THE HEALTH CARE PROXY: DOES THE PATIENT HAVE CAPACITY TO SIGN IT? As appeared in the Alzheimer's Association, Summer 2006 Newsletter

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1 Legal Guidance THE HEALTH CARE PROXY: DOES THE PATIENT HAVE CAPACITY TO SIGN IT? As appeared in the Alzheimer's Association, Summer 2006 Newsletter Unfortunately most Americans fail to consider the possibility that they may become incapacitated as a result of accident or illness and do not sign powers of attorney or advance directives for health care decision making. Without a power of attorney, health care proxy and a living will it may be necessary to seek the appointment of a court appointed guardian to make decisions for a person who can no longer decide for himself or herself. In many cases this is not necessary but occurs because of a belief that it is too late for the patient to execute legal documents. This results from the failure of law and medicine to have adequately analyzed and defined what level of capacity is required for a specific task. Too often a physician or lawyer will conclude that the patient who has been diagnosed with dementia lacks capacity to make a decision when better understanding about the quantum of judgmental ability needed for a particular decision might lead to a different conclusion. This is an issue that has received little attention by the courts. Many caregivers face the question of whether a family member with dementia can execute a health care proxy ( HCP )? What standards should apply? New York s Health Care Proxy law gives us some guidance. 1 The law provides clear and workable guidelines as to when a patient s proxy becomes effective. The legislature adopted the springing power approach and chose loss of capacity rather than lack of competency as the standard. Public Health Law section 2983 provides that the health care agent can speak for the patient when there is a determination by the attending physician that (the patient) lacks capacity to make health care decisions.... made by the attending physician to a reasonable degree of medical certainty. The determination shall be made in writing and shall contain such attending physician s opinion regarding the cause and nature of the principal s incapacity as well as its extent and probable duration. 1 Article 29-C of the Public Health Law authorizing the health care proxy became effective on January 19, The HCP law was the product of the New York State Task Force on Life and the Law, first convened by Governor Mario Cuomo in March, The Task Force recommended the enactment of Article 29-C in its report issued in July The report was substantially adopted by the legislature in 1990 when the proxy law was enacted and signed by the Governor.

2 Thus, the proxy springs to life when the patient is found to lack capacity to make health care decisions. The statute also contains a definition of capacity : Capacity to make health care decisions means the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision. 2 This is not very helpful; it begs the question of how we define the ability to understand in a particular context. In January 1991 the New York State Department of Health and the New York State Task Force on Life and the L/aw issued A Guidebook for Health Care Professionals which outlines the procedures to be followed to determine when the health care agent s authority becomes effective, but did not provide guidance in understanding what standard is to be applied in deciding when the client has the ability to execute a proxy. The Guidebook merely states Adults are presumed competent to create a health care proxy unless they have been found otherwise by a court. 3 In its report to the New York State Legislature issued in July, 1987, prior to the passage of the proxy law, the Task Force on Life and the Law Report devotes relatively little attention to this question. Chapter VI, Creating A Health Care Proxy, contains less than a page about Competence To Appoint a Health Care Agent. The section begins with the statement Under New York law, adults are presumed competent to manage their own affairs unless determined otherwise by a court The Task Force believes that adults should be presumed to have the authority to create a health care proxy unless determined otherwise in a court proceeding. The Task Force s recommendation was accepted by the Legislature which enacted section 2981 which provides 2 Public Health Law Section 2980(3). 3 Guidebook For Health Care Professionals, January 1991,

3 A competent adult may appoint a health care agent in accordance with the terms of this article For the purposes of this section, every adult shall be presumed competent to appoint a health care agent unless such person has been adjudged incompetent or otherwise adjudged not competent to appoint a health care agent, or unless a committee or guardian of the person has been appointed for the adult pursuant to article seventy-eight of the mental hygiene law or article seventeen-a of the surrogate s court procedure act. 4 Does this strong reliance on the presumption of capacity mean that every person, regardless of how ill he or she may be, regardless of how incapacitated he or she may be, has the legal right to execute a proxy unless there has been a judicial determination of lack of competency by a court? Hey, Dad, sign this, says the daughter to her father who just suffered a stroke and Dad signs. Since Dad has not been adjudicated as incompetent in such case the statute and the approach of the Task Force on Life and the Law would seem to lead us to conclude that the proxy would be deemed valid. This conclusion is supported by the result of a case a few years ago where I challenged the validity of a health care proxy signed by a seriously ill patient in the hospital on the ground that she lacked the ability to understand what she was signing. The judge held it was valid, ruling I had not overcome the presumption of competency. The judge did not focus on capacity as opposed to the Public Health Law s definition of legal competency. I enthusiastically endorse the goal of having the Health Care Proxy be easy to execute and be readily available as a tool for asserting selfdetermination at future times when a patient lacks capacity to make medical decisions, but over reliance on a legal presumption can sometimes lead to overreaching. There needs to be a balance between the approach some 4 Public Health Law Section 2981 (1).

