Spotting the Legal Spotting the Legal Issues when Dealing Issues when Dealing

with Family with Family CaregiversCaregivers

Presented by :Presented by :

Debra A. Verni, EsqDebra A. Verni, Esq

Kimberly Strauchon Verner, EsqKimberly Strauchon Verner, EsqFromFrom

Herzog Law FirmHerzog Law Firm

Health Care ProxyHealth Care Proxy

• A Health Care Proxy is a legal document A Health Care Proxy is a legal document which allows you to designate an Agent which allows you to designate an Agent to make health care decisions for you in to make health care decisions for you in the event you are unable to make those the event you are unable to make those decisions for yourself.decisions for yourself.

• The Health Care Proxy can be general The Health Care Proxy can be general and apply to all medical decisions, or it and apply to all medical decisions, or it can impose limitations and spell out can impose limitations and spell out specific instructions for your designated specific instructions for your designated agent.agent.

Living WillLiving Will• The Living Will can be combined with The Living Will can be combined with

your health Care Proxy.your health Care Proxy.• A Living Will is used to state your wishes A Living Will is used to state your wishes

regarding your future health care. More regarding your future health care. More specifically and most frequently , your specifically and most frequently , your Living Will is used to express your Living Will is used to express your feelings about the withholding or the feelings about the withholding or the withdrawal of life sustaining treatment.withdrawal of life sustaining treatment.

• Regardless of whether your Living Will is Regardless of whether your Living Will is combined with your Health Care Proxy, it combined with your Health Care Proxy, it can and should be customized to reflect can and should be customized to reflect your personal wishes.your personal wishes.

Organ DonationOrgan Donation• Make sure that your Organ donation form works Make sure that your Organ donation form works

with the wishes you have expressed in your Health with the wishes you have expressed in your Health Care Proxy, Living Will and DNR.Care Proxy, Living Will and DNR.

• In New York. there are over 10,000 people waiting In New York. there are over 10,000 people waiting for an organ transplant. for an organ transplant.

For Donors and Their FamiliesFor Donors and Their Families• It is always difficult to lose a loved one. Many It is always difficult to lose a loved one. Many

grieving families of organ donors can take comfort grieving families of organ donors can take comfort in the fact that their loss may help to save or in the fact that their loss may help to save or improve the lives of others.improve the lives of others.

• Registering to be an organ donor is a charitable Registering to be an organ donor is a charitable act that costs nothing. It allows a donor to save up act that costs nothing. It allows a donor to save up to eight lives through organ donation, and to save to eight lives through organ donation, and to save or improve the lives of up to 50 recipients through or improve the lives of up to 50 recipients through tissue and eye donation.tissue and eye donation.

Do Not Resuscitate Do Not Resuscitate (DNR)(DNR)• Where/When is an Out of Hospital DNR Order Where/When is an Out of Hospital DNR Order

Valid?Valid?• For any patient For any patient NOTNOT originating from a hospital or originating from a hospital or

nursing facility including but not limited to:nursing facility including but not limited to:– The patient's homeThe patient's home– A hospiceA hospice– A clinicA clinic

• What determines the validity of the Out of Hospital What determines the validity of the Out of Hospital DNR?DNR?

• Merely the presentation of a signed Out of Merely the presentation of a signed Out of Hospital DNR form (or a copy) or a DNR bracelet Hospital DNR form (or a copy) or a DNR bracelet to the EMT.to the EMT.

• A good faith attempt to identify the patient. A good faith attempt to identify the patient. • Out of hospital DNRs do not expire.Out of hospital DNRs do not expire.• May EMS providers accept living wills or health May EMS providers accept living wills or health

care proxies?care proxies?• A living will or health care proxy is A living will or health care proxy is NOTNOT valid in valid in

the pre-hospital setting.the pre-hospital setting.

Hospital & Nursing Home Hospital & Nursing Home DNR ordersDNR orders

• Facilities are required to issue, review and Facilities are required to issue, review and maintain DNR orders. EMS providers will maintain DNR orders. EMS providers will honor hospital DNR orders for patient honor hospital DNR orders for patient transports originating from the facility. transports originating from the facility.

