CALA News & Views | Issue 49 | Top 5

Assisted Living providers always look first to the resident to make decisions about his or her care and living conditions in a community. In some circumstances, however, providers may need to deal with family members, friends and others who maintain that they have authority to participate in, or even to direct, decisions affecting the resident. Such individuals are seeking recognition as “surrogate decision makers” who can act on the resident’s behalf. However, not everyone who claims this status may have legal authority to do so. In determining legal authority, providers should keep five things in mind.

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There are several types of surrogate decision makers who have formal legal authority to act on a resident’s behalf.

X Surrogate decision makers with formal legal authority over property are: • Agent under power of attorney for property – where principal is competent; this authority ends on the principal’s death. • Agent under durable power of attorney for property – where the principal is unable to manage financial affairs. • Conservator of the estate – where principal has been adjudicated to be unable to manage financial affairs; requires court

document titled “letters of conservatorship” giving conservator jurisdiction over property. X Surrogate decision makers with formal legal authority over health care decisions are:

Depending on the circumstances, other persons can act as a resident’s surrogate decision maker. • Conservator of the person – where principal has been adjudicated to be unable to make health care decisions; requires court document titled “letters of conservatorship” giving conservator jurisdiction over named health and personal decisions. • Agent under an advance health care directive – includes authority not only to make health care decisions, but also to determine where the principal will live and to make other personal decisions such as hiring private care givers, handling mail and arranging recreation and entertainment. 01 02 X The RCFE regulations recognize the role of a resident’s “representative” to assist with routine matters involving the resident, such as participating in the move-in process, establishing a plan of care, and articulating the resident’s preferences with regard to daily activities. This may include the resident's spouse, registered domestic partner, family member or a person designated by the resident. X In addition, the RCFE regulations recognize “health care surrogate decision makers” who can act on behalf of the resident in the absence of a formal appointment by virtue of a relationship with the resident (e.g., the resident's next of kin). 03 It is not necessary to have the original signed version of a surrogate decision maker document. X A copy of the surrogate decision-maker document is sufficient if it is in proper form and includes all of the legally required attachments such as witness declarations for advance health care directives. X In addition, surrogate decision making documents can be signed electronically, using a recognized electronic signature software program.

CALA NEWS & VIEWS I ISSUE 49 | MARCH 2024

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