Consent for Care and Services Alternatives for People with Disabilities

By Attorney Franklin J. Hickman

Everyone seeking health care and services in today’s world is faced with an array of forms which require informed consent. People with disabilities are often told they will need a guardian in order to get the care or services.  This summary examines four alternatives which allow an individual with disabilities to provide legally recognized consent without the need for guardianship.

Durable General Power of Attorney
A durable general power of attorney allows a competent individual to grant an agent or co-agents the authority to act on their behalf which then continues even if the individual later becomes incapacitated. Powers of attorney are flexible and can be tailored to meet specific situations, such as agreement for medical care, or can authorize the agent to act in a broad range of situations. General powers of attorney in Ohio are governed by the Ohio Rev. Code starting at §1337.21.

General powers of attorney must be used carefully and only given to persons who are trustworthy. Powers of attorney can be revoked by the person who signed them at any time.

To properly execute a durable general power of attorney in the state of Ohio, an individual must sign or if unable to sign have another sign on their behalf in their “conscious presence” a power of attorney, and should do so in front of a notary public. Ohio Rev. Code § 1337.25. Additionally, the agent must accept the appointment which is usually done by taking some action on behalf of the principal. Ohio Rev. Code § 1337.33.

A durable power of attorney will not be terminated solely because a guardian has been assigned to the same individual. Ohio Rev. Code § 1337.28. Similarly, if there is a pre-existing power of attorney, that power of attorney will not be terminated by the later executed power of attorney unless it specifically revokes the pre-existing power of attorney. Ohio Rev. Code § 1337.30.

Pros:    Simple to draft

            Easily revoked

            No court oversight

            Low cost

            Can avoid need for guardian

Cons:   Do-it-yourself documents may be improper

           No court oversight – can be easily abused

           Can be revoked without oversight

           Difficult to obtain adequate accounting of activity


Durable Power of Attorney for Health Care
A durable power of attorney for health care allows a competent individual to grant an agent the authority to make health care decisions on their behalf once they are unable to decide for themselves. Requirements for health care powers of attorney start at Ohio Rev. Code §1337.11.

The ability of the person holding the durable power of attorney for health care to make decisions regarding life-sustaining treatment, comfort care, provision of care to a pregnant individual, “the provision of nutrition or hydration” and “withdraw[ing] informed consent to any health care to which the [individual] previously consented” are limited to specific circumstances. Id.

A durable power of attorney for health care must be signed, dated, and either (1) witnessed by two adults that are not (a) related to the individual, (b) the person in receipt of the durable power of attorney for health care, (c) the individual’s attending physician, or (d) the nursing home administrator, if the individual is in a nursing home, or (2) notarized by a notary public. Depending on the other forms of declarations or directives an individual may have, the durable power of attorney for health care may supersede, or be superseded by other documents.

A durable power of attorney for health care may be revoked at any time and in any manner.

Pros:    Accepted form is available on-line

           Easily revoked

           Practical