Advance Directive for Health Care and POLST

The Georgia Advance Directive for Health Care and the POLST (Physician’s Order for Life Sustaining Treatment) are both health care proxy forms. This blog will describe each document and its uses.

The Georgia Advance Directive for Health Care

The Georgia Advance Directive for Healthcare (viewable here) combines three different healthcare decision making documents that previously existed. The first of these documents is the Healthcare Power of Attorney, which is now embodied in Part One of the Advance Directive. In this Part of the Advance Directive, you (as the “Principal”) delegate health care decision-making authority to your decision-maker of choice (the “Agent”). The power that you delegate is quite broad: you are empowering your Agent to speak for you whenever you are unable to communicate your own healthcare preferences.

Part Two of the Advance Directive for Health Care fulfills the role that a stand-alone Living Will used to play. In Part Two of the Advance Directive, you state your preferences about what types of end-of-life care you would prefer to receive. Significantly, your Agents are not bound to the preferences that you state. Rather, your Agents are guided by your written preferences and by their knowledge of your values.

Part Three of the Advance Directive empowers you to list your preferred order of guardians, if you should ever need one. In order for someone else to become your Guardian, that person must submit a petition to the Probate Court in the county in which you reside that explains why you are incapable of making or communicating significant and responsible decisions about your health and safety.

Part Four of the Advance Directive is where you (as the Principal) sign the document in the presence of two witnesses, who also sign. Be careful not to have your Agents sign as witnesses, as this renders the document invalid. Significantly, a notary public is not required for the Advance Directive.

Here are the most significant points to remember about an Advance Directive:

  • A patient must be a fully competent adult to complete an Advance Directive.
  • You don’t need an attorney (or a physician) to complete an Advance Directive.
  • The Agent only makes decisions if the Patient is not able to communicate about treatment wishes.
  • Advance Directives only cover healthcare decisions and have nothing to do with your financial affairs.
  • You can change your mind at any time, by completing a new form.

The Physician Order for Life Sustaining Treatment (POLST)

To read a current version of the Georgia POLST form, click here.

As noted on the back of the POLST, the POLST form is designed to be completed by individuals who have a serious illness or condition and are in their last year of life (in the judgment of a physician), or by individuals who have been “diagnosed with dementia or another degenerative disease or condition that attacks the brain and results in impaired thinking, memory, and behavior”. If an individual is unable to complete a POLST, then the form lists the order of individuals who are empowered to complete the document on his or her behalf, starting with that person’s Agent under an Advance Directive for Health Care, followed by a spouse, then a Court-appointed guardian, then an adult son or daughter, then a parent, and then an adult sibling. Any individual completing the form must choose treatment options “in good faith based upon what the patient would have wanted if the patient understood his or her current treatment options.”

Because a POLST is a physician’s order, it is enforceable as such. A healthcare provider who has knowledge of a POLST is bound to follow it. In contrast, the Advance Directive only provides a statement of a patient’s wishes and the agent ultimately chooses the treatments.

The POLST form begins with consideration of a patient’s wishes if he or she were to have no pulse and/or could not breathe. Here, a Patient will communicate with the physician completing the form whether the patient would want CPR or not. The patient is then asked to indicate what level of medical intervention the patient would want- i.e., whether the patient would merely want comfort measures, or limited interventions, or full treatment. The POLST also asks about the patient’s wishes regarding the use of antibiotics. Finally, the POLST queries about the patient’s wishes regarding artificially administered nutrition and fluids.

Significantly, if the POLST is completed by the Patient and a Physician, there are no restrictions on how the orders in the POLST may be implemented. In contrast, if the POLST is completed by the patient’s Health Care Agent (Under a Georgia Advance Directive for Health Care), a DNR (Do Not Resuscitate) order can only be implemented when a Patient is a “candidate for non-resuscitation” as defined by OCGA 31-39-2(4).

The POLST form requires the signature of the Patient or Authorized Person, and the physician who complete it. Significantly, if an Authorized Person is signing the form because a patient cannot do so, and if the Authorized Person chooses not to have the patient receive CPR (instead choosing the option “Allow Natural Death to Occur”, the POLST must also be signed by a second (concurring) physician.