4 courts use to allow documents to stand, which can give rise to potential abuse of an elderly and very ill person, and others who immediately conclude that a person lacks capacity merely because there is a diagnosis of dementia. In an article in the Journal of the American Geriatrics Society, 5 the authors wrote It is often difficult clinically to determine the extent of a person s incapacity. Traditionally, clinicians have tended to construe capacity as either present or absent. More recently, rather than regarding capacity as a general domain, clinicians have endorsed the construct of decision-specific capacity, whereby the measure of capacity is a person understands of a specific decision or task. Individuals have gradations of capacity. Persons with mild and even moderate levels of Alzheimer s disease have been found to retain the ability to make some, but not all, treatment choices. The decisional capacity needed to execute a health care proxy in which another person is designated to make treatment decisions has been described as low level of capacity. Thus, the informed consent process used to assure that a person understands the issues relating to executing a health care proxy can be simpler and less stringent than the process used to determine understanding of other tasks, such as a living will. (emphasis added) I heartily agree; and I also agree with the statement that the decisional capacity needed to execute a health care proxy is lower than the quantum needed to give informed consent to a medical decision or execute a living will. Presuming the patient has competency to sign a proxy just because no guardian has been appointed makes no sense, but there should be some standard. 5 Journal of the American Geriatrics Society, February 2000, Vol. 48, pages , Mezey et al.

5 What would such a standard include? I had the privilege of participating in a conference on Ethical Issues in Representing Older Clients held at Fordham University School of Law in 1993 regarding client capacity. 6 The participants made a proposal with respect to defining the capacity needed to sign a health care proxy. These concepts were subsequently incorporated into the American Bar Association s Model Rules of Professional Conduct. 7 Based on those proposals and my own experience, I suggest the following. A client should be determined to have sufficient capacity to execute a health care proxy if The client understands the need for assistance in making treatment decisions at the present time or in the future The client s choice of the agent is reasonable The client s choice is consistent with his or her history of prior choices and lifetime decisions The client can articulate the reasoning underlying his or her choice The client can appreciate the consequences of the execution of the proxy Doctors and lawyers may some day develop an assessment tool that looks at the ability to make judgments rather than memory and data recollection to determine task specific capacity for decision making. Until then, I hope the guidelines suggested above will be helpful to caregivers. The period of time following a diagnosis of Alzheimer s disease is difficult and thinking about seeing a lawyer may not be at the top of the action list. Families may also be discouraged because they are told it is too late. As I have argued, this is not necessarily true. We owe it to the patient to honor his or her autonomy and dignity where appropriate by having advance directives executed and later honored where appropriate. 6 The full proceeding of the conference may be found in a special edition of the Fordham Law Review, Vol. 62, March Commentary 6, Rule 1.14, Client with Diminished Capacity.

6 Peter J. Strauss practices in all aspects of trusts and estates as a Senior Counsel of Epstein, Becker & Green, P.C. Mr. Strauss has taught Elder Law at the New York Law School since 1990 where he is Distinguished Adjunct Professor of Law and Co-Director of the Elder Law Clinic which he founded in Mr. Strauss is a founding member and Fellow of the National Academy of Elder Law Attorneys, a former officer of the Elder Law Section of the New York State Bar Association, and a former member and Vice-Chair of the Board of Directors of Choice In Dying Partnership for Caring, Inc. He is co-author of "Aging and the Law" a treatise for professionals published by Commerce Clearing House, Inc. in 1996, and The Complete Retirement Survival Guide Everything You Need to Know to Safeguard Your Money, Your Health, and Your Independence" published by Facts-on-File, Inc. Should You Have a Health Care Proxy and Living Will? A living will (which the author prefers to call a health care declaration ) is a document expressing the kind of care and treatment a patient would wish to have or forego and sets forth the situations in which those wishes are to be carried out. A health care proxy is a document which appoints an agent to speak for the person who signs the health care declaration and advocates for that person s expressed wishes. The agent has the authority to decide for the patient and interpret the patient s wishes, applying general statements of the health care declaration to specific situations. The person should always appoint a successor agent in case the primary agent has died, is unavailable or is incapacitated. Are both documents needed? Yes, says Peter Strauss. The Living Will expresses and is evidence of the patient s wishes and Guides the agent s decisions Helps the agent deal with guilt Stands alone and allows for compliance with the patient s wishes even where the health care agent and successors die or fail to act for any reason. Provides clear and convincing evidence of the patient s wishes in the event the agent s decisions are challenged.

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