san martin trees

THE BUSINESS ADVANTAGE - Issue 9

HEALTH CARE CONSIDERATIONS: 
CHILD CARE POWER OF ATTORNEY

LIVING WILLS AND THE RIGHT TO DIE:
A LEGAL AND HISTORICAL PERSPECTIVE

Karen Ann Quinlan died in 1985.  Her death marked the end of many years of physical and legal struggling.  Nine years earlier, her parents won a landmark case in the State of New Jersey, entitling them to disconnect the respirator which sustained Ms. Quinlan’s life.  At the time of the ruling, Karen lay in a persistent vegetative state with no evidence of cognitive functioning, a condition that remained unchanged during the final nine years of her life.

But the personal tragedy of Karen Ann Quinlan also marked a beginning.  The New Jersey Supreme Court’s 1976 decision was the first to recognize the limited right of an individual to refuse medical treatment.  And a decade and a half later, the United States Supreme Court confirmed the existence of such a right for all individuals.  In Cruzan v. Missouri Dept. Of Health, the Supreme Court ruled that a state may require clear and convincing evidence of a patient’s preferences regarding life sustaining treatment before permitting it to be withheld or withdrawn.

Like Ms. Quinlan, Nancy Cruzan was in her early twenties when she suffered severe and irreversible brain damage.  For the next seven years her parents sought to withdraw the feeding tube which sustained her vegetative condition.  The state refused to permit the withdrawal of treatment because the only evidence of Ms. Cruzan’s wishes was the word of her parents.  When the case reached the Supreme Court, the state’s right to require clear and convincing proof of patient preference was upheld, and the case was remanded for further hearings.  Equally significant, however, was the Court’s acknowledgment that patients do have a constitutionally protected liberty interest to refuse medical treatment.

The legacy of Nancy Cruzan and Karen Ann Quinlan is a new era of patient rights.  Federal law now mandates that all federally funded health-care providers give each patient the opportunity to express health-care preferences, make living wills and appoint a health-care proxy.  Also, every state has passed some form of living will statute.  But the holding of Cruzan remains the law of the land and is applied in some form in most states -- a patient’s preferences regarding withholding of medical treatment must be established by clear and convincing proof.

There may be many ways to prove a patient’s preference.  But, by far, the best and most widely recognized method is a written record of intentions drawn up in advance of medical emergency -- a living will.

I. DURABLE POWER OF ATTORNEY FOR ASSET MANAGEMENT

A power of attorney is a written grant of authority from one person to another.  This particular power of attorney deals with the management of assets and is durable -- which means that it survives your incapacity.  This power complements the Nomination of a Conservator.  Both deal with preselecting someone to assume responsibility in the event of incapacity.  Together, they can address a wide range of activities including business affairs, personal care, home maintenance or other activities.

The Durable Power of Attorney for Asset Management is a less expensive tool than the Nomination of Conservator because it does not require court proceedings and a judge's appointment.  The Power is becoming more popular in California but still is not universally accepted, although it should be.

It should be used as a layer of protection in your asset management scheme, with Nomination of Conservator being the next step up in complexity and cost (but also guaranteed universal acceptance because it is sanctioned by the court).

II. DURABLE POWER OF ATTORNEY FOR HEALTH CARE

The Durable Power of Attorney for Health Care is a specific power of attorney created by the legislature of the State of California.  It gives to the person you designate as your attorney-in-fact the power to make health care decisions for you, subject to any limitations or statement of your desires that you include in the document.  The power to make health care decisions for you may include consent, refusal of consent or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose, or treat a physical or mental condition.  You may state in this document any types of treatment or placements that you do not desire.

The person you designate is charged with a duty to act consistent with your desires as stated in the document or otherwise made known or, if your desires are unknown, to act in your best interests.

II A. DIRECTIVE TO PHYSICIANS UNDER THE NATURAL DEATH ACT

A Directive to Physicians Under the Natural Death Act is a statutory creation of the legislature of the State of California.  The purpose of a directive is to ensure that your life will not be artificially prolonged if you have a terminal illness. 

If you have been diagnosed as having an incurable injury, disease or illness and are not able to give directions regarding the use of such life-sustaining procedures, the directive shall be honored by your family and physicians as the final expression of your legal right to refuse medical or surgical treatment and to accept the consequences from such refusal.

If you have been diagnosed as being pregnant and that diagnosis is known to your physician, this directive will have no force or effect during the course of the pregnancy.

A Uniform Anatomical Gift Act donation can also be incorporated in a directive stating any intentions regarding donation of organs for the use of others.

II B. NOMINATION OF CONSERVATOR

A conservator is a person, official or institution designated to manage and protect the interests of an individual who is unable to properly provide for his or her own personal needs or manage their own financial affairs. Conservators can be designated either by the conservatee (the individual needing care) or by the court.  Normally, a spouse or trusted family member is pre-nominated to avoid the cost of a contested conservatorship in the courts.

Pre-nomination of a conservator (1) ensures that the person of your choice will be named conservator, if needed, and (2) reduces the time, trouble and expense required to litigate the appointment. 

III. LIMITED POWER OF ATTORNEY FOR CHILD CARE

If you have minor children a limited power of attorney for child care is a valuable tool.  It grants authority to a babysitter, child care provider, in-law, grandparent, aunt or uncle to authorize medical care and make other decisions.  In our increasingly complex world, hospitals, doctors, dentists and other providers of services are increasingly reluctant to provide care unless clearly authorized to proceed.  This form is generally drafted in a "fill in the blank" fashion so a particular child care provider, time, date and extent of authority can be filled in by hand for each different occasion.  It can be used for vacations, regular child care, summer outings etc.

 


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