End of life decisions
Understanding the Difference between Conservatorship or Guardianship
Sometimes it may be necessary to pursue a conservatorship or guardianship for a person who is not able to make or communicate decisions. Unlike a power of attorney, an individual appointed as a conservator or guardian can make decisions on behalf of the person being protected and those decisions cannot be overridden by the protected person. In a sense, in order to shield the protected person or the community from harm, the protected person’s freedom regarding the specific decisions being overseen by the court or legal document has been taken away.
Conservatorship
A conservator is an individual or corporation appointed by a court to manage the estate, property, and/or other business affairs of an individual whom the court has determined is unable to do so for himself or herself. The individual who is being protected is called the “protected person.”
Guardianship
Guardianship provides for the care of someone who is not able to care for himself or herself. The court may appoint a guardian if there is clear and convincing evidence that the person is incapacitated and that he or she requires continuing care or supervision. The individual who is being watched over on behalf of the court through the guardian is called the “ward.”
Conservatorship has to do with the management of things that the ward or protected person owns or has had control over. Guardianship has to do with the management of the life actions and needs of the ward or protected person. In many states, guardianship and conservatorship are all wrapped together under one responsibility. In other states, these two responsibilities are clearly delineated. In addition, some states are quite specific about various types of court-appointed representatives such as executors of wills and licensed fiduciaries who may, in some states, play the same role as a conservator. Each state has its own rules and procedures and may not even use names such as guardianship or conservatorship. Those states that have adopted the Uniform Probate Code in its entirety use the definitions and functions as outlined above. Other states that have adopted portions of the unified code may recognize the two functions of conservatorship and guardianship or they may not.
Another concept used in certain states is the “representative payee.” This is an arrangement that is less all-inclusive than a conservator in overseeing the financial obligations of a protected person. The representative payee may only be given certain rights for using income from the protected person to manage the bank account and to pay bills. Other rights over the property of the protected person may not be extended to a representative payee.
Guardians, conservators or other fiduciary agents acting on behalf of an incapacitated person or someone who is dead, can be nominated by a will or other document or by involved financial institutions or by trusted family members. The court will ultimately appoint whomever it feels is the best qualified person or persons.
Sometimes, families or individual children are too eager to pursue guardianship or conservator-ship or other arrangements without consideration of the consequences. For example, it is common for family members to disagree as to the degree of incapacitation of a loved one. An individual family member going against the wishes of the others in the family and petitioning the court may create great tension and dispute within the family. Sometimes, a child or other close relative is only interested in his or her personal gain by being a guardian or conservator. The needs of the person being protected or the needs of other family members are disregarded. Finally, a family in dispute, seeking a guardianship or conservator-ship from the court, can cause severe infighting among family members as well as permanent rifts in communication and future relationships. Brought ti you by Scott Underwood “The Reverse Mortgage Guy” and my friends at the National Care Planning Council
End of Life Important Decisions
Deciding How and When to Stop Curing and Start Caring. Some people are content to leave decisions regarding their death in the hands of others. By doing so, they expose themselves to unnecessary and futile treatments as outlined above. They may experience numerous visits to the emergency room in the last stages of their life. And their dependency on others often results in great stress to family members when they lose their capacity and didn’t make their last wishes known. Families are often forced to make decisions about life-support and treatment without knowing whether their loved one would have wanted these interventions. I know these are not fun topics because I was in the hospital recentlyI was asked about all of this before I went under
Medical providers have come up against this situation many times and as a result there are written guidelines for doctors dealing with end-of-life issues. Here is a listing of official positions taken by the American Medical Association on a number of end-of-life actions.
Do-Not-Resuscitate Orders. Efforts should be made to resuscitate patients who suffer cardiac or respiratory arrest except when circumstances indicate that cardiopulmonary resuscitation (CPR) would be inappropriate or not in accord with the desires or best interests of the patient…
Futile Care. Physicians are not ethically obligated to deliver care that, in their best professional judgment, will not have a reasonable chance of benefiting their patients. Patients should not be given treatments simply because they demand them. Denial of treatment should be justified by reliance on openly stated ethical principles and acceptable standards of care, as defined in Opinion 2.03, “Allocation of Limited Medical Resources,” and Opinion 2.095, “The Provision of Adequate Health Care,” not on the concept of “futility,” which cannot be meaningfully defined.
Medical Futility in End-of-Life Care. When further intervention to prolong the life of a patient becomes futile, physicians have an obligation to shift the intent of care toward comfort and closure. However, there are necessary value judgments involved in coming to the assessment of futility. These judgments must give consideration to patient or proxy assessments of worthwhile outcome. They should also take into account the physician or other provider’s perception of intent in treatment, which should not be to prolong the dying process without benefit to the patient or to others with legitimate interests. They may also take into account community and institutional standards, which in turn may have used physiological or functional outcome measures.