• The DNR The DNR can notcan not be expired. The facility staff be expired. The facility staff must provide a copy of the order and/or must provide a copy of the order and/or patient's chart with the recorded DNR order to patient's chart with the recorded DNR order to the ambulance crew.the ambulance crew.

• Facilities, other than hospitals or nursing Facilities, other than hospitals or nursing homes, are encouraged to use the NYS-DOH homes, are encouraged to use the NYS-DOH approved non-hospital DNR Form as approved non-hospital DNR Form as supplemental documentation to avoid confusion supplemental documentation to avoid confusion and potentially unwanted resuscitation.and potentially unwanted resuscitation.

Medical orders for Life-Medical orders for Life-Sustaining Treatment Sustaining Treatment

(MOLST)(MOLST)MOLST is intended for patients with MOLST is intended for patients with

serious health conditions who:serious health conditions who:• Want to avoid or receive any or all life-Want to avoid or receive any or all life-

sustaining treatment;sustaining treatment;• Reside in a long-term care facility or Reside in a long-term care facility or

require long-term care services; and/orrequire long-term care services; and/or• Might die within the next year.Might die within the next year.• Completion of the MOLST begins with a Completion of the MOLST begins with a

conversation between the patient and a conversation between the patient and a trained health care professional that trained health care professional that defines the patient's goals for care, defines the patient's goals for care, reviews possible treatment options on the reviews possible treatment options on the entire MOLST form, and ensures shared, entire MOLST form, and ensures shared, informed medical decision-making. informed medical decision-making.

Medical orders for Life-Medical orders for Life-Sustaining Treatment Sustaining Treatment (MOLST) continued (MOLST) continued

• Under State law, the MOLST form is the only Under State law, the MOLST form is the only authorized form in New York State for authorized form in New York State for documenting both nonhospital DNR and DNI documenting both nonhospital DNR and DNI orders. In addition, the form is beneficial to orders. In addition, the form is beneficial to patients and providers as it provides specific patients and providers as it provides specific medical orders and is recognized and used in a medical orders and is recognized and used in a variety of health care settings.variety of health care settings.

• In hospitals and nursing homes, the form may In hospitals and nursing homes, the form may be used to issue any orders concerning life-be used to issue any orders concerning life-sustaining treatment. sustaining treatment.

• In the community, the form may be used to In the community, the form may be used to issue nonhospital Do Not Resuscitate (DNR) and issue nonhospital Do Not Resuscitate (DNR) and Do Not Intubate (DNI) orders, and in certain Do Not Intubate (DNI) orders, and in certain circumstances, orders concerning other life-circumstances, orders concerning other life-sustaining treatment. sustaining treatment.

Power of AttorneyPower of Attorney

• A Power of Attorney is a legal instrument A Power of Attorney is a legal instrument used to delegate authority to another used to delegate authority to another individual.individual.

• You, the Principal, nominate an Agent You, the Principal, nominate an Agent and give them authority to make financial and give them authority to make financial and other decisions for you.and other decisions for you.

• Most Powers of Attorney allow your Most Powers of Attorney allow your Agent to make decisions for you while Agent to make decisions for you while you are competent, your agent is you are competent, your agent is required to act pursuant to your wishes required to act pursuant to your wishes or in your best interest. or in your best interest.

No Power or Attorney No Power or Attorney oror

Capacity to make one? Capacity to make one?

• If individual does NOT have “legal If individual does NOT have “legal capacity” the agent/friend/family capacity” the agent/friend/family member will have to petition the member will have to petition the court for Guardianship of the court for Guardianship of the IndividualIndividual

– Article 17-A – Surrogate’s CourtArticle 17-A – Surrogate’s Court– Article 81 – Supreme CourtArticle 81 – Supreme Court

Article 17-A-Article 17-A-GuardianshipGuardianship

• Article 17A is a broad based guardianship Article 17A is a broad based guardianship that covers most decisions typically made by that covers most decisions typically made by parents. This type of guardianship is granted parents. This type of guardianship is granted by county Surrogate’s Court and can be by county Surrogate’s Court and can be obtained without the help of a lawyer. obtained without the help of a lawyer.

