EthicsWalk addresses
spiritual care as an ethical enterprise.
It explores why relationships between
spiritual care providers and those
they serve need protection, and
examines what that protection entails. PlainViews invites
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Questions about Surrogate Health Care Decision Makers
In "Surrogate Health Care Decision Makers," Anne Underwood states "DPAs are not limited to end-of-life issues; they serve whenever a person becomes incompetent at any stage of life by disability or illness." While, in general, the statement is true it is possible for a DPA to be limited. For example, a free booklet written by the ethics committee of my hospital contains the following in its "Power of Attorney for Health Care" in the obligatory warning section: I understand that it (the POA-HC) allows another person to make life and death decisions for me if I am incapable of making such decision. Because of the limitation to life and death decisions written into the document I successfully lobbied for another version to also be available that makes the POA-HC effective for any medical decision. This is shared just to remind us that the safest course for those who need to rely upon an advance directive is READ THE DOCUMENT. Even better would be the document plus a clarifying conversation between the earlier competent patient and the surrogate and other key decision makers, but in the absence of such there remains the caution: READ the document.
Dale Pracht
Director, Spiritual Care Services
Faith Regional Health Services
Nebraska
In response to the comment "A health care guardian must follow any advance health care directives expressed by the patient when she or he had capacity," my understanding is that the health care agent can override the living will to the extent of allowing a temporary trial of some life support intervention to test possible benefits. In many cases, this has involved a slow process of assisting the family to work through their own grief and emotional barriers to following the patient's wishes. So my question would be: Are you saying that if someone challenged the process described above in a court of law the health care agent could be required at that time to follow the patient's wishes? Or are there more general practical implications that I'm missing?
Chaplain Alexis Versalle
Pardee Hospital
Hendersonville, NC
Because both of these comments require more than a brief response, Anne will address them in her article that will be in the next issue.
Surrogate Health Care Decision Makers
Rev. Gordon Putnam discusses the value of chaplains’ asking clarifying medical questions for patients. [PlainViews, 10/18/06] Similarly, chaplains may be useful in clarifying roles of people functioning as agents for incapacitated patients.[1] Such agents most commonly hold a Durable Power of Attorney (DPA) for Heath Care [2] and often are family members or close friends of the patient. DPA’s are recognized, albeit with variations, in every state, and offer the strongest avenue for patients’ health care wishes to be advocated and honored. DPAs are not limited to end-of-life issues; they serve whenever a person becomes incompetent at any stage of life by disability or illness. Wisdom suggests everyone designate a DPA while competent to choose.
When a patient becomes incapacitated (a medical determination) and has not designated a DPA, if dissension arises among relatives and/or with the medical team, a court may be asked to appoint a guardian. Relatives, close friends, or medical personnel make the request. Before acting, the court hears evidence to determine if the patient is competent (a legal determination). If the court determines the patient incompetent, a guardian is appointed. When there are significant property assets, a conservator may be appointed to oversee the estate.[3]
State probate or surrogate codes set standards for incompetency and delineate the responsibilities of guardians and conservators.[4] This discussion uses language of the Uniform Probate Code [5] (UPC) adopted by eighteen states.[6] All states use similar language and concepts.
Guardians have most of the powers and duties that a parent has toward a minor child, although guardians do not provide for patients out of the guardian’s own resources. To the extent possible, the guardian should include the patient in decision- making processes. Guardianship may be limited to health care (or other types of decisions) or may encompass all aspects of the patient’s life. It may be permanent or temporary. If the patient has a small estate and no conservator, the guardian’s authority may include managing the patient’s money and property. [The resources of the patient must never be co-mingled with those of the guardian.]
A health care guardian must follow any advance health care directives expressed by the patient when she or he had capacity. The guardian must consider the patient’s personal values when making decisions on the patient’s behalf. However, the guardian has no greater power to determine course of care than would the patient have if competent.
Appointment of a conservator may be permanent or for a “single transaction” to manage the business/financial/property affairs of a patient. If there is a guardian, the conservator must consider the guardian’s recommendations as to the best interests of the patient, but the final management decisions for which the conservator was appointed belong to the conservator.
If relatives, friends, the medical team or anyone else concerned for the patient believes either the guardian or conservator is acting outside the best interests of the patient, the court can be asked to terminate the guardian or conservator’s appointment.
DPAs for health care are a regular component of many lawyers’ discussions with clients making wills and doing estate planning. Their importance should be stressed in health-care discussions between clergy and congregants – especially hospital chaplains.
[1] The Uniform Probate Code (UPC) defines incapacitated as “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause except minority to the extent that he [sic] lacks sufficient understanding or capacity to make or communicate reasonable decisions concerning his [sic] person.” Most states use some form of this definition. Capacity usually is discussed in conjunction with “competency”, the later which is “specific rather than global and depends not only on a person’s abilities but also on how that person’s abilities match the particular decision-making task he or she confronts.” Principles of Biomedical Ethics, Beauchamp and Childress, 2001, p.70.
[2] Also known as Health Care Proxy in some jurisdictions.
[3] The UPC sets forth the following list in order of preference for the appointment of guardians or conservators: 1. The person or organization nominated in writing by the person in need of a guardian or conservator; 2. The spouse; 3. An adult child; 4. A parent; 5. Any relative with whom the person in need…has lived with for more than six months prior to the filing of the petition; 6. A person nominated by someone who is caring for the incapacitated person or paying benefits to him or her.
[4] One must consult the Probate or Surrogacy Statues or Code of the state in which one’s facility is located. A Goggle search of the Uniform Probate Code will reveal most state sources, or call a local lawyer for statutory references.
[5] Uniform Probate Code was approved in 1969 by the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the American Bar Association. The intent was to unify terms and processes among the states. Unification remains illusionary.
Anne Underwood has an undergraduate
degree in religious studies, a
master’s degree in rural sociology
and a mid-life law degree obtained
after working over a decade as
a college administrator. She has
mediated for the Maine family courts
since 1983. Currently she serves
as an advisor to the ethics commissions
of ACPE, APC, the CCAR (Central
Conference of American Rabbis),
and NAJC, and consults with a variety
of Protestant faith communities
on issues of power, fair process,
and congregational conflict management.
Her articles on mediation and restorative
justice have appeared in the ACPE
News, The APC News and on the ACPE
web site. Articles on clergy accountability
and judicatory processes are published
by the Alban Institute and The
Journal on Religion and Abuse.
A
chapter, “Clergy Sexual Misconduct:
A Justice Issue,” appears in Body
and Soul: Rethinking Sexuality
as Justice-Love
, Marvin Ellison
and Sylvia Thorson-Smith, editors,
The Pilgrim Press, 2003.
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