Last but not least, the POLST form provides that when a patient is transferred from one care setting to another, released to return home, if there a substantial change in the patient’s status, or if the patient’s treatment preferences change, then a physician should review the form, and sign it while noting the location, date, and time of their review, and to indicate whether their review resulted in the POLST form remaining intact with no changes, whether it was voided and a new form completed, or whether it was voided and no new form was completed.

Conclusion

Every adult in Georgia should have an Advance Directive in place so that their basic wishes about their end-of-life care options are known and so that there is a clearly codified order of people to make these decisions if the adult cannot do so. The POLST is typically limited to patients in their last year of life or those with degenerative diseases that attack the brain.  However, the POLST is such a powerful and specific document that some believe that its use should not necessarily be so limited.  Should a healthy person ask her physician to complete a POLST? Arguably, this is not a bad idea, as the POLST will ask many questions that an Advance Directive does not. However, it may be several years before healthcare providers and their staff are comfortable with all of the nuances of the POLST as compared to the Health Care Directive. In the end, as with so many decisions about your care, you might have to ask your doctor if a POLST is right for you.

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Special Needs Trust Fairness Act

Congress passed the Special Needs Trust Fairness Act as a provision of the 21st Century Cures Act. This new law cured a decades old injustice toward special needs adults. In 1993, Congress enacted laws allowing a parent, grandparent, guardian, or court to establish a Special Needs Trust. These trusts could then be funded with the assets of a special needs adult who is under 65 years of age. The assets in the trust are exempted from consideration in determining Medicaid and SSI eligibility provided that the trust provides only those items to the beneficiary not otherwise available through governmental assistance programs. The trust must provide reimbursement to the state department of medical assistance for the total amount of medical assistance paid on behalf of the beneficiary during her lifetime upon her death. 42 U.S.C. 1396p(d)(4)(A).

However, Congress did not allow anyone to establish his or her own Special Needs Trust. Special needs adults who do not have parents or grandparents to establish the trust for them were forced to petition the local court for permission for another friend or family member to establish the trust on their behalf. This cumbersome court proceeding costs special needs adults money and time which could have been better spent.

In December, the Special Needs Trust Fairness Act fixed this oversight. The Act empowers special needs adults to establish their own Special Needs Trusts. The passage of the Special Needs Trust Fairness Act removes the costly legal barrier for people who do not have parents or grandparents to create their trust. The Social Security Administration issued a new regulation to allow trusts that were establish by special needs adults for their own benefit as of January 1, 2017. The Georgia Department of Community Health is also approving trusts that have been established by the beneficiaries.

We are excited to have had a client sign her own Special Needs Trust last week. She had been waiting for over 2 months for the local superior court to decide upon her petition. Her wait is over as is the wait for thousands of other special needs adults.

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New CMS Rule Bans Pre-Dispute Arbitration Agreements for Nursing Home Residents

In one of the biggest rule changes regarding skilled nursing facilities since 1991, the Center for Medicare and Medicaid Services (CMS) announced in late September that it was banning pre-dispute arbitration agreements in nursing home residency agreements, effective November 28, 2016.  This rule change protects the rights of nursing home residents (and their families) to access the legal system in cases of abuse or neglect of a resident by a facility.  This blog entry seeks to explain the battle behind the rule change, and why that battle may not yet be over.

The initial CMS rule, which was proposed in July 2015, received more than 10,000 comments.  According to CMS Acting Administrator Andy Slavitt, many of these comments concerned pre-dispute arbitration clauses.  Such clauses are contained in a nursing home admissions agreement that is signed by the prospective resident and/or his family member, guardian or conservator, or Agent under a Durable Power of Attorney. These  binding arbitration clauses require that if there is ever a dispute regarding the care the facility provided to the resident, the resident and anyone acting on the resident’s behalf waives the right to a jury trial and limits or eliminates the range of legal remedies available.  Instead, residents and those acting for them are often limited to pursuing binding arbitration, meaning that a single arbitrator or a small panel of arbitrators (often three) will hear from both the facility and from the resident and then issue a decision that is binding.

Many businesses (including nursing home facilities) typically favor arbitration agreements because these agreements provide a predictable process for resolving disputes in which litigation costs and timelines can otherwise spiral out of control.  In contrast, resident’s rights groups, trial attorneys, and others argue that depriving a resident or others acting for a resident from the right to access to trial by jury is unfair, and prevents residents and their families from recovering for wrongs that the residents have suffered at the hands of negligent facilities.

