Legal Planning for Nursing Home Care

Legal Planning for Nursing Home Care
 Those who arrange to enter a nursing home usually do so because they have medical needs that cannot be met at home. Because of the presence of medical problems, nursing home residents and their families must face the issue of legal planning for disability. The first concerns in planning for disability almost always focus on the medical issues, that is, how to arrange and pay for proper medical care. The onset of some degree of medical disability also raises legal issues: who will consent to medical treatment if the patient himself cannot understand the choices? Who will handle financial affairs if the patient becomes unable to do so, either temporarily or permanently? What are the patient's wishes for treatment during a terminal illness, and how will these wishes be communicated to the treating physician? 

We will look at two areas where the nursing home resident can conduct some simple legal planning that will benefit both him and his family should a serious disability occur: medical decision making and financial decision making. 

1. Medical Decisions 

Consent to Treatment 
Except in an emergency, a doctor, nurse, or other health professional cannot treat a patient without that patient's legal consent. In addition, many medical problems require the patient to choose between different treatments, such as between surgery and medication therapy. Again, the patient must give legal consent to these choices. This means that the patient must understand the choices and be able to communicate a preference. If the patient becomes physically or mentally unable to do this, the Louisiana Medical Consent Law provides that certain individuals can give consent in his place. The law lists those individuals in order of preference, which means that if no one is available in the first category, then one must look to the second category, and so on. The order of preference for giving consent is as follows: 

(1) the patient's curator, if a court has appointed one in an interdiction proceeding 
(2) the person appointed by the patient in a medical power of attorney 
(3) the patient's spouse, if the couple is not judicially separated 
(4) an adult child of the patient 
(5) the patient's parent for his minor child 
(6) the patient's brothers and sisters 
(7) the patient's other ascendants or descendants 

If there is more than one person in the category, then the consent is given by a majority of those available in the category. 

This law works well for those with a competent spouse, by ensuring that the spouse will be able to make medical decisions for the patient even if no advance planning has been done. For those who no longer have a competent spouse, however, medical decisions can become more problematic. For example, if the disabled patient has several adult children, medical decisions will have to be made by majority vote. This can lead to family tensions if there is not general agreement. This can be avoided with advance planning, by appointing one person to give legal consent pursuant to a power of attorney. A power of attorney is also important if the patient would want someone other than the family members listed above (such as special friend or partner) to make such decisions. In the list described above, a person designated in a power of attorney comes before all other family members under Louisiana's Medical Consent Law. 

Medical Power of Attorney 
A power of attorney for medical decisions is a legal document by which one person (the "principal") designates another person (the "agent") to make decisions on his behalf. The person giving the power of attorney retains the right to make decisions on his own, but the agent is empowered to make decisions when the principal is either temporarily or permanently disabled. Under a medical power of attorney, the agent can have the ability to consent to medical treatment, make treatment choices, or hire or discharge medical providers. To be effective under Louisiana law, the document must specify that it is for medical decisions; a general power of attorney will not suffice. 

It is important to remember that a principal can give a valid power of attorney only if he is able to understand what he is doing and can communicate his choice. In other words, when it is too late for the patient to give legal consent to medical treatment, it is also too late to sign a medical power of attorney. The medical power of attorney is useful only as a planning device, decided on before disability incapacitates the patient. By signing a medical power of attorney ahead of time, a person can ensure that medical decisions at a time of crisis will be made in an orderly fashion by the person he most trusts to do so. 

II. Living Wills 

The Medical Consent Law and the medical power of attorney do not deal with one area of medical decision making that has become important in the last few years: the question of whether to withhold or withdraw life supports in the event of a terminal and irreversible illness. These decisions are covered in what is usually called a Living Will. A Living Will is a written document or an oral or nonverbal communication in which a person gives directions as to when he wants life-sustaining procedures withdrawn. Louisiana law directs that the instructions in a Living Will be followed when two doctors certify that the patient suffers from a terminal and irreversible condition, including continual profound coma with no reasonable chance of recovery.

Life-sustaining Procedures 
Life-sustaining procedures are medical treatments that would serve to prolong life, but not cure the terminal condition. Examples of life-sustaining procedures would include cardiopulmonary resuscitation, mechanical breathing, major surgery, or kidney dialysis. A Living Will declaration would not affect the provision of comfort care (such as pain medication). 

Making a Living Will 
A person can make a Living Will in writing at any time. A person can also make a Living Will by an oral or nonverbal communication; however, this type of Living Will can be made only after the patient has been diagnosed with a terminal or irreversible condition. Regardless of the type of Living Will made, there must be two witnesses to the declaration, neither of whom can be related to the patient or entitled to inherit any portion of his estate. The person who makes the Living Will can revoke it, orally or in writing, at any time. It is also important to remember that the Living Will goes into effect only if the patient is incapable of communicating. This means that if the patient is conscious and able to communicate his wishes, he will make treatment decisions for himself. 

Using the Living Will 
The purpose of the Living Will is to inform those providing medical treatment of the patient's wishes regarding life-sustaining procedures. Therefore, it is a good idea to provide a copy of the Living Will to the treating physician for inclusion in the patient's medical chart. Family members might also want to present the Living Will when the patient is admitted to a hospital. 

Louisiana law also provides that a person can register his Living Will with the Secretary of State's office in Baton Rouge. A doctor or hospital that is treating the person can call the Secretary of State's office and find out whether there is a Living Will on file and obtain a copy. There is a $20.00 fee for registering a Living Will with the Secretary of State, as well as a $5.00 fee for filing notice that the person has revoked his Living Will. More information on the Registry can be obtained my contacting the following office: 

In the Absence of a Living Will 
If a person does not wish to make the decisions himself concerning when to withdraw or withhold life-sustaining procedures, the law allows him to choose another person (such as a relative, friend, or partner) to have this authority, much like a medical power of attorney. This must be done in a written document, signed by the patient in the presence of two witnesses (neither of whom is related to the patient or entitled to inherit any portion of his estate). A patient could choose the same person designated in a medical power of attorney, and use the same document, but it must specify that the agent has the authority to make decisions concerning life-sustaining procedures. Sometimes, choosing another to make these decisions, rather than using a Living Will, allows more flexibility in the face of a changing medical condition or changing technology. 

In the absence of a Living Will, Louisiana law provides that certain other individuals can make the decision concerning life-sustaining procedures for an adult patient who is terminally ill. As with ordinary medical decision making, the law lists those individuals in order of preference, which means that if no one is available in the first category, then one must look to the second category, and so on. The order of preference for making such decisions is as follows: 

     (1) any person whom the patient has chosen to make these decisions in a written statement before two witnesses 
     (2) the patient's curator, if a court has appointed one in an interdiction proceeding 
     (3) the patient's spouse, if the couple is not judicially separated 
     (4) an adult child of the patient 
     (5) the patient's parents 
     (6) the patient's brothers and sisters 
     (7) the patient's other ascendants or descendants 

If there is more than one person in the category, all of those available in the category must agree to the making of a Living Will before it can be done. Because of this requirement that decisions must be made unanimously by all available members of a category, such as the adult children, this can lead to a stalemate if there is disagreement. Where this might be a problem, it would be wise in advance to have prepared a Living Will or designated one person to handle the decision making. 

Ill. Financial Decision making 

In preparing for possible disability, a person must consider how his financial affairs will be conducted should he become temporarily or permanently unable to handle them on his own. Of course, not all residents of nursing homes are unable to handle their own finances. Many are able to maintain complete control, while others suffer from varying degrees of incapacity. All residents may want-to plan for the contingency that their ability to control their financial affairs may become interrupted to some degree. Good planning should consider alternative arrangements for essential financial functions, such as: receiving income; accessing savings and other assets; paying bills; managing personal funds at the nursing facility; transacting business with medical providers, insurance companies, and government agencies such as Social Security and Medicaid. 

Unlike medical decision making, the law does not provide for others to step in automatically and assume financial powers when a person becomes incapacitated. The chief tool a person can use in planning for such a situation is a power of attorney. 

Power of Attorney 
A power of attorney is the legal means by which one person (the "principal") gives to another person (the "agent") the power and authority to perform certain activities for the principal as if the principal were acting for himself. A person who has given a power of attorney to another can still act on his own, and he does not give away his personal autonomy by authorizing another to act as his agent. A person can also change his mind and revoke the power of attorney at any time. The power of attorney can be general, which would allow the agent to handle virtually all of the principal's affairs, or it can be for a limited or specific purpose. It can also be for a limited or specific time, if the principal so desires. In Louisiana, all powers of attorney are considered to be "durable," that is, they remain in effect even if the principal becomes disabled.

 In order to give a power of attorney to another, a person must be mentally capable of understanding the effects of what he is doing. If a nursing home resident has already become mentally incapacitated, it is too late to grant a power of attorney. If financial matters must then be handled, the only recourse may be to seek interdiction from a court. (See Interdiction below.)

Representative Payee 
For some nursing home residents, the only source of income is a monthly check from Social Security, SSI, or another government benefit program. These programs can arrange for another person to receive the resident's checks on his behalf without the necessity of a power of attorney or interdiction. This can be done by naming a family member or other trusted person as the "representative payee" of the resident's checks. The government programs will do this when it is shown that the nursing home resident cannot handle his funds on his own behalf. For more information on how this is done for a particular government program, contact the local office of the program that issues the benefit check. 

Interdiction 
Interdiction is the procedure under Louisiana law by which a judge appoints a guardian to handle some or all of the affairs of a person who is too incapacitated to handle these matters for himself. In Louisiana, the guardian appointed by the court is called a curator. An interdiction is the result of a court proceeding in which it must be proved that the person to be interdicted is incapacitated. Because, like any lawsuit, it entails hiring attorneys and presenting evidence in court, interdiction can be an expensive and time-consuming process. It usually is an alternative of last resort for those who have not done any planning and now require the intervention of others to handle their affairs.