Advance Directives

Instructions that indicate an individual’s preferences for health care if the individual loses the ability to make or communicate decisions for him/herself. The types of decisions typically specified in an advance directive include health care proxy (HCP), a living will, organ and tissue donation, or power of attorney (POA).

Guardianship

The legal process whereby the Court appoints a guardian for a mentally or physically incapacitated person who is unable to make or communicate safe or sound decisions for him/herself. The incapacitated person is an individual who is unable to care for his/her basic needs, to the extent that his/her health or safety is in jeopardy. Guardianship may be appointed on an emergency (temporary) or permanent basis. Guardianship can be limited to specific areas of need, or unlimited. The decision-making powers of a guardian may not only include health care decisions, but also other aspects of personal well-being (i.e., housing and placement decisions and arranging caregivers), and financial decisions (i.e., designation as Social Security Representative Payee). There may be one guardian , or there may be more than one person, working together as coguardians.

Facilitate discussion

Certain medical conditions allow for the opportunity to consider forensic issues before the patient becomes incapacitated. For example, in neurodegenerative disorders, prior to significant cognitive decline, the patient has time to set up Advance Directives and to have discussions with the individuals who he/she will entrust with making decisions when he/she is no longer able. Other medical conditions do not allow for the opportunity to discuss forensic issues beforehand, yet the treatment team can highlight key issues for individuals who are tasked with managing the affairs of such individuals. For example, a patient with a traumatic brain injury (TBI) may need assistance with certain activities of daily living (e.g., medication management, driving, financial management, and cooking) but not with other activities, depending on the location and severity of injury. Certain overlearned sequences are retained even with memory impairment from a neurological insult. Therefore, the individual with TBI may still maintain some independence for tasks that they have done for years or decades (e.g., familiar routines or hobbies). In most cases, the least restrictive environment is preferred to allow the patient to maintain independence as long as possible.

Guide decisions

What decisions will the POA or guardian need to make? The team has a unique understanding of the medical treatment plan including areas of deficit and areas of preserved cognition and physical function. Based on this understanding of the patient, the treatment team can help the POA or guardian make informed decisions about the level of care needed for the incapacitated person’s mental and physical health. Discussion of the patient’s known values (what the patient values if he/she could speak for themselves) can help Agents make informed decisions on the patient’s behalf. For this reason, documentation about both strengths and weaknesses are important (see documentation section below). Using residential placement as an example, the treatment team can guide decisions based on the medical, cognitive, and mental characteristics of the incapacitated person’s condition to help the Agent determine the most suitable discharge disposition for the patient, such as discharge to home with support from family caregivers or home health care, or to a more structured long-term care setting if appropriate.

Power of attorney (POA)