The origin of the new CMS rule can be found in the outcry following a controversial 2012 U.S. Supreme Court decision, Marmet Health Care Center, Inc. v Brown.  Marmet involved three negligence lawsuits that were brought by the family members of deceased former nursing home residents against nursing homes in West Virginia.  In Marmet, all nine justices of the Supreme Court joined together to issue a rare “per curiam” (unanimous) decision that a West Virginia state law which prohibited all binding pre-dispute arbitration clauses in nursing home admission contracts was not enforceable.  Rather, the Court reiterated that state and federal courts must enforce the Federal Arbitration Act (which allows for such arbitration clauses in business contracts) and that the federal Act pre-empted the laws of West Virginia or any other state that wanted to ban such binding arbitration clauses.  Students of the U.S. Constitution will note that Article VI, Clause 2 of the Constitution, the Supremacy Clause, states that:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

While the 2012 Marmet decision was met with praise from skilled nursing facility operators across the country and the long-term care industry in general, nursing home residents’ rights groups, trial attorneys, and others quickly recognized that overturning a Supreme Court decision would require the Court to grant a writ of certiorari and thus agree to hear a case on the same issue and, they should instead focus their collective efforts on the Center for Medicare and Medicaid Services (CMS), and lobby for a new CMS rule that would enshrine and protect the rights of residents to the legal process, and end the use or enforceability of binding arbitration agreements in nursing home admissions contracts.

This lobbying approach raises an important question:  How could CMS issue a rule that directly conflicts with a U.S. Supreme Court decision?  In the case of the new rule, CMS did so by distinguishing the facts of Marmet (which arose from three negligence lawsuits against nursing home facilities), and instead grounding the rule change in authority granted under the Social Security Act to the Secretary of Health and Human Services to issue “such rules as may be necessary to the efficient administration of the functions of the Department,” which includes supervision of all providers, including long-term care providers, who “participate in the Medicare and Medicaid programs.”   CMS further explains (at page 399 of the 700 (!) page commentary to the new rules):

“Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . .

We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA’s saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that pre-dispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.

Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”

     Significantly, just hours before the final long-term care rules were issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).

The long-term care industry did not take kindly to the new CMS rule, as reported by long-term care industry insiders at McKnight’s News on September 29, 2016:

“That provision [of the new CMS rule] clearly exceeds CMS’s statutory authority and is wholly unnecessary to protect residents’ health and safety,” said Mark Parkinson, president and CEO of the American Health Care Association, the industry advocacy group for skilled nursing care facilities.

Similarly, Leading Age, the industry advocacy organization for Continuing Care Retirement Communities (CCRCs)  states that supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS’s outright ban of arbitration agreements is a step too far.   “Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement on the new CMS rule.

It may be many months before the next salvo of this ongoing battle over how long-term care providers can shape or limit the legal processes available to their residents to resolve disputes about care.  We will certainly follow up with updates as they are available.

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Georgia Supreme Court Says Providers Must Read and Heed Advance Directive

Georgia ADHCOn July 5, 2016, in Doctor’s Hospital of Augusta v. Alicea, the Georgia Supreme Court issued an opinion involving the interpretation and application of the Georgia Advance Directive for Health Care. The opinion is interesting in part because we have so little judicial analysis or opinion on the Georgia Advance Directive for Health Care. While the language in the document itself and the concepts involved in its execution and application appear straightforward, end of life decisions are rarely so neat and simple. In this opinion the Court clearly affirmed the patient’s right, even if through a health-care agent, to choose a course of treatment.

For purposes of this blog post we need not delve deeply into the procedural posture or specific legal technicalities of the case. Instead we will discuss the Georgia Advance Directive for Health Care generally, summarize the facts, the judges’ opinion, and what Georgia residents and health-care providers can take away from the case.

Georgia Advance Directive for Health Care

Prior to 2007, the State of Georgia had two separate documents that people used to choose a health care decision-maker and to express their own preferences about how they would be cared for if they were not able to communicate. In 2007, lawmakers combined the “Living Will” and “Health Care Power of Attorney” into one document, the “Advance Directive for Health Care”. The Georgia statutory form can be found at O.C.G.A. § 31-32-4. The purpose of the new document was to reduce confusion by having only one document that incorporated aspects from both of the previous documents. The Advance Directive allows Georgia residents to select the individual they want to make health-care decisions for them and express their personal preferences about specific aspects of their care. Most significantly, the Advance Directive allows patients to specify whether they wish to have their life prolonged by artificial means.

