Legal-Ease: Incapacitated — to do what?
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When you become an adult, for the first time in your life society bestows upon you the adult capacity to run your own affairs and make your own decisions. In our society, your adult right to make your own decisions is a sacred right that cannot be lost nor taken away from you easily.
Normally, once you are an adult there are only two ways to lose the privileges that come with adulthood: being convicted and incarcerated for committing a crime (failing to conform yourself to the minimum behavior expected by society) or after a Court having proper authority holds a full and complete hearing and from the evidence concludes that your ability to run your own affairs and make your own decisions has deteriorated to the point where, for your own protection, the court must strip you of your adult rights, reduce you to a childlike legal status, and give your adult rights to a court-designated guardian and/or conservator to manage for you.
In real life, society's high standard that each adult can make his own decisions sometimes collides with reality. For example, when you need medical care but are too unconscious or sick to tell the doctor what care you want, how can somebody else gain authority to tell your doctor how you would or would not want treated?
The legal system is slow and deliberate, while medical decisions and treatment often must be made and done quickly.
Most state legislatures have addressed this issue and, to deal with it, have created a small exception to the rule that once you are an adult, only you are the captain of your life with power to authorize others, including doctors, to do to or for you.
West Virginia's law creating this exception is in West Virginia Code Chapter 16. It empowers your attending doctor or other health care practitioner, upon deciding that you are too sick at that time to make your own health care decisions, to authorize select others to make health care decisions for you. If you previously signed a Medical Power of Attorney, the doctor's finding that you lack capacity to make your own medical decisions, activates the power you gave to your Medical Representative in your Medical Power of Attorney to tell the doctor how to treat you. If you had not signed a Medical Power of Attorney, your doctor also may designate, from a sensible list of people, starting with your closest relatives, a "medical surrogate" to make your medical decisions. So, far, all of this is good, as it makes it possible for you to receive medical care promptly, even if you are too sick to give permission.
However, whenever law and medicine connect, there frequently is friction and misunderstanding, and this situation is no exception.
Many medical personnel and providers mistakenly think that when your doctor says that you are incapable to make your own medical decisions, that you also become incapacitated to make non-medical decisions in your life, such as signing a Will or financial Power of Attorney. This simply is not true. The state law defines the doctor's decision that you are incapable of making medical decisions this way: "'Incapacity' means the inability because of physical or mental impairment to appreciate the nature and implications of a health care decision, to make an informed choice regarding the alternatives presented, and to communicate that choice in an unambiguous manner."
In short, when your doctor says you lack capacity, you lack capacity only to make your own medical decisions. The exception given to doctors is limited strictly to the making of health care decisions, not other types of decisions.
Naturally, if a later lawsuit challenged whether you were capable of making other types of decisions when you made them, the doctor's opinion that at the time you could not make medical decisions likely would be a significant piece of evidence. However, the doctor's decision that you are not able to make medical decisions does not take away your adult right to make other decisions about your affairs at the time.
In my elder law practice we frequently meet with clients when they are in the hospital or nursing home to help them get their affairs in order, which often includes their signing other legal documents. Unfortunately, on a few occasions we have been confronted by hospital or nursing home employees claiming that, because the patient's doctor said at the time the patient was admitted that he couldn't make medical decisions, that the patient is incompetent to sign the documents we prepared. That simply is not the law and I want you to be aware of it before you or a loved one wind up in that situation. The question is not "are you incapacitated?" The question is "what are you incapacitated from doing?" When it comes to doctors, their opinions relate only to the making of health care decisions, not other decisions in your life.
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Gerald W. Townsend is a partner in the law firm of Fluharty and Townsend, with offices in Parkersburg and Williamstown. His practice focuses upon elder law, meeting the legal needs of seniors in West Virginia, with special emphasis upon Medicaid planning. He welcomes West Virginia clients with elder law concerns, either by direct appointment or by referral from other professionals. He can be reached at jtownsend@fntlawoffices.com.