Skilled Nursing Facility Residents Appointing Health Care Decision makers.

Residents at Skilled Nursing Facilities (“SNF’s”) are well advised to have a an Advanced Health Care Directive (“AHCD”), with an authorized agent (health care decisionmaker) in place to make decisions regarding medical treatment and placement. However, a SNF still cannot require the execution of an AHCD as a condition to providing services (Probate Code Section 5677).

In California, “A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate (Probate Code Section 4657)”. An adult resident at a SNF with capacity may appoint an agent, often a close family member or trusted friend, with representative authority, and express enforceable health care decisions using an Advanced Health Care Directive (“AHCD”) or a “Power of Attorney for Health Care” (“POAHC”).

The representative authority to make health care decisions for the resident may either be immediate or delayed. A resident with capacity will usually makes the AHCD immediate, both in anticipation of unforeseen health care crisis and so that the employees of the SNF may discuss the resident’s health care with the Agent. The AHCD will need to be supplemented by a Health Insurance Portability and Accountability Act (“HIPAA”) release to allow disclosure of confidential medical information.

If a SNF resident does not already have an AHCD or POAHC, with which the resident agrees, then the resident will typically want to execute a AHCD (present day approach). California law requires that execution of an AHCD by a SNF resident involve the protective oversight of an Ombudsman representative as a witness.

The Ombudsman will need to meet with the SNF resident, alone or with family if requested by the resident, to ensure that the resident has the capacity to sign the document. That is, does the resident understand, at the time of signing, that the AHCD is an important legal tool to express the resident’s preferences regarding health care and to appoint an agent as a health care decisionmaker. Also, the Ombudsman will want to ensure that the resident, at the time of signing, is acting voluntarily and not under duress, undue influence or menace. If the ombudsman is still uncertain as to the resident’s capacity to understand the AHCD, the ombudsman may look at the resident’s medical chart for further information before deciding.

Next, the signing of the prepared AHCD involves either one of two approaches, that is, either the notary public and an ombudsman approach, or, second, an ombudsman and an additional witness approach. Typically the first approach is used.

The additional witness to the AHCD (not the ombudsman) cannot be an employee of the SNF or the agent nominated in the AHCD. Moreover, the additional witness (that is, other than the ombudsman), “… shall be an individual who is neither related to the patient by blood, marriage, or adoption, nor entitled to any portion of the patient’s estate upon the patient’s death under a will existing when the advance directive is executed or by operation of law then existing.” That last restriction naturally favors hiring a travelling notary as most the people who would be willing to come to the SNF and be a witness are disqualified persons.

As a temporary or emergency (“stop gap”) measure, a resident with capacity may choose to nominate a “surrogate” health care decisionmaker. All this requires is that the resident personally inform the supervising health care provider or a designee of the SNF (section 4711 Probate Code). The surrogate’s authority does not exceed sixty (60) days but, while effective, the surrogate’s authority is the controlling authority, even over the authority of an agent under any existing AHCD.

The foregoing is not legal advice.  Consult a qualified estate planning attorney for guidance. Dennis A. Fordham, Attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.