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Q&A: Legal Issues of Patient Advocate Designation

February 9th, 2011 | Posted in Professional Skills
Legal expert Jamie Verdi discusses patient competency, the role of a surrogate and the tools patient advocates need to protect themselves and their patients. Verdi is founder of the Michigan Patient Advocacy Liaison (MI-PAL).

PPAI: When it comes to patient competency, what should a patient advocate be aware of?
Jamie Verdi: Almost every patient advocate will encounter a patient whose mental capacity to make his or her own medical decisions is impaired. When this occurs, questions often arise about whether the patient is legally incompetent and who should make the patient’s medical decisions. These scenarios may lead to life-altering decisions that can harm family relationships and cause unnecessary patient stress. For example, a family member may want to discontinue life-sustaining treatment while other family members may disagree. These types of scenarios must be addressed early to prevent ongoing family stress.
PPAI: What is a ‘Patient Advocate Designation’ form?
JV: A “Patient Advocate” form is a tool commonly used to designate a surrogate decision maker in the event of a patient’s incapacity. In order to be valid, a patient advocate designation must be signed by a mentally competent patient. Each state has different requirements for executing a valid patient advocate form. Some states require the document to be notarized and some simply require the presence of two witnesses who are not the patient’s relative or an employee of a treating health facility.
If the patient advocate designation appears to be proper and there is no dispute that the patient cannot make his or her medical decisions, medical treaters must follow the directions of the patient advocate.
PPAI: What happens if there is a question regarding the validity of the ‘Patient Advocate’ form?
JV: If family, friends or the patient disputes the patient’s competency or patient advocate designation does not appear to be valid (for example, because a witness improperly dated the form), a probate judge generally decides who, if anyone, should act for the patient.
The probate court process is different from other legal proceedings because most people that appear in probate court do so in pro per, which means that they are not represented by an attorney. When a dispute arises about whether a patient is competent or who should act for the patient, a petition must generally be filed in the probate court in the county where the patient is located. This process varies among different states.
PPAI: What is a Petition for Guardianship?
JV: If a patient advocate form was not executed or is determined by a judge to be invalid, a petition for guardianship generally must be filed. A petition for guardianship is necessary when the patient lacks sufficient understanding or capacity to make or communicate informed decisions about his or her personal well being because of impairment by reason of either: mental illness; mental deficiency; physical illness; physical disability; chronic use of drugs; or chronic intoxication.
PPAI: What can go wrong if family members agree on a course of treatment?
JV: A recent guardianship proceeding occurred where problems unfortunately arose. In this case, a patient became incompetent. He had previously executed a patient advocate form designating his wife, but there was a discrepancy with a witness signature. The matter came to probate court when the wife filed a petition for guardianship. Once the petition was filed, a guardian ad litem was appointed and recommended the appointment of a professional guardian even though the patient’s wife and sister were willing to serve as the guardian.
Unfortunately, the probate judge followed this recommendation and appointed a professional guardian before making any determination of whether the patient’s wife or other family members were suitable to serve as guardian. The professional guardian then banned all visitation by the family and removed the patient from the care of his long-term treating physician. As could be expected, this led to chaos. Another family member subsequently filed a petition to be named as guardian, but the judge refused to change his original ruling. The patient’s family was refused visitation in several months leading up to the patient’s death.
PPAI: What can Patient Advocates do to prevent this type of situation?
JV: Patient advocates need to understand their State’s process for designating surrogate decision makers in the event of mental incapacity. Patient advocate forms must be properly executed and family members should be involved in the process to make sure everyone involved is aware of the patient’s wishes for ongoing treatment and, if necessary, end of life decisions.

Jamie Verdi is Michigan Patient Advocacy Liaison’s (MI-PAL’s) principal. She is an attorney with an advanced healthcare law degree. Verdi is on the advisory board of PPAI.