Obtaining Proof of Decision-Making Authority

OBJECTIVES At the end of this presentation employees should know: How to determine who has decision-making authority for a client. Who to contact for assistance with decision-making authority issues. What documentation is needed to show proof of decision-making authority. When to obtain necessary documentation. Why documentation is necessary.

Proof of decision-making authority required by law 33-3-102. Specific rights protected. (b) No person shall make decisions for a service recipient on the basis of a claim to be the service recipient's conservator, legal guardian, guardian ad litem, caregiver under title 34, chapter 6, part 3, or to be acting under a durable Power of Attorney for Healthcare under title 34, chapter 6, part 2, until the person has presented written evidence of the person's status.

Who Can Make Decisions for a Client Persons who may consent to disclosure of confidential information under Tennessee Code Annotated 33-3-104 include: The service recipient who is 16 year of age or over; The conservator of the service recipient The attorney in fact under a Power of Attorney* The parent, legal guardian, or legal custodian of a service recipient who is a child The service recipient’s guardian ad litem for the purpose of the litigation in which the guardian ad litem serves The caregiver under Title 34, Chapter 6, Part 3 An individual acting as an agent under the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18 or a person's surrogate as designated under title 68, chapter 11, part 18.

Parents Married to Each Other Authority If the parents of a child are married to each other, both have equal decision-making authority for the child. Documentation Needed Birth Certificate Identification Challenges Provision of services when one parent opposes treatment.

Parents Married to Each Other

Divorced Parents Authority Documentation The decision-making authority of divorced parents varies dependent on several circumstances In most cases divorced parents have joint decision-making authority for non-emergency medical and psychiatric care; however, this can vary from case to case. Proper documentation is very important to determine who may consent for treatment. Documentation Divorce decree and/or parenting plan.

Divorced Parents (2) Challenges Procedure In many cases, both parents may be able to consent for treatment. Providing treatment can be a major challenge when parents disagree about the need for treatment. Procedure 1. Confirm that parents are divorced. 2. Obtain divorce decree and/or parenting plan. 3. Determine the authority of each parent based on the divorce decree or parenting plan. 4. Allow the appropriate parent to consent for treatment.

Divorced Parents (3)

Authority of Parents-Never Married To Each Other TCA 36-3-303 states, “Absent an order of custody to the contrary, custody of a child born out of wedlock is with the mother.” Authority Mother A mother who was never married to the child’s father has both physical and legal custody of the child unless the father has a court order stating otherwise Father A father who has never been married to the child’s mother does not have legal custody unless a court order signed by a judge shows otherwise. Documentation Needed A mother who has never been married to the child’s father should provide a copy of the child’s birth certificate and her identification to show proof of custody. A father who has never been married to the child’s mother must provide a court order to show proof of custody.

Authority of Parents-Never Married to Each Other(2) Challenges Unmarried fathers are often unaware of the need for a court order to prove custody. Procedure 1. Determine that parents were never married to each other 2. If the child’s mother wishes to consent for treatment, obtain the following unless there is a court orders otherwise: Obtain Child’s Birth Certificate Obtain Mother’s Identification 3. If the child’s father wishes to consent for treatment, obtain the following: Obtain a court order giving father the authority to consent for child’s treatment. Obtain Father’s Identification

Authority of Parents-Never Married to Each Other(3)

Authority of Legal Guardians Legal guardians are appointed by the court via court order. Authority Legal guardians generally have the right to make decisions for a child including those involving treatment. Challenges/Special Note Parents cannot appoint other individuals to be legal guardians of their child. Only the court can appoint a legal guardian. Procedure Once the individual confirms that he/she is the legal guardian obtain the following: Court order appointing individual as legal guardian Individuals’ Identification

Authority of Legal Guardians (2)

Authority of Adoptive Parents Adoptive parents have the same decision-making authority as any other parent. Adoption documents clearly delineate these rights. Procedure/Documentation needed When individuals reveal that they have adopted a child for which they are seeking services, obtain the following: Adoption Orders Birth Certificate Parents’ Identification

Caregivers for Minors Parents and legal guardians who have the authority to do so may appoint a caregiver for their children with a Power of Attorney (POA) for Care of a Minor. Authority Caregivers have the authority to make decisions for the child as outlined in the POA for Care of a Minor Caregivers are not legal guardians The parent or legal guardian who appoints the caregiver maintains the right to make decisions for the child and can override the decision of the caregiver by revoking the POA. Challenges Obtaining properly completed POA documents as well as necessary court order, divorce decrees, and parenting plans necessary to show parent or legal guardian’s authority to appoint caregiver.