Factual Summary

Ninety-one-year-old Bucilla Stephenson had executed an Advance Directive for Health Care appointing granddaughter, Jacqueline Alicea, as her health-care care agent. Ms. Stephenson indicated in her Advance Directive for Health Care and also expressed to Ms. Alicea and other family members that she did not wish to have her life prolonged by artificial means or treatment. Later, when Ms. Stephenson was admitted to Doctors Hospital, her grandaughter gave the hospital the Advance Directive form and her own contact information. She also expressly instructed the treating physician not to perform CPR or employ any other heroic measure to prolong Ms. Stephenson’s life. She also instructed that she was to be called before Ms. Stephenson’s was intubated or placed on a ventilator.

About a week later, without contacting Ms. Alicea as instructed, the physician intubated Ms. Stephenson and placed her on a ventilator to save her life. A week later, after another procedure to clean out Ms. Stephenson’s lung, Ms. Alicea consented to the doctor’s recommendation to take her grandmother off the ventilator, and Ms. Stephenson died.

Holding

Ms. Alicea later filed a lawsuit against the hospital and the physician alleging that Ms. Stephenson was caused unnecessary pain and suffering, contrary to the wishes she expressed in her Advance Directive for Health Care and the specific directions of Ms. Alicea, her designated health care agent. The defendants filed a motion for summary judgment, alleging they were immune from civil prosecution because they were protected by the immunity provisions in the Advanced Directive Act.

The Court held that the immunity provisions in the Advanced Directive Act are predicated on a health-care provider making a good faith effort to follow the patient’s wishes. If the health-care provider cannot follow the patient’s direction, the provider must inform the patient and cooperate in facilitating a transfer to a different health care provider. In this case, the defendant did not make a good-faith effort to follow the patient’s wishes.

Takeaways

1.     The Court clearly and unequivocally affirmed the patient’s right to choose their own course of treatment, observing that a guiding principle in the creation of the Advance Directive is to ensure that in making health-care decisions, “it is the will of the patient or her designated agent, not the will of the health-care provider, that controls.”

2.     It is the responsibility of the patient or agent to make sure the health-care provider has a copy of the Advance Directive. Once provided a copy of the Advance Directive, the health-care provider must make it a part of the patient’s record or file.

3.     With respect to end of life care or treatment, the health care agent’s directions prevail over the patient’s written instructions in the Advance Directive.

4.     The health-care agent has priority over everyone, including a court-appointed guardian, in making health care decisions covered by the Advance Directive

5.     Health-care providers must now follow the patient’s or agent’s wishes or risk liability. However, if the care providers do follow the patient’s or agent’s wishes, they will enjoy express statutory protection from liability.

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Estate Planning for Parents with Minor Children

As elder law attorneys, much of our time and energy is devoted towards older clients and their families as someone is transitioning into long-term care in an assisted living facility or skilled nursing facility.  We also frequently perform estate planning for younger clients, including the parents of minor children.  In this blog post we explain some of the key features of estate planning for parents of minor children including naming both a testamentary and a standby guardian, choosing the right Trustees, and ensuring that life insurance policy beneficiary designations dovetail with your estate planning.  We also address special considerations for divorced parents and parents of children with special needs.

One of the primary reasons why clients with young children pursue estate planning is to name a testamentary guardian for their minor children.  “Testamentary” simply means that something is part of a Will.    If both parents of a minor child are deceased, the testamentary guardian named in a Will is first in line to petition the local probate court to serve as guardian of the minor child or children.

Because a Will does not speak until after the person who made the Will is deceased, many states (including Georgia) allow a parent to name a Standby Guardian.   Under Georgia law, when custodial parents have completed a Designation of Standby Guardian form, the Standby Guardian is empowered to have custody and control of minor children for up to four months.  At the four month mark, a Standby Guardian is first in line to petition for guardianship of the minor children until the child is 18 years old.

