Advance Directives American Judges Association Annual Meeting – Cleveland, OH September 12, 2017 Advance Directives Judge Patricia Banks, (ret.) Former presiding judge of the Elder Law and Miscellaneous remedies division of the circuit court of cook county

FUTURE OF THE COURTS GUARDIANSHIP/CONSERVATORSHIP Litigants/demographics Case Types Legislation Financial Institutions Resolutions-ABA and other Bar Associations Technological Advances SUPPORTIVE DECISION MAKING MODEL

TYPES OF ADVANCE DIRECTIVES Health Care Advance Directive (document)/Health Care Proxy/HPOA Power of Attorney/Durable Power of Attorney for property (PPOA) Supportive Decision Making agreements POLST/MOLST/POST “Physician Orders/Medical Orders for Life-Sustaining Treatment;” “Provider Orders for Scope of Treatment” Living Will

Retention of Individual Rights Supportive Decision Making Advance directives guardianships Least restrictive Retention of Individual Rights Supportive Decision Making Elder abuse Most restrictive Loss of Individual Rights Surrogate in charge Elder abuse

ADVANCE DIRECTIVE - HPOA Early selection of a health care proxy is the single most important decision you will make about your health care and that a litigant has to make for their loved-one Reduces the need for guardianships Lessens critical health decisions made by physicians and hospital ethics committee on your behalf Decreases family conflicts with reference to health care decisions on your behalf Prevents elder abuse

ADVANCE DIRECTIVE - HPOA Early and Often: Adhere to the 5 D’s – decade, death, divorce, diagnosis, decline Conversation with key persons about your health care proxy is crucial Healthcare practitioners, legal guardian, spouse, children/grandchildren, friend A proxy without corresponding conversation and reflection is not enough Full disclosure

ADVANCE DIRECTIVE - PPOA Property Power of Attorney (PPOA) Agent selected by the Principal manages fiduciary matters and personal property Principal may limit agent’s power or allow an agent additional powers Agent must act within scope of his authority Principal may revoke PPOA but must have capacity to do so Prevents elder abuse

ADVANCE DIRECTIVE - SDM Supportive Decision Making (SDM) “A person-centered planning process and a person-driven decision-making process that protects the fundamental human and Constitutional rights of the Person by always including the Person in the decision-making process.” (David Godfrey) Principles of SDM - concept shifts from surrogate to supporter In lieu of guardianship Least restrictive alternative Enhances case for restoration of rights’, petitions SDM agreements factored into court review and analysis

Legislation Enactment of laws creating additional advance directives Courts Financial Institutions Healthcare providers Default circumstances Other entities

RESOURCES ABA – Consumer Tool Kit For Health Care Advance Planning The Conversation Project Starter Kit https://www.americanbar. org/content/dam/aba/ad ministrative/law_aging/Hea lth_Decisions_Resources.aut hcheckdam.pdf

The time to repair the roof is when the sun is shining. President John F. Kennedy – State of the Union Address, January 11, 1962