Hey, everybody. Welcome back.
States are often dealing with the terribly complex issues
of substituted decision-making, advance decision-making,
or the absent decision-maker.
If you look at various state legislatures right now,
I have no doubt you'll see a couple of bills being discussed
that impact these issues in one way or another.
The reason that these are often state-based issues
is because this usually falls
onto the police power of a state
to deal with the health and safety of residents.
In week 11, in Module 11, we saw some examples of
how these issues arise and how they're dealt with.
This week, I want to think more in depth about this
and get you more comfortable with the technical differences
as well as the processes involved
in creating these documents, how they're used,
what can go wrong.
More importantly, I wanna spend a little time and energy
looking at the resulting problems that arise
because of these documents.
So first, let's talk about the broad idea
of substituted decision-making.
This is generally a legal concept
that refers to the process in which one person,
referred to as the substitute decision-maker or surrogate,
makes decisions on behalf of another person
who's unable to make decisions for themselves
due to an incapacity or a disability.
We talked about a little of this before.
The concept is often applied in the context of healthcare,
finances, and sometimes personal matters.
The substitute decision-maker is appointed by a court
or authorized through a legal process,
a process that is recognized to be legal,
to make decisions in the best interest
of the person who lacks capacity.
The role of this substitute decision-maker can vary.
It depends on the jurisdiction
and the specific circumstances
and the specific instrument being used,
but it generally involves decisions about
the person's medical treatment, their living arrangements,
their finances and other important aspects of their life.
The substitute decision-maker is expected
to act in best interest of the person they represent,
taking into consideration the person's known wishes,
their values, their beliefs,
and make decisions that promote their wellbeing and welfare.
One type of substitute decision-making
is called the guardianship,
and so this is a legal arrangement in which a person,
often called the guardian, is appointed by a court.
They make decisions on behalf of another person
who is unable to make decisions for themselves
due to their incapacity or disability.
The person for whom the guardian is appointed
is usually called the ward
or incapacitated person.
Guardianship is often used when an individual lacks capacity
to make decisions about their, you know, medical affairs,
their finances or their personal life.
The guardian is granted legal authority by a court,
sometimes a probate court, sometimes a district court,
to act in the best interest of the ward.
They may have the power to make decisions
about the ward's healthcare, living arrangements,
finances, other important aspects of their life.
Because it's a court order,
it is often done per that individual's needs.
So just because you've seen one of these
does not mean it'll be the same as the next one.
Another way to be a substitute decision-maker
is through a power of attorney.
Power of attorney is a legal document
that grants authority from one person to another,
and that person is often called the principal
and then the agent to act on the principal's behalf
in those legal, financial or other matters.
This is not a court process.
This is a recognized legal process
that parties can engage in.
Principal may give the agent broad or limited powers,
depending on the scope of the authority specified
in that power of attorney document.
A power of attorney can be used in various situations,
managing affairs, making healthcare decisions,
real estate transactions,
or just managing business interests.
It's a fairly flexible legal tool that allows the principal
to delegate their decision-making authority to their agent,
and the agent is obligated to act in a manner, again,
in the best interest of the principal
within the authority granted.
Power of attorneys are often in statute state by state.
So just because you have a power of attorney document
that's valid in one state does not mean it's valid
in another state.
It can get very complicated going across state lines
with a power of attorney.
A healthcare power of attorney
is a specific type of power of attorney
that allows the principal to designate someone they trust
to make those healthcare decisions for them
when they're unable to do so.
This document is used to ensure the healthcare wishes
of the principal are respected
and that they receive the appropriate medical care,
even if they can no longer communicate
or make decisions for themselves.
The authority of a healthcare agent may encompass
a whole range of healthcare decisions,
like treatments, surgeries, medications, end-of-life care,
or other medical interventions that might be necessary.
So it is more limited than a general power of attorney
and more specific in that it is about healthcare.
So the scope of authority granted
can be pretty specifically defined
in the healthcare power of attorney document,
and again, the agent is obligated to make decisions
with the known wishes and values in mind of the principal.
They have to act in their best interest.
Not all advance planning documents
involve substituted decisions.
Sometimes one can make an advance decision,
and this is where sometimes folks get confused.
It's important to consider the advanced directive,
also known as the advance healthcare directive.
This is a legal document that varies, again,
by state or region that allows an individual
to express their preferences and specify the type of care
they wish to receive or not receive
in the event they're unable to make their own decisions
due to incapacity or disability.
An advance directive is used to provide guidance
to the healthcare providers and family members
about the medical care and treatment they want to receive
in specific situations.
This is not a substitute decision-making document
because the decision-maker does not change.
They are just saying, "This is what I want to happen
if in this situation."
Another example of this is the POLST, which stands
for Physician Orders for Life-Sustaining Treatment.
That is a medical order that communicates
the individual's preferences for medical treatments,
particularly emergency situations, end-of-life care.
The POLST, or you might see MOLST,
is a document that is designed to be completed
and signed by the healthcare professional,
usually by a doctor or a nurse practitioner,
who knows you well.
You've consulted with them,
and they're writing down medical orders
based on your decision-making.
The POLST form is typically used
for individuals with serious illness, maybe frailty,
who have specific medical treatment preferences
they want to be honored in emergency situations.
POLST form provides medical orders
that guide healthcare providers
on what treatments to provide or maybe withhold
based on the individual's preferences.
It's intended to be recognized and followed
across the different healthcare settings,
so whether you go to the hospital, the nursing home,
or even if emergency medical services
are providing services.
So these are few examples of the legal documents
that impact healthcare decision-making.
Sometimes these overlap
and can even contradict one another,
which makes for very difficult situations.
This week, I wanna dive a little bit deeper
into the complex world of healthcare decision-making,
and I just want to give you the caveat
that all these situations are different,
and in different states and in different places,
you have different rules that oversee
what's valid and what's not.
So make sure not to lose the forest for the trees.
These are just kind of general principles
about how these things might work.