Many of our younger clients with minor children don’t have large piles of cash to ensure that all of their spouse or partner’s needs and their minor children’s needs are met if the client dies prematurely.  As anyone who sells life insurance will gladly tell you, this is one common situation in which having life insurance is so important.   Most young parents who come to us have life insurance.  Many, however, have not done the math about how much money it might take to pay off a mortgage, help raise one or more children, and (perhaps most expensively) help to put one or more children through college in the event that one parent dies.   Having a sufficient amount of life insurance is especially important for single parents or couples where one spouse or partner is the chief breadwinner, such that if he or she were to die prematurely there would be tremendous financial pressure on the surviving parent, who might not otherwise be able to meet these large financial responsibilities.  (Here, we should point out that for $40-$60 each month, most parents in their 20s to 40s can purchase at least $250,000 or more in term life insurance.)  There are many formulas that can be used to determine how much life insurance you should have, but rather than rely upon any formulaic approach (such as 8 to 10 times your annual salary), we counsel clients that it needs to be enough money to meet these needs: paying off any remaining mortgage, and leaving enough to help with a child’s expenses from where they are now all the way through their potential college tuition.

We routinely counsel our clients to name their spouse or partner as the primary beneficiary of their life insurance policy, and this is exactly what most clients have already done.  However, many clients are surprised to learn that we often recommend that clients name their estate as the secondary beneficiary of their estate.  Doing so ensures that if a client’s spouse or partner is not alive to receive the life insurance policy proceeds, there will be money to fund the bequests (gifts) in their Will for their children and other beneficiaries.

We won’t go into all of the details of disability insurance, but we will note that most of us are far more likely to have a disabling event during our work life than we are to die prematurely.  If you can afford to purchase a quality disability insurance policy, either on your own or through your employer, you will be able to replace lost income (usually 60% of your income) in the event of disability.  Good disability insurance is typically not cheap, but if and when you need it, you will be glad you have it!

We sometimes hear from younger clients with minor children that they know that one particular friend or family member would be a great choice as a standby or testamentary guardian, but that the parents think that someone else is a better choice to manage the money left for their children.   In this situation, we counsel parents of minor children that they can absolutely name different individuals to serve as guardians and as trustees.  Guardians are responsible for the health and safety of minor children.  In contrast,Trustees have “power of the purse” in that they are responsible for administering the terms of a trust (here, testamentary trusts in the parents’ Wills that leave money for their children and for others.)  If you are the parent of a minor child, you will generally know if you want the same person to have both physical care and custody of any children and make financial decisions, or whether you prefer a “checks and balances” approach in which you name different individuals for these roles.

Parents of young children have a wide array of opinions about when their children should receive any money from their estate- and whether that distribution should be based upon age, educational achievement (such as graduating from a four year college), Trustee discretion, or all of the above.  Here, there is no “one size fits all” solution for each family, so we discuss the options and help our clients decide the best fit for them.

Last but not least, we must highlight two groups of parents whose planning needs require even more attention to detail.  The first group consists of parents who are divorced from the other parent of their minor children.  In planning for this group, we must sometimes explain that if anything happens to them, the terms of the divorce decree will largely dictate the rights of the other parent to raise their child.  If a parent has custodial or visitation rights, those rights do not suddenly disappear when the ex-spouse dies or becomes disabled.  On the contrary, it is in such a situation that (as our clients often do not want to hear), their ex-spouse is almost always first in line to care for their child.  Likewise, if a divorce decree requires that a client maintain a life insurance policy payable to their ex-spouse in the event of their death, we are going to check with our client to ensure that such a policy is being maintained, and that any decree requirements about the beneficiary are being met.

The second group of parents whose planning needs require more attention to detail are parents of children with special needs.  Here, we reassure all of our clients that precisely because none of us can predict what the future will hold, we now include a contingent testamentary Special Needs Trust in every Will that we draft.  In plain English, this means that any beneficiary of any Will with such a contingent Special Needs Trust who is receiving Supplemental Security Income (SSI), Medicaid, food stamps, subsidized housing, or other means-tested government benefits will not be disqualified from their benefits because they receive an inheritance.  Rather, their inheritance will be placed in a Special Needs Trust that allows their inheritance to be used for their benefit.  Significantly, Special Needs Trusts are subject to annual scrutiny by the State of Georgia’s Department of Community Health, and must abide by strict standards about how the money is spent for the sole benefit of the beneficiary on allowed expenses.

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