Quality of Life.In the making of decisions for the treatment of seriously disabled newborns or of other persons who are severely disabled by injury or illness, the primary consideration should be what is best for the individual patient and not the avoidance of a burden to the family or to society. Quality of life, as defined by the patient’s interests and values, is a factor to be considered in determining what is best for the individual…
Withholding or Withdrawing Life-Sustaining Medical Treatment. The social commitment of the physician is to sustain life and relieve suffering. Where the performance of one duty conflicts with the other, the preferences of the patient should prevail. The principle of patient autonomy requires that physicians respect the decision to forego life-sustaining treatment of a patient who possesses decision-making capacity. Life-sustaining treatment is any treatment that serves to prolong life without reversing the underlying medical condition. Life-sustaining treatment may include, but is not limited to, mechanical ventilation, renal dialysis, chemotherapy, antibiotics, and artificial nutrition and hydration…
Optimal Use of Orders-Not-To-Intervene and Advance Directives. More rigorous efforts in advance care planning are required in order to tailor end-of-life care to the preferences of patients so that they can experience a satisfactory last chapter in their lives. There is need for better availability and tracking of advance directives, and more uniform adoption of form documents that can be honored in all states of the United States …. Surrogate Decision Making Competent adults may formulate, in advance, preferences regarding a course of treatment in the event that injury or illness causes severe impairment or loss of decision-making capacity. These preferences should be followed by the health care team out of respect for patient autonomy. Patients may establish an advance directive by documenting their treatment preferences and goals or by designating a proxy to make health care decisions on their behalf…
A careful reading of the foregoing procedural positions from the AMA leaves a clear impression that health-care providers are looking for input from their patients or the patient’s surrogates in treatment relating to end-of-life. Too often the patient or family simply let the system go into automatic mode and they do not assert their rights. It is extremely important for the medical community to know beforehand what the wishes of a person are concerning his or her medical treatment.
The Value of Creating a Will. In general, a will is designed to provide for orderly distribution of assets to heirs.
Many people in their final years of life have already expended or gifted assets. In many cases, the only remaining asset of any value is the home. If a home is the only remaining significant asset of any value, this makes the need for a formal will less important. Perhaps of more importance, when there are few cash assets, is creating a list of who gets what of the treasures and other personal belongings that are of little intrinsic value.
There may be other final instructions that should be included in a will. For example, the creator of the will may also want to specify desired funeral arrangements and in some states the probate court will allow an executor or personal representative, who has not yet been appointed, to carry out these wishes.
If there are indeed assets of value that are to be divided among the heirs, and there are definite wishes about who should get what, a will is vital. This is especially true where there are multiple marriages and children of those marriages. Experience over the years has given us numerous examples of the property going to the wrong people because no will was ever made. There are also many examples of individuals who want to pass on the ownership of the business or other property who leave handwritten instructions that were poorly executed and not well thought out. Without the assistance of an attorney, some of these holographic wills have ended in complete disaster. The final outcome for the persons creating these documents has been exactly the opposite of what they wanted.
Generally a will specifies the disposition of specific assets and such lists are incorporated into it. But, often the disposition of items with little intrinsic or economic value but immense sentimental or historical value, is just as important if not more important to most us. These are such things as personal histories, achievement awards, genealogies, favorite ceramics, handicrafts, heirlooms, jewelry, special furniture, pictures, collections, etc.
It is important to make a list of who gets what of the “special” belongings and update it regularly. Sometimes in the haste and confusion of arranging long term care, “treasures” end up in the trash or at the local thrift store. Or even more likely, they end up in the wrong hands. The improper distribution of these special items can sometimes cause bad feelings or infighting between family members. This contention has even broken families apart.
There is no need for a list of who gets what to be part of the will and the list may not even require the help of a lawyer if there is no will. Giving copies of the list to the recipients should be sufficient enough intent for family members to respect final wishes. If the person making the list is concerned that family members will not respect his or her wishes, he can legalize this list by making it part of the will.
Or if a legal document is not created, a list of “special” belongings will be treated as a legally binding holographic will if it is created in the maker’s own handwriting, dated and signed and a declaration is made that the maker is of sound mind to devise such a list. Certain trusted family members will be given a copy of this will and instructions to petition the probate court if other members of the family refuse to respect the intent of the distribution.
In some states, a holographic will must also be witnessed. To be safe, always have at least two witnesses sign a holographic will and have it notarized for the signatures.
Medical Care Decisions Prior to Death- No one in this country dies from old age. In the mid-1950s, “old-age” was discontinued as a cause of death on all US death certificates. The assumption was that old age itself was not a disease but contributed to life-threatening disorders that were the ultimate reason for death. The chart below shows the major causes of death for Americans. About 53% of those deaths are due to cancer or heart disease. But note also the high incidence due to chronic lung diseases, accidents and stroke.
Medical Care Prior to Death. In the first half of the 20th century most people who died had an accident or contracted a disease or had a physical disorder that quickly lead to death. Life-saving medical interventions such as sophisticated resuscitation, complicated surgeries, ventilators, feeding tubes and other life-support were rarely used or even available. Nowadays there is great emphasis on curing medical problems sometimes to the exclusion of recognizing that death might be a more welcome outcome.
Surveys indicate that older people are often more afraid of death than younger people. But for all Americans, young and old, there is a great fear of death and oftentimes family or those who are sick will go to great lengths to try procedures that may be ineffective in prolonging life. We need only look to the Terri Schiavo case many years ago – where even the United States Congress got involved – as a reflection of the attitude of many Americans who are unwilling to let loved ones pass on. Estimates are that about 30% of all Medicare reimbursements are spent on people in the last year of their life. It is a fact that much of this medical care did little to prevent death and prolong life.
According to the Dartmouth Atlas study on death: “The quality of medical intervention is often more a matter of the quality of caring than the quality of curing, and never more so than when life nears its end. Yet medicine’s focus is disproportionately on curing, or at least on the ability to keep patients alive with life-support systems and other medical interventions. This ability to intervene at the end of life has raised a host of medical and ethical issues for patients, physicians, and policy makers…
The question, then, is which is better? From the dying person’s perspective, more is not necessarily a good thing – more visits to doctors for someone who is very sick can be stressful and exhausting. For many people a hospitalized death is something to be avoided if at all possible. From the perspective of the health care system, much of the care being given is futile, and accomplishes little. People who live in areas with very high utilization of hospital resources do not live longer than people who die in areas where utilization is lower – and if extension of life is not the goal of intervention, what is? From society’s perspective, the cost of this kind of intervention is high, futile, and takes resources away from places where the money might be spent far more productively.”
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