MISSOURI HEALTH CARE UPDATE: "THE ADULT HEALTH CARE CONSENT ACT"
What if you become too ill or too hurt to express your wishes regarding your medical treatment?
There is a medical crisis in Missouri, and it goes something like this: everyone loves Grandpa Hank. For decades he has showered his family with love, wisdom and generosity, even more so after his wife had passed. But for whatever reason Grandpa Hank stopped taking his medication regularly and keeping up with doctor appointments. After several unsuccessful surgeries and adjustments to his medications, Grandpa Hank slipped into a permanent vegetative state. The immediate question confronting the doctors is how much of what type of treatment would Grandpa Hank consent to in this situation? He is unable to consent to his own medical treatment and he has no advance medical directive. Unfortunately, his children, siblings, friends and relatives fight over who knows exactly what Grandpa Hank would want. While the family dances on the razor's edge of end-of-life ethics, Grandpa Hank's doctors fulfill their obligation to keep him alive at all costs even if that means he is left to languish in respite care for months or years.
Missouri's medical crisis exists because the vast majority of us simply have not addressed the importance of making personal medical decisions in advance. No one likes to think about these things, and most people do nothing about it since they erroneously assume that their spouse or adult child will be able to consent to treatment on their behalf. The crisis is so common in Missouri that on December 19, 2011, Congressman Bill White (R-Joplin) introduced House Bill No. 1087 entitled the "Adult Health Care Consent Act" in an effort to resolve, at the very minimum, the consent quandary; that is, who is authorized to consent to medical treatment on behalf of an adult patient who is unable to consent for themselves. Under the proposed new law, "unable to consent" means the patient who is unable to appreciate the nature and implications of the patient's condition and proposed health care, to make a reasoned decision concerning the proposed health care, or to communicate that decision in a clear manner.
If adopted, Missouri will join many other states that have adopted similar legislation that prioritizes certain persons who can make health care decisions on behalf of an adult patient who is unable to consent in the following order:
- A court-appointed guardian (probate court);
- An attorney-in-fact appointed in a durable power of attorney;
- An individual appointed by State law;
- A spouse, unless the spouse and the patient are separated or have a divorce pending;
- A parent or adult child;
- An adult sibling, grandparent, or adult grandchild;
- Any other relative by blood or marriage who has a close personal relationship with the patient;
- Any non-relative who reasonably is believed by the health care professional to have a close personal relationship with the patient (typically a long-time friend or neighbor); or
- A person given authority to make health care decisions for the patient by another statutory provision.
PLEASE NOTE THE VERY IMPORTANT ORDER OF THE FIRST THREE PRIORITIES: FIRST THE COURT, THEN YOU IF YOU IF YOU HAVE A DURABLE POWER OF ATTORNEY, AND THEN THE STATE.
This means that if you do not have a durable power of attorney that your spouse will likely have to petition the probate court to gain decision-making authority. The Adult Health Care Consent Act does not prohibit anyone from petitioning the probate court for an order for health care to be provided or to appoint a guardian for the patient. This includes your spouse, but why put them through that process which is much more expensive than addressing it now. The proposed law contains provisions to assure that health care is provided to the patient in the event of a dispute between people of equal decision-making authority. People of equal decision-making authority can mean your spouse and your adult child depending on how the durable power of attorney is worded.
It is so important to create a proper durable power of attorney for health care while you can do some soul-searching and talk to your spouse, children, relatives, or clergy and make decisions that line up with your own values and beliefs. An advance health care directive is a legal document to guide health care decisions in anticipation of the possibility that one day you may be unable to decide for yourself, and it goes into effect only when you are unable to consent. In some states, family members are expressly designated in order of kinship to make some or all health care decisions for someone who does not have an advance directive. Currently Missouri is not one of them.
Something must be done about the crisis, so the Adult Health Care Consent Act will most likely become law. Now is the time to take control of your future and protect your rights without costly court proceedings. The compassionate and caring Estate Planning Team at Smith Montgomery will meet with you and present you with legal options that fit your individual needs and preferences at a price you can afford. These are weighty decisions that should be made with the guidance of an informed attorney.
If you are ready to begin, call Smith Montgomery at (417) 881-9000 to make an appointment for your free first visit. You can make your own appointment by using the Contact Form on our website. Just click to select a date and time that is convenient for you. Morning, afternoon and lunchtime appointments are available. Same day and next day appointments are no problem. Our automated appointments system means you don't have to wait for our office to open. You will receive an instant email confirmation of your appointment date and time. Start feeling better by turning over your legal matter to an experienced lawyer who wants to help you.
This article discusses estate planning in general terms only, and nothing in this article should be considered as legal advice. No attorney can guarantee the outcome of a case; however, if you have a legal problem, please take advantage of a free visit to review your situation. For decades Smith Montgomery has helped over 8,000 clients in Southwest Missouri make informed decisions about their finances. If you need help deciding, visit the Client Reviews page on our website and see what our satisfied clients are saying about our bankruptcy and debt planning services.