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Hey, everybody. Welcome back.

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States are often dealing with
the terribly complex issues

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of substituted decision-making,
advance decision-making,

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or the absent decision-maker.

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If you look at various state
legislatures right now,

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I have no doubt you'll see a
couple of bills being discussed

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that impact these issues
in one way or another.

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The reason that these are
often state-based issues

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is because this usually falls

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onto the police power of a state

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to deal with the health
and safety of residents.

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In week 11, in Module 11,
we saw some examples of

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how these issues arise and
how they're dealt with.

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This week, I want to think
more in depth about this

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and get you more comfortable
with the technical differences

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as well as the processes involved

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in creating these
documents, how they're used,

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what can go wrong.

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More importantly, I wanna
spend a little time and energy

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looking at the resulting
problems that arise

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because of these documents.

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So first, let's talk about the broad idea

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of substituted decision-making.

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This is generally a legal concept

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that refers to the process
in which one person,

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referred to as the substitute
decision-maker or surrogate,

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makes decisions on
behalf of another person

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who's unable to make
decisions for themselves

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due to an incapacity or a disability.

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We talked about a little of this before.

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The concept is often applied
in the context of healthcare,

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finances, and sometimes personal matters.

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The substitute decision-maker
is appointed by a court

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or authorized through a legal process,

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a process that is recognized to be legal,

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to make decisions in the best interest

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of the person who lacks capacity.

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The role of this substitute
decision-maker can vary.

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It depends on the jurisdiction

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and the specific circumstances

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and the specific instrument being used,

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but it generally involves decisions about

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the person's medical treatment,
their living arrangements,

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their finances and other
important aspects of their life.

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The substitute decision-maker is expected

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to act in best interest of
the person they represent,

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taking into consideration
the person's known wishes,

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their values, their beliefs,

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and make decisions that promote
their wellbeing and welfare.

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One type of substitute decision-making

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is called the guardianship,

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and so this is a legal
arrangement in which a person,

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often called the guardian,
is appointed by a court.

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They make decisions on
behalf of another person

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who is unable to make
decisions for themselves

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due to their incapacity or disability.

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The person for whom the
guardian is appointed

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is usually called the ward

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or incapacitated person.

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Guardianship is often used when
an individual lacks capacity

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to make decisions about their,
you know, medical affairs,

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their finances or their personal life.

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The guardian is granted
legal authority by a court,

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sometimes a probate court,
sometimes a district court,

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to act in the best interest of the ward.

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They may have the power to make decisions

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about the ward's healthcare,
living arrangements,

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finances, other important
aspects of their life.

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Because it's a court order,

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it is often done per
that individual's needs.

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So just because you've seen one of these

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does not mean it'll be
the same as the next one.

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Another way to be a
substitute decision-maker

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is through a power of attorney.

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Power of attorney is a legal document

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that grants authority from
one person to another,

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and that person is often
called the principal

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and then the agent to act
on the principal's behalf

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in those legal, financial
or other matters.

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This is not a court process.

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This is a recognized legal process

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that parties can engage in.

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Principal may give the agent
broad or limited powers,

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depending on the scope of
the authority specified

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in that power of attorney document.

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A power of attorney can be
used in various situations,

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managing affairs, making
healthcare decisions,

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real estate transactions,

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or just managing business interests.

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It's a fairly flexible legal
tool that allows the principal

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to delegate their decision-making
authority to their agent,

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and the agent is obligated
to act in a manner, again,

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in the best interest of the principal

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within the authority granted.

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Power of attorneys are often
in statute state by state.

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So just because you have a
power of attorney document

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that's valid in one state
does not mean it's valid

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in another state.

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It can get very complicated
going across state lines

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with a power of attorney.

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A healthcare power of attorney

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is a specific type of power of attorney

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that allows the principal to
designate someone they trust

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to make those healthcare
decisions for them

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when they're unable to do so.

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This document is used to
ensure the healthcare wishes

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of the principal are respected

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and that they receive the
appropriate medical care,

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even if they can no longer communicate

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or make decisions for themselves.

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The authority of a healthcare
agent may encompass

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a whole range of healthcare decisions,

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like treatments, surgeries,
medications, end-of-life care,

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or other medical interventions
that might be necessary.

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So it is more limited than
a general power of attorney

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and more specific in that
it is about healthcare.

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So the scope of authority granted

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can be pretty specifically defined

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in the healthcare power
of attorney document,

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and again, the agent is
obligated to make decisions

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with the known wishes and
values in mind of the principal.

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They have to act in their best interest.

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Not all advance planning documents

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involve substituted decisions.

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Sometimes one can make
an advance decision,

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and this is where sometimes
folks get confused.

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It's important to consider
the advanced directive,

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also known as the advance
healthcare directive.

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This is a legal document
that varies, again,

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by state or region that
allows an individual

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to express their preferences
and specify the type of care

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they wish to receive or not receive

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in the event they're unable
to make their own decisions

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due to incapacity or disability.

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An advance directive is
used to provide guidance

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to the healthcare providers
and family members

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about the medical care and
treatment they want to receive

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in specific situations.

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This is not a substitute
decision-making document

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because the decision-maker
does not change.

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They are just saying, "This
is what I want to happen

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if in this situation."

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Another example of this
is the POLST, which stands

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for Physician Orders for
Life-Sustaining Treatment.

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That is a medical order that communicates

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the individual's preferences
for medical treatments,

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particularly emergency
situations, end-of-life care.

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The POLST, or you might see MOLST,

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is a document that is
designed to be completed

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and signed by the healthcare professional,

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usually by a doctor or
a nurse practitioner,

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who knows you well.

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You've consulted with them,

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and they're writing down medical orders

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based on your decision-making.

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The POLST form is typically used

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for individuals with serious
illness, maybe frailty,

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who have specific medical
treatment preferences

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they want to be honored
in emergency situations.

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POLST form provides medical orders

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that guide healthcare providers

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on what treatments to
provide or maybe withhold

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based on the individual's preferences.

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It's intended to be
recognized and followed

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across the different healthcare settings,

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so whether you go to the
hospital, the nursing home,

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or even if emergency medical services

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are providing services.

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So these are few examples
of the legal documents

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that impact healthcare decision-making.

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Sometimes these overlap

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and can even contradict one another,

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which makes for very difficult situations.

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This week, I wanna dive
a little bit deeper

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into the complex world of
healthcare decision-making,

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and I just want to give you the caveat

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that all these situations are different,

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and in different states
and in different places,

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you have different rules that oversee

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what's valid and what's not.

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So make sure not to lose
the forest for the trees.

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These are just kind of general principles

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about how these things might work.