HEALTHCARE ADVOCACY

Guardianship is an intrusive relationship that removes fundamental rights such as the right to get married, make medical decisions, manage assets, and sign legal documents. 

Less restrictive alternatives are ways to help someone make decisions without going to court and without removing rights through guardianship. These options may meet the decision making needs in ways that support their preferences and independence. Planning ahead can preserve a person's rights and help protect them from guardianship.

Less restrictive alternatives offer options for decision making to meet many different needs. Supporters must communicate with the decision maker and practice client-centered care based on the individual's needs, goals and preferences.

Supported decision-making enables an adult to select people they trust to advise and support them in making their own decisions.

Visit Rethinking Guardianship for more information and resources about guardianship and alternatives in North Carolina. 

A written plan should be developed as soon as possible following commitment to services with a service agreement or appointment as a guardian. The plan should describe the person's mental and physical condition, recommended type of guardianship (if court ordered), scope of care to best meet the person's needs without assuming any more control than necessary. 

The plan should be developed in consultation with family members when possible and with input from community agencies involved in providing services to the person. A review should be made of the person's mental and physical condition, focusing on his ability to be responsible for personal welfare and to manage affairs. Based on this review, a determination should be made of how much the person is responsible for decisions about his personal welfare. If the person needs assistance in this area, the type and degree of assistance needed should be noted in the plan. 

For example, the person may be able to make decisions about daily living needs but need assistance from community services in providing care. They may be able to make decisions regarding medical care and treatment but lack transportation or a system to remind them of appointments. Information about the person's mental abilities and limitations will be needed for the plan. If there is any question about the nature or degree of the person's abilities and limitations, a multidisciplinary evaluation should be requested. 

The plan should include services to be provided to the person, the person's family, others involved in their care, comfort, maintenance and overall well-being. Ongoing care management involves goal setting, planning services/treatment, monitoring and reassessing the service/treatment plans, and termination of the guardianship (where appropriate). The plan should also include a schedule for seeing persons as frequently as is needed and appropriate, and having contact related to the person's care, comfort and maintenance no less than every 30 days if court ordered guardianship is established and no less than quarterly otherwise.

Care plans should be reviewed quarterly depending on the client's goals and outcomes. They should be referred to structure interventions and should include short and long-term goals that are specific, measurable, and timely. Whenever possible, care planning should be a collaborative effort with the client used to coordinate, prioritize and maintain continuity of care. 

North Carolina has two ways for competent adults to communicate decisions about their medical care if they become incompetent and no longer able to make these decisions for themselves or communicate their wishes. A living will isa written declaration of the individual's desire for a natural death. A health care power of attorney is a written document appointing another person to accept or refuse medical treatment in the event of incapacity. Not all states have laws providing for living wills or healthcare power of attorney. Only documents prepared under North Carolina law are valid in this state.

1. Declaration of a Desire for a Natural Death

North Carolina laws reflect the recognition that an individual's rights include the right to a peaceful and natural death and that an individual has the right to control those decisions including the decision to have “extraordinary means” withheld or withdrawn in instances of terminal conditions. The living will or a Declaration of a Desire for a Natural Death allows the individual to make choices without withholding or discontinuing extraordinary means such as artificial nutrition or hydration in the event of terminal illness, incurable illness or a diagnosis of being in a persistent vegetative state. The instructions in the living will cannot be used until the attending physician determines, and a second physician concurs in writing, that the individual's condition is terminal and incurable or diagnosed as a persistent vegetative state. The individual can revoke the living will at any time, but the revocation does not become effective until the attending physician is notified.

2. Health Care Power of Attorney

Anyone 18 years old or older who understands and can make and communicate healthcare decisions may designate a healthcare power of attorney. The health care power of attorney allows a competent adult to designate an individual to make medical decisions for him if he cannot make them for himself. The healthcare agent's authority can be as broad or limited as the principal chooses. The authority which can be given to the agent includes all powers the individual himself would have, including the power to consent to a doctor's giving, withholding, or stopping any medical treatment, service, or diagnostic procedure, including life sustaining procedures.

The health care power of attorney becomes effective when the doctor designated in the document determines that the principal lacks sufficient understanding or capacity to make or communicate healthcare decisions. The principal may revoke the healthcare power of attorney at any time, as long as he is able to make and communicate medical care decisions. The revocation becomes effective once it is communicated to every agent named and the attending physician. The principal can recommend a future guardian of the person in the document. The healthcare power of attorney is no longer effective when a guardian is appointed by the clerk of court for the principal. If the principal has designated both a durable power of attorney and a health care agent with health care powers, the health care agents' power is superior regarding health care matters. The health care power of attorney may be incorporated into a declaration for a desire for a natural death.

An advance directive, made while a person is competent, has the force of a decision made by a competent adult, and thus must be honored in the same way. Any advance communication made by a person presents the best evidence of a person's wishes. Advance directives enable individuals to make choices and identify someone they want to carry out their decisions when they become incapable of doing so. 

A healthcare agent is limited to healthcare decisions only. Healthcare Agency is designated in a healthcare Power of Attorney document to make or communicate medical decisions for a client at some future time, if they are unable to make decisions for themselves.