Substitute Decision-Making in New Jersey

1. Substitute Decision-Making in New Jersey Presented by Donald D. Vanarelli, Esq. Certified Elder Law Attorney Accredited Professional Mediator Registered Guardian

2. Capacity The degree to which a person is able to understand information relevant to a specific decision and to appreciate the reasonably foreseeable consequences of the decision (or of the failure to make the decision). Capacity is really a definition of adequate comprehension for decision-making

3. Standards of Capacity • Testamentary Capacity - testator must recognize the natural objects of his/her bounty and the nature and extent of his/her estate on the date of will execution. • Contractual Capacity - contractor must understand the nature of the transaction and consequences of his/her acts.

4. Standards of Capacity • Donative Capacity - donor must understand the nature and effect of the transaction. • Trust Capacity - grantor must have the capacity to contract and to donate property. • Power of Attorney/Living Will Capacity - requires the capacity to contract.

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

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

7. Capacity vs. Competency The law recognizes both standards of competency and degrees of capacity to make decisions in various areas. A person may be unable to govern him/herself and manage his/her personal and financial affairs (i.e., legally incompetent), yet retain capacity to make decisions in limited situations.

8. Court-Imposed Substitute Decision-Making • Conservatorships • Guardianships

9. Conservatorship • The person in need is not incapacitated. • Because of advanced age, illness or physical infirmity, the individual cannot provide for him/herself. • Must be initiated by the person needing assistance. • Cannot be established if the person in need objects.

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

11. Characteristics of Guardianships • Involuntary. • Imposed by Court. • Only for persons who are legally incompetent - medical evidence needed. • Alternate voluntary arrangements - either not made or ineffective.

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

13. Superior Court Guardianship Petition 1. Order to Show Cause. 2. Verified Complaint. 3. Medical Evidence - written statements from two (2) doctors (or one doctor and one psychologist) required. 4. Financial Statement - nature and extent of incapacitated person’s estate.

14. Hearing in Superior Court 1. Notice of Hearing - to incapacitated person, next-of-kin and other interested persons. 2. Incapacitated person’s Legal Counsel - appointed by the Court. 3. Report by the incapacitated person’s counsel - submitted to the Court. 4. Hearing Date - Contested or Uncontested. 5. Letters of Guardianship Issued.

15. Types of Guardianships 1. Guardianship of the Person. 2. Guardianship of the Estate. 3. Combined Guardianship. 4. Limited Guardianship.

16. “Limited” Guardianships • Guardian has power to act only in areas where the ward lacks decision-making capacity. • A person who is generally incapacitated can still make choices about specific matters (e.g., living arrangements). • Practical use is more prevalent with develop-mentally disabled, rather than elders with dementia/Alzheimer’s disease.

17. Guides to Decision-Making Standards to assist guardians in making decisions for wards: 1. “Substituted Judgment”. 2. “Best Interest”.

18. Voluntary Substitute Decision-Making • Representative Payeeships (SSA, SSI) • Joint Tenancies (e.g., joint bank accts.) • Powers of Attorney • Advance Medical Directives (Living Wills)

19. Voluntary Substitute Decision-Making • Do Not Resuscitate (DNR) Orders • Do Not Hospitalize (DNH) Orders • Revocable and Irrevocable Trusts (intervivos and testamentary) • Family Limited Partnerships and Limited Liability Companies

20. Powers of Attorney • The most important, simplest and least expensive estate document. • A mechanism by which the principal authorizes an agent to manage the principal’s financial affairs if the principal becomes incapacitated.

21. Characteristics of Powers of Attorney • Creates Fiduciary Relationship • General vs. Special • Durable vs. Springing • Sole Agent vs. Joint Agents • Termination: death, revocation or expiration

22. Specific Powers Conferred in Powers of Attorney Flexibility is the goal: • conduct banking transactions • make gifts, including gifts to the agent • prepare and sign tax returns • create, amend and fund trusts • change beneficiaries • execute contracts, leases and deeds • loan or borrow money • engage in long-term care planning

23. Fiduciary: Conservator, Guardian, or Agent Under a Power of Attorney or Advance Medical Directive A person having a duty to act for someone else’s benefit, while subordinating one’s personal interests to that of the other. A fiduciary must act in good faith and utmost loyalty, and is under a duty to act only in the best interests of the principal which includes the duty not to engage in self-dealing. It is the highest standard of duty in the law.

