This month, my husband, Rudy, and I officially enter the world of teenagers. Our eldest daughter, Sofia, is turning thirteen. With that, the three of us seem to be discussing the dynamics of parent vs. child decision–making quite often.
We regularly “discuss” educational choices, curfews, friendships, medical treatments, and increased, then decreased, freedoms. I regularly tell Sofia that her father and I, as her Legal Guardians, will continue to make many decisions in her life, as is our legal right, until she turns eighteen. I have explained to her that in this country, because there are laws preventing minors from entering into contracts, we are ultimately responsible for our children, their actions, and most of their decisions.
Once Sofia turns eighteen, however, she will “age out of” this legal status, and be able to make many more of these decisions (providing, of course, that she can assume some financial responsibility!)
It’s important to know that a similar process exists for adults who are NOT able to manage these types of decisions. Adult disabled children, for instance, are not expected to completely manage their own financial matters or make medical choices, and so their parents or other family members will continue to make decisions on their behalf.
Sometimes, though, a legally competent adult becomes either temporarily or permanently unable to take care of him/herself. A serious car accident or stroke can very quickly bring about tremendous changes in an individual’s life. Likewise, dementia that increases slowly in an older person, or the diagnosis of Alzheimer’s can change things dramatically.
When these things happen, families are faced with many unforeseen problems. Medical decisions must be made and bills need to be paid. Ideally, the disabled adult has left instructions about a potential disability, and, while competent, appointed people to handle many of the things that he or she is now unable to take care of.
Usually, this involves one or more Powers of Attorney. Two in particular, the Statutory Durable Power of Attorney and the Medical Power of Attorney, are documents that have been created by the Texas Legislature to address this situation. Each names another person to “step into the shoes” of the now–incompetent patient and take care of the patient’s affairs. The two documents differ, in that the Medical Power of Attorney is not effective UNTIL the patient has been certified in writing (by one or two physicians) as incompetent. The Statutory Durable Power of Attorney, however, can be effective as of the date it is signed (another person is authorized to act on behalf of the person signing the document), and will continue to be effective EVEN IF the patient is later disabled in any manner.
Hopefully, the patient has also signed a HIPAA Release at some point. This release, which deals with the Federal Health Insurance Portability and Accountability Act of 1996, is designed to protect a patient’s medical information. (Appointing a Medical Power of Attorney may be useless if that person cannot access the patient’s medical records.)
Often, though, there are no instructions. No one has been named as a surrogate decision–maker, and multiple problems arise as families attempt to handle the situation. Disagreements about the course of treatment for the patient, and priority of expenses, arise often.
Each state handles this problem slightly differently. In Texas, the solution is to have a Guardian appointed to make decisions for the incompetent individual. The process is that an interested person, generally a family member, files an application to be appointed the Guardian. The court then authorizes an investigation into the matter, and appoints an independent representative for the “proposed ward.” The court investigator and ward’s representative will both meet with the patient and file a recommendation either for or against the guardianship. They will examine whether or not the disabled person is unable to handle matters for him/herself, and if there is an alternative approach to the situation. Finally, if the court determines that the Guardianship is appropriate, and there are no other reasons why the applicant should not be appointed, he or she will become the Guardian.
The Guardianship process is somewhat expensive (the applicant must post a bond and pay an attorney to process the case) and burdensome (there are required financial accountings which must be made to the court, for instance). In a difficult or conflictive situation, however, it may be unavoidable.
Guardianship proceedings are also sometimes against the wishes of the ward, and can be very emotional for all involved. It can be very difficult when there are signed Powers of Attorney, but a different family member or interested party files an application to become the patient’s guardian. (If the Guardianship is granted, the Powers of Attorney will no longer be effective.)
Finally, there is another statutory document in Texas, the Designation of Guardian for Self, which can be extremely helpful in ensuring that the correct surrogate decision–maker is appointed. It simply records the patient’s wishes, while competent, about the management of their person (medical decisions) and their estate (financial matters). Ideally, this document is signed at the same time as the Statutory Durable Power of Attorney and the Medical Power of Attorney, and appoints the same individuals.
For the medical professionals attempting to treat an incompetent patient, making medical decisions during a Guardianship process can be particularly challenging. Often, different family members present conflicting documents, and may all claim to have been appointed the patient’s surrogate decision–maker. It is therefore imperative that all have a basic understanding of the legal documents involved.
Recording one’s wishes in an appropriate format, while competent, is, again, the best way to make the situation easier for all involved.
