfort or on your living more on your comfort or on your living longer?” longer?”

-”Suppose your liver failure progressed. -”Suppose your liver failure progressed. Would you want to go to the intensive care Would you want to go to the intensive care unit, or would you prefer to receive care at unit, or would you prefer to receive care at home but risk living a shorter time?”home but risk living a shorter time?”

Enforcement of Living Enforcement of Living WillsWills

Less than half are enforced. To Less than half are enforced. To increase the probability that your Living increase the probability that your Living Will is enforced:Will is enforced:

(1) Clearly define the types of (1) Clearly define the types of treatment you do not want.treatment you do not want.

(2) Give copies to your agent and (2) Give copies to your agent and treating doctor.treating doctor.

(3) Carry a wallet card.(3) Carry a wallet card.

Enforcement of Living Enforcement of Living WillsWills

(4) Discuss your intentions with family (4) Discuss your intentions with family and medical providers.and medical providers.

(5) Carefully select your health care (5) Carefully select your health care agent. agent.

(6) Identify those persons whose (6) Identify those persons whose opinions you want disregarded.opinions you want disregarded.

Do Not Resuscitate (DNR) Do Not Resuscitate (DNR) OrdersOrders

Guidelines suggest – Guidelines suggest –

1. Patient, family member or surrogate 1. Patient, family member or surrogate decision-maker can request that a DNR be decision-maker can request that a DNR be placed on chart.placed on chart.

2. Attending doctor must discuss 2. Attending doctor must discuss consequences.consequences.

3. To be valid, DNR in AMD must be 3. To be valid, DNR in AMD must be supported by written order by attending doctor.supported by written order by attending doctor.

AMD is NOT the Same as DNRAMD is NOT the Same as DNR

Advance Directive reflects the patient’s Advance Directive reflects the patient’s goals, values and preferences.goals, values and preferences.

Do Not Resuscitate (DNR) is an order Do Not Resuscitate (DNR) is an order specifying no CPR or intubation.specifying no CPR or intubation.

Do Not Hospitalize (DNH) Do Not Hospitalize (DNH) OrdersOrders

Guidelines suggest – Guidelines suggest –

1. Patient, family member or surrogate 1. Patient, family member or surrogate decision-maker can request that a DNH be decision-maker can request that a DNH be placed in chart, and should sign order.placed in chart, and should sign order.

2. Attending doctor must discuss 2. Attending doctor must discuss consequences.consequences.

Do Not Hospitalize (DNH) Do Not Hospitalize (DNH) OrdersOrders

3. To be valid, DNR in AMD must be 3. To be valid, DNR in AMD must be supported by written order by attending doctor.supported by written order by attending doctor.

4. The appropriateness of sending a 4. The appropriateness of sending a patient with a DNH order to the hospital must patient with a DNH order to the hospital must be evaluated again when the need for be evaluated again when the need for hospitalization arises.hospitalization arises.

Curative vs. Palliative CareCurative vs. Palliative Care

Curative CareCurative Care: treatment focuses on : treatment focuses on curing disease and prolonging life.curing disease and prolonging life.

Palliative CarePalliative Care: treatment focuses : treatment focuses on pain management, comfort care on pain management, comfort care and enhancing the quality of life and enhancing the quality of life during the last phase of life.during the last phase of life.

SummarySummary• Advance care planning is a Advance care planning is a

fundamental palliative care skill.fundamental palliative care skill.• Advance care planning reduces family Advance care planning reduces family

burden at end-of-life.burden at end-of-life.• The identification of the proxy is an The identification of the proxy is an

important goal.important goal.• The discussion with the family is often The discussion with the family is often

more important than the documents. more important than the documents. (But it is also vitally important to (But it is also vitally important to document patient wishes.)document patient wishes.)

THANK YOU FOR ATTENDING.THANK YOU FOR ATTENDING.

QUESTIONS?QUESTIONS?