24. Abuse • Powers of Attorney can easily be abused. • To prevent abuse: • Select a trustworthy agent • Retain the power to revoke the POA • Require periodic accounting • Require oversight by alternate agent

25. Advance Medical Directives (“Living Wills”) Decisions about health care are a fundamental right protected under the federal and state constitutions. • Federal Patient Self-Determination Act, 42 U.S.C. §1395, etseq. • N.J. Advance Directives for Health Care Act, N.J.S.A. 26:2H-53, etseq.

26. Advance Directives In New Jersey N.J. law recognizes 3 planning devices: 1. Instruction Directive 2. Proxy Directive - POA for Health Care 3. Combined Directive Religious preferences may be presented.

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

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

29. When to Withhold Medical Treatment N.J. law allows treatment to be withheld: 1. When the treatment will merely prolong the dying process; 2. When the patient is permanently unconscious;

30. When to WithholdMedical Treatment 3. When the patient is in a terminal condition, or; 4. When the burden associated with the treatment outweighs the benefits.

31. Ways to Resolve Family Disputes • Discuss medical situation with patient (if competent) and family or agent under AMD • Present facts and prognosis dispassionately • Review contents of AMD and discuss with family • If persistent disagreement, consider ethics committee consultation • If disagreement continues OR it appears that the proxy decision-makers are not acting in the patient’s best interest, seek appointment of a guardian ad litem

32. Steps for Successful Planning for Advance Medical Directives • Elicit patient values and goals • Document patient preferences • Review and update AMD when clinical course changes • Apply AMD when need arises

33. Elicit Patient Values and Goals Use “values” questions: -”What makes your life worth living?” -”How would you like to spend your last days?” -”What are your spiritual beliefs that might affect treatment choices?”

34. Elicit Patient Values and Goals Describe potential patient situations: -”Suppose you were very sick in the hospital. Would you want our focus to be more on your comfort or on your living longer?” -”Suppose your liver failure progressed. Would you want to go to the intensive care unit, or would you prefer to receive care at home but risk living a shorter time?”

35. Enforcement of Living Wills Less than half are enforced. To increase the probability that your Living Will is enforced: (1) Clearly define the types of treatment you do not want. (2) Give copies to your agent and treating doctor. (3) Carry a wallet card.

36. Enforcement of Living Wills (4) Discuss your intentions with family and medical providers. (5) Carefully select your health care agent. (6) Identify those persons whose opinions you want disregarded.

37. Do Not Resuscitate (DNR) Orders Guidelines suggest – 1. Patient, family member or surrogate decision-maker can request that a DNR be placed on chart. 2. Attending doctor must discuss consequences. 3. To be valid, DNR in AMD must be supported by written order by attending doctor.

38. AMD is NOT the Same as DNR Advance Directive reflects the patient’s goals, values and preferences. Do Not Resuscitate (DNR) is an order specifying no CPR or intubation.

39. Do Not Hospitalize (DNH) Orders Guidelines suggest – 1. Patient, family member or surrogate decision-maker can request that a DNH be placed in chart, and should sign order. 2. Attending doctor must discuss consequences.

40. Do Not Hospitalize (DNH) Orders 3. To be valid, DNR in AMD must be supported by written order by attending doctor. 4. The appropriateness of sending a patient with a DNH order to the hospital must be evaluated again when the need for hospitalization arises.

41. Curative vs. Palliative Care Curative Care: treatment focuses on curing disease and prolonging life. Palliative Care: treatment focuses on pain management, comfort care and enhancing the quality of life during the last phase of life.

42. Summary • Advance care planning is a fundamental palliative care skill. • Advance care planning reduces family burden at end-of-life. • The identification of the proxy is an important goal. • The discussion with the family is often more important than the documents. (But it is also vitally important to document patient wishes.)

43. THANK YOU FOR ATTENDING. QUESTIONS?