Question: My mother is 87 years old. She is getting more confused each day and refuses to sign a health care proxy or power of attorney. What will happen if she becomes unable to manage her affairs?
Answer: If your mother becomes unable to manage things on her own there may be the need for a guardianship proceeding, however this is usually used as a last resort. Regarding healthcare decisions, there is a New York State law called the Family Healthcare Decisions Act which lists, in order of priority, who can act as a surrogate decision maker for a person that is unable to make their own decisions regarding treatment. It is important to note that this law only applies if someone is in an institution, meaning a nursing home, rehabilitation facility, or hospital. At the top of the list of substitute decisions makers in the absence of a health care proxy is a court appointed guardian. This is followed by a spouse or domestic partner, adult child, parent, sibling, and then a close friend. Problems can arise with these default designations. For example, if the person who is first in line to make decisions does not act as the patient would want them to, or if there are multiple persons at the same priority level and they do not agree on the plan of action. If your mother understands that this default would be in place, she may be motivated to designate an agent to know she picked someone who is aware of her wishes.
The top of the priority list is a guardian appointed by the court. If your mother has not signed a health care proxy, you could bring a guardianship proceeding before the court to ask for the authority to make these decisions. This is necessary if there are medical decisions to be made in the home or at the doctor’s office as these locations do not fall under the control of the Family Healthcare Decisions Act. It may also become necessary to seek this authority from the court to clarify who the decision maker is or to make clear that your mother no longer has the capacity to make these decisions. After an investigation by a court evaluator, the judge will make a determination as to whether your mother has capacity to make her own decisions. If your mother is deemed to lack this capacity, the judge will determine who should be the guardian and what powers that guardian will have.
The powers given to the guardian can include personal needs powers, including healthcare decisions, and property management powers, including paying bills, managing accounts and property, and applying for government benefits. The specific powers given are supposed to be the least restrictive. Your mother should be left in charge of any functions that she can still perform for herself, while the guardian can step in for powers that are beyond your mother’s functional abilities. If your mother had signed a power of attorney giving another person the right to act on her behalf for financial, insurance and related matters, then it may not be necessary for the guardian to receive any powers for property management.
Your mother should meet with an attorney to discuss the pros and cons of signing health care directives, including a health care proxy and living will, and a power of attorney. If a professional explains the potential pitfalls of not preparing for her incapacity, she may be more likely to make some decisions and sign documents that will ensure there are persons in place to care for her in the event she becomes unable to care for herself.