A. Ethical and Legal Issues Affecting Elderly
Loss of rights, victimization, and other grave problems face the person who has made no plans for personal and property management in the event of disability or death. The advice and services of a competent attorney regarding financial and personal issues can preserve future autonomy and self-determination. The nurse as an advocate can encourage the older person to prepare advance directives for future decision making in the event of incapacitation.
A power of attorney is a legal agreement that authorizes a designated person to act in specific, outlined circumstances on behalf of the signer. This is a form of voluntary guardianship, permission for which is freely granted when the older person is competent. Unless stated otherwise, a power of attorney is invalidated on the incapacity of the signer. A durable power of attorney is a similar agreement that continues even if the older person is disabled or incapacitated.
A trust is another option that the competent older person can consider. In a trust, the person designates someone to manage his or her property, stipulates how and under what circumstances the property will be managed, and designates a beneficiary. If incompetency or disability occurs, management of the property is undertaken according to the person’s wishes. If no advance arrangement has been made, and the older person appears unable to make decisions, anyone can petition the court for a competency hearing. If the court rules that the person is incompetent, the judge will appoint a guardian – a third party who is given powers by the court to assume responsibility for making financial or personal decisions for that person.
There are two kinds of guardians: guardian of the person and guardian of the estate. Because such a court action strips the civil liberties and constitutional right from the older person, a potential for great harm exists. Safeguards include the following: 1. The older person must be given notice.
2. He or she must be given an opportunity to be legally represented. 3. Medical testimony can be cross-examined. A less restrictive. A less restrictive form of guardianship, called limited guardianship, transfers to the appointed guardian only those powers or duties that the older person cannot exercise. Although this alternative is not widely used, it remains an option.
An advance directive is a formal, legally endorsed document that provides instructions for care (living will) or names a proxy decision maker (durable power of attorney) and is to be implemented in the event of the signer’s future decision-making incapacity. This written document must be signed by the person and by two witnesses; a copy should be given to the physician and incorporated into the medical record. The person must understand that this document is not meant to be used only when certain (or all) types of medical treatment are withheld; rather, it allows for detailed description of all health care preferences, including full use of all available medical interventions. The health care proxy has the authority to interpret the patient’s wishes on the basis of the medical circumstances of the situation and is not restricted to deciding only whether life-sustaining treatment can be withdrawn or withheld.
In 1990, the Patient Self-Determination Act (PSDA), a federally mandated law, was enacted to require patient education about advance directives at the time of hospital admission, along with documentation of this education. The PSDA is also mandated in nursing homes to enhance resident autonomy by increasing involvement in health care decision making. A growing body of research indicates that nursing homes implement the PSDA more vigorously than hospitals do. In both settings, however, the documentation and placement of advance directives in the medical record varies considerably from facility...