• In New York State, everyone who turns 18 is In New York State, everyone who turns 18 is automatically assumed to be legally automatically assumed to be legally competent to make decisions for themselves. competent to make decisions for themselves. Guardianship is a process by which someone Guardianship is a process by which someone is appointed by a court to make decisions for is appointed by a court to make decisions for a person who is unable to make decisions for a person who is unable to make decisions for themselves. In simpler terms, guardianship themselves. In simpler terms, guardianship allows a parent to continue making decisions allows a parent to continue making decisions that they made prior to their child turning 18.that they made prior to their child turning 18.

Article 81Article 81• Article 81 is individualized and specifies exactly what Article 81 is individualized and specifies exactly what

decisions are made by the person with a disability and decisions are made by the person with a disability and what decisions are made by the guardian. This type of what decisions are made by the guardian. This type of guardianship is granted by the county Supreme Court guardianship is granted by the county Supreme Court and generally requires a lawyer.and generally requires a lawyer.

• The cornerstone of Article 81 is the concept of appointing a guardian whose powers are tailored specifically to the particular needs of a person with respect to personal care, property management, or both. The appointment of a guardian must be found to be necessary because the person is unable to meet their needs for personal care, property management, or both. In deciding whether the appointment of a guardian is necessary, the court must consider all the evidence including the information and independent observations provided by the court evaluator's report as to the person's condition, affairs and situation, and the sufficiency and reliability of available resources.

Article 81Article 81(continued)(continued)

• The court regards guardianship as a last resort and assesses the advantages and disadvantages of alternatives to guardianship, deciding on guardianship only when it clearly benefits the person who is the subject of the proceeding and when the alternatives are not sufficient or reliable to meet the needs of the person.

• The person must either agree to the appointment or be found by the court to be incapacitated. There are two components to a determination of incapacity:– the person cannot adequately understand and appreciate the

nature and consequences of the person's particular inabilities; and

– the person is likely to suffer harm because of these limitations and the inability to appreciate the consequences of the limitations.

• Even if all the elements of incapacity are present, a guardian should be appointed only as a last resort and should not be imposed if available resources or other alternatives will adequately protect the person.

Agent to Control Agent to Control Disposition of RemainsDisposition of Remains

• While this may seem unnecessary to the majority of individuals, While this may seem unnecessary to the majority of individuals, with the increase of multiple marriages, same-sex relationships, with the increase of multiple marriages, same-sex relationships, and individuals who are choosing co-habitation over legal and individuals who are choosing co-habitation over legal marriage, the disposition of a loved one's remains is marriage, the disposition of a loved one's remains is increasingly being litigated. increasingly being litigated.

• The Appointment of Agent to Control Disposition of Remains, The Appointment of Agent to Control Disposition of Remains, similar to a Health Care Proxy or a Living Will, designates the similar to a Health Care Proxy or a Living Will, designates the agent whom the client wishes to carry out these matters. In agent whom the client wishes to carry out these matters. In addition, the statute provides that an individual may give addition, the statute provides that an individual may give special directions such that she/he be cremated, that their body special directions such that she/he be cremated, that their body be buried in a particular grave at a specified cemetery, or that a be buried in a particular grave at a specified cemetery, or that a particular funeral home handle the arrangements.particular funeral home handle the arrangements.

• Significantly, an individual will be able to revoke prior Significantly, an individual will be able to revoke prior appointments and advise the designated agent of his/her appointments and advise the designated agent of his/her appointment. This is particularly beneficial in divorces or appointment. This is particularly beneficial in divorces or second marriages. The designated agent is then required to second marriages. The designated agent is then required to sign a document both accepting and assuming the sign a document both accepting and assuming the responsibilities of agent for this individual. responsibilities of agent for this individual.

• Upon the client's death, the designated agent will be able to Upon the client's death, the designated agent will be able to present this legally-recognized document and ensure that the present this legally-recognized document and ensure that the client's remains are disposed of according to his or her special client's remains are disposed of according to his or her special directions.directions.

My Legal ChecklistMy Legal Checklist

• Important information about meImportant information about me– My spouseMy spouse– My childrenMy children

• Information about my Legal Information about my Legal DocumentsDocuments– Financial assetsFinancial assets– Other assetsOther assets

People to notify in the event of my People to notify in the event of my Death/Poor HealthDeath/Poor Health

Thank you!Thank you!

Questions?Questions?