Caregivers for Minors (2) Procedure Individual notifies clinic staff that he/she has the authority to make treatment decisions for a minor under 16 years old, based on his/her appointment as caregiver via a Power of Attorney (POA) for care of a minor child. Clinic staff will obtain a copy of the POA from the individual. Clinic staff will forward the POA to Health Information Management (HIM). HIM staff will review the document to determine whether it complies with TCA Title 34 Chapter 6,Part 3. HIM will review the document to determine whether it gives the individual the authority to make treatment decisions for the client. The POA will be sent to Centerstone attorneys for review as necessary. HIM staff will notify Clinic staff as to whether the POA gives the individual authority to make treatment decisions for the client. If the POA gives the caregiver authority to make treatment decisions for the client, the caregiver will consent for treatment and authorize release of the client’s records. If the POA does not give the caregiver authority to make treatment decisions for the client, the caregiver will not be allowed to consent for treatment or authorize release of records

Caregivers for Minors (3)

Attorney-In-Fact Appointment Adults often appoint an attorney-in-fact with a general Power of Attorney (POA) or Healthcare Power of attorney (HPOA). Authority An attorney-in-fact can make decisions for an adult as specified in the POA document Documentation HPOA for Adults which complies with Title 34 Chapter 6 Part 2 (as required by 33-3-102). Documentation showing that client lacks capacity to make treatment decisions. Unless this documentation is provided client maintains right to make decisions under Title 33 and TCA 34-6-205 Challenges The general and healthcare POA documents cannot be used to appoint a caregiver for a minor. Caregivers must be appointed with a POA for Care of a Minor.

Attorney-In-Fact Appointment (2)

Guardian Ad Litem A guardian ad litem is appointed by the court as an advocate for the best interest of the child Authority TCA 33-3-104 list the individuals who may provide consent including “The service recipient’s guardian ad litem for the purpose of the litigation in which the guardian ad litem serves.” The guardian ad litem can authorize disclosure of a child’s records if the purpose is litigation.

Conservator appointment for adults A court may appoint a conservator for an adult if the adult is found to be unable to make decisions regarding his/her estate or medical treatment. Authority A conservator can make decisions for an adult as specified in the court order appointing the individual to make decisions for the client. Documentation Conservators are appointed as specified in Title 34 Chapter 3. Conservatorship can be limited as specified under 34-3-107 (e.g. some conservators only have authority to make financial decisions for the client). Challenges Some letters of conservatorship are not very specific, requiring that the court order be provided instead. In most cases, once the court order is presented, they are usually few issues unless the order is not signed by a judge.

Conservator appointment for adults (2) Individuals may present with a letter of conservatorship which should be signed by a court clerk. If the letter of conservatorship states that the conservator has authority over the client’s estate and person and does not indicate that the authority is limited, the document can be accepted as proof of conservatorship. If the letter does not state that the individual has authority over “estate and person” or if limited authority is implied, the court order should be obtained.

Conservator appointment for adults (3) Court order appointing conservators generally provide all the documentation needed for the conservator to consent for the client’s treatment unless the order indicates that the authority does not include medical treatment decisions.

Conservator appointment for adults (3)

Surrogates Under Tennessee Code Annotated 33-3-104, an individual acting as an agent under the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18 or a person's surrogate as designated under title 68, chapter 11, part 18. The individual also has decision-making authority under title 68, which applies to mental health services. Previously, surrogates were appointed only for clients who are developmentally disabled. The Tennessee Health Care Decisions Act now allows surrogacy appointment for client with mental illness.

Surrogacy Appointment under TCA 68-11-1806 An adult or emancipated minor may designate any individual to act as surrogate by personally informing the supervising health care provider. The designation may be oral or written. In the case of a patient who lacks capacity, has not appointed an agent, has not designated a surrogate, and does not have a guardian…., the patient’s surrogate shall be identified by the supervising health care provider and documented in the current clinical record of the institution or institutions at which the patient is then receiving health care.

Surrogacy Appointment under TCA 68-11-1806 (2) The patient’s surrogate shall be an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s personal values, who is reasonably available, and who is willing to serve. No person who is the subject of a protective order or other court order that directs that person to avoid contact with the patient shall be eligible to serve as the patient’s surrogate. Consideration may be given in order of descending preference for service as a surrogate: A)patient’s spouse; B) patient’s adult child; C) patient’s parent; D)patient’s adult sibling; E) any other relative or F) any other adult who has exhibited special care and concern for the patient, who is familiar with the patient’s personal values, who is reasonably available, and who is willing to serve.

Additional Information for Consideration Legal documents showing decision-making authority should be forwarded to HIM for review. HIM will review documents and provide feedback regarding needed documents and legal risks with proceeding with services/treatment. The decision to provide services/treatment is made by clinical staff. HIM will not provide advice as to whether services/treatment should be provided.

Additional Information for Consideration (2) Required legal documents will be necessary to disclose the client’s record information even if services/treatment is provided without those documents.

Resources Obtaining Proof of Decision-Making Authority Policy which is located on the Source in the Privacy and Security Policy section Carol Draper, Director of Health Information Management Phone: (615) 279-8832 Rose Holt, Release of Information Manager Phone: (615)279-8823 Scott Valentine, Privacy Officer for Tennessee Phone: (615)279-8824