Posted On Jan 02

What is your answer when a family member asks whether the attorney in fact for an elderly person must account to the entire family? Do you ask the family member what he needs to know and whose interests are served when third parties are “kept informed”?

Many family members are disappointed when the attorney in fact does not engage them in shared decision making. This is especially true after the principal has become mentally incompetent. When making decisions, the attorney in fact should take into account the importance that the principal places on the family’s preferences. Like attorneys at law, the attorney in fact has a duty to understand and follow the principal’s wishes. Family members do not always share the principal’s priorities and may demand to be kept informed in an effort to circumvent the principal’s wishes (1). This is especially true when the person becomes disabled. A disabled principal may have needs that are burdensome or disruptive for the family. For example, a principal with cancer may feel pressured to reject radiation therapy because of the time involved and the number of outpatient visits.

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Posted On Dec 18

Elder Law Section Presentation – Proposed Family Consent Law
Bold-faced type is the captioning of the power-point slides. Commentary immediately follows each section.

Health Care Representative

A health care representative is an adult given authority under this Act to consent to medical treatment for another adult who is unable to provide consent.
* If a statute authorizes a person to provide consent, then may that person also refuse consent? Specifically, to refuse a medical treatment that may or may not allow person to die?  “The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”  Cruzan v. Director of Missouri Dept. Health, 497 U.S. 261, 270 (1990).

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