Elder Care Incapacity Planning: Advanced Directives and POLSTS, POAs, Controversial End-of-Life Healthcare Decisions

Incapacity and end-of-life planning are among the most critical tasks performed by elder care attorneys to help elderly or disabled clients and their families. Elder care attorneys must address the medical and business/financial needs of disabled, sick or dying clients. Attorneys should develop a plan that includes Advance Directives and similar documents regarding healthcare decisions for incapacitated patients and end-of-life decisions.

Elder care attorneys should be able to draft Durable Financial Powers of Attorney and know how and when to expand or limit the scope of such documents to meet a client’s goals. When necessary, an elder care attorney should know how to pursue guardianship and/or conservatorship for an incapacitated adult if there are no incapacity planning documents in place or if these documents are not sufficient to protect this person from physical or financial harm.

In addition to the Advance Directive or Healthcare POA and Living Will documents, several states use an advance care planning form known as POLST (Physician Orders for Life-Sustaining Treatment) or MOLST (Medical Orders for Life-Sustaining Treatment) which have the same authority as any other medical order. A 2016 Georgia Supreme Court decision held that health care providers were not immune from liability under when the provider failed to heed a patient’s medical directive and ignored directions from the Health Care Agent.

Another controversial topic in healthcare decision-making is the legality of VSED, and who can enforce the wishes of a patient who has stated a preference for VSED. A 2016 Oregon court ruled that Oregon law required an Alzheimer's patient be spoon-fed despite an advance directive against “artificial nutrition” and hydration. The court ruled that the directive did not specify refusal to be spoon-fed.

Listen as our panel of elder care attorneys provides knowledge on representing clients facing incapacity and end-of-life care issues. The panel will review how to develop an effective long-term care plan for clients by using Advance Directives for Health Care, Durable Financial Powers of Attorney, and discuss the last resorts of guardianship and conservatorship. Panelists will also discuss how state legislatures and courts are addressing controversial health-care decision making, including VSED and physician-assisted suicide.

1. Incapacity Planning for Health Care Decision-Making: Advanced Directives, Living Wills, DNRs POLSTs
   1. Alicea vs. Doctor’s Hospital (Georgia case on Advance Directives)
2. Incapacity Planning for Financial Decision Making: Durable Financial Powers of Attorney
3. When All Else Fails: Guardianship & Conservatorship
4. Controversial Topics in Healthcare Decision-Making: Voluntarily Stopping Eating & Drinking (VSED) and Physician-Assisted Suicide
   1. In re: Nora Harris (Oregon case)

The panel will review these and other key issues:

• How can solidly drafted Advanced Directives facilitate the implementation of a well-designed long-term care plan?
• What are the key factors for counsel when advising on the scope of a Power of Attorney?
• When should clients consider the use of POLSTs and MOLSTs, and how effective are these documents?
• How are state legislatures and courts addressing controversial topics in healthcare decision-making such as voluntarily stopping eating & drinking (VSED) and physician-assisted suicide?