Current Topics of Interest – or CONFUSION – in Risk

1. Current Topics of Interest – or CONFUSION – in Risk Lisah Carpenter, JD, BSN, CPHRM April 2014

2. Today’s objectives: To learn the difference between DPOA and DPOAH 2. To assess activation of DPOAH 3. To distinguish the roles of DPOAH and Guardian 4. To distinguish different types of guardianship 5. To identify the limitations of DPOAH and Guardian 6. How to respond to an “explant” legal hold or request for hardware and tissue specimens

3. What’s the difference between DPOA and DPOAH? As you might suspect, the key is the “H” . . . DPOA => Durable Power of Attorney DPOAH => Durable Power of Attorney for Healthcare Watch your documentation . . .

4. DPOA DURABLE POWER OF ATTORNEY Think MONEY, i.e., banking, estates, property . . . generally irrelevant to your work*** ***rare exception – occasionally, the DPOA confers authority to make heath care decisions – must read the document

5. DPOAH DURABLE POWER OF ATTORNEY FOR HEALTHCARE This is the document you are looking for . . . the DPOAH, once activated, confers authority on the AGENT to make healthcare decisions for the PRINCIPAL/PATIENT. The PRINCIPAL/PATIENT chooses her/his AGENT and an alternate. If not activated, the AGENT has NO authority to make decisions or receive information without patient consent. The patient still calls the shots!

6. SITUATION Patient is 78 years old, alert and oriented. She is scheduled for an elective hip replacement. In pre-op testing, she tells you that she wants her DPOAH activated because she wants her son/agent to make all future health care decisions on her behalf. In this circumstance, who may activate the DPOAH? If not activated, can the patient’s wishes be honored? Who signs the consent form?

7. SITUATION Patient is a 56-year-old man with history of alcoholism and poorly controlled diabetes. There is a DPOAH on file, naming his daughter as primary agent. Last admission was for sepsis, at which time the DPAOH was activated. Patient was discharged to detox facility and is back for non-urgent cholecystectomy. The patient’s daughter has accompanied her father to the hospital. Who should the providers “consent” and who should sign the surgical and anesthesia consents?

8. LEGAL GUARDIAN This is a Court appointment. The paperwork must be on Court letterhead and be signed by a Judge, and dated. The Court appoints a GUARDIAN when the Court makes a finding that the WARD/PATIENT lacks the legal competency to make his/her own decisions. The Court decides the extent of the GUARDIAN’s authority over the WARD/PATIENT. The only way to tell is to read the Order/Decision.

9. SITUATION Patient is 35 years old with a history of bipolar disease. Last month he was arrested for indecent exposure and found by the Court to be incompetent to stand trial. He presents for a toe amputation following a traumatic injury, and the surgeon directs you to obtain his signature on the consent form. You see that the surgeon wrote in the progress note that she has explained the procedure to the patient, and the patient understands the risks, benefits and alternatives. The patient tells you that he spoke with the surgeon and has no further questions. Having recently been declared incompetent by the Court, does the patient have capacity to sign a surgical consent?

10. DIFFERENT TYPES OF GUARDIANSHIP • Full Guardianship– The Guardian controls all aspects of the Ward’s life, i.e., where s/he lives, finances, and healthcare decisions. • Limited Guardianship– The Guardian controls just certain aspects. GUARDIAN of the PERSON TRUMPS DPOAH • Temporary Guardianship– The Court places a time limit on the duration of the guardianship. • Guardianship of a Minor– Terminates once the minor reaches the age of majority. May be re-established for the Ward as an adult. • Springing Guardianship– The Ward is in control unless and until s/he fails to meet the conditions set by the Court, at which time the guardianship “springs” back into effect. May be difficult to operationalize in healthcare setting as guardian generally still has authority to obtain records.

11. Why is this important??? The WARD/PATIENT may only consent to health care if s/he has control over that aspect of his/her life.

12. SITUATION Patient is 22 years old, presenting for an exploratory laparotomy due to unresolved abdominal pain. There is an alert in the system that indicates that the patient has a guardian. The patient explains that her mother only has guardianship authority over pending litigation to which she is a party. How is the patient’s statement verified? You learn that it is a full guardianship over the person. What do you do? You learn that she is correct, but when you ask the patient if she has spoken with her surgeon about the procedure and if she has any questions, she appears confused. What is your next step?

14. What are the treatments or procedures that the Guardian or activated DPOAH Agent cannot give consent for in NH These treatments/procedures require a Court Order.

15. SITUATION Patient is an 82-year-old gentleman who presents for a series of ECT treatments. He is voicing his objection. His Guardian presents you with a court Order relative to the treatments. How do you proceed?

16. Read the Order carefully. . . Does it order the treatment/procedure? or Does it grant authority to the Guardian to consent to the treatment/procedure?

17. Portable DNR POLST (Physician’s Order for Life-Sustaining Treatment) COLST (Clinician Order for Life-Sustaining Treatment)

18. What is a • “Portable” Do-Not-Resuscitate • Order? • It is a physician/APRN order intended for pre-hospital use. It is rendered on a HOT PINK sheet of paper. • Once in-house, the P-DNR is not a valid order; however, it may be useful as a basis for discussion with the patient/DPOAH or Guardian regarding the patient’s wishes and/or preferences during the current hospitalization. • The patient/DPOAH or Guardian should always be consulted regarding each new DNR order. • Never assume that a DNR issued during one encounter is a directive for a subsequent encounter.

20. When a patient presents at the hospital, a new code status assessment should be made. . . DNR orders are encounter-specific; they do not “carry over” from one in-patient stay to the next.

21. Requests for • Explants and Tissue Specimens • These requests generally come from a law office; occasionally, directly from the patient. • Refer to your organization’s Policies and Procedures for workflow.

22. “Explant Legal Hold” • Who may need to be involved in implementing a legal hold for hardware and specimens? • Surgeon • Pre-Surgical Testing • OR Scheduling • Perioperative Services • Pathology

23. Sample process for Explant Legal Hold after involved staff notified . . . • Surgeon will remove the explant hardware and/or tissues and hand off to OR staff. • OR staff will handle the specimen(s) according to the directions provided by the requesting party. • OR staff will hand off the specimen(s) to the Pathology Supervisor, or designee. • What happens after hours . . . • Pathology will retain the specimen(s) according to the directions provided by the requesting party. • Specimens will be retained for 90 days from explant to disposal, unless other arrangements are made with the requesting party. • Pathology will notify Medical Records after specimens are released, for final documentation.

24. Q&A • Try not to use DPOA and DPOAH interchangeably in your documentation – know the difference. • Always confirm whether a DPOAH is currently activated – if the patient appears to understand the conversation, capacity may be re-established. • Not all guardianships are created equal – read the Order. • An explant “legal hold” must be complied with – be familiar with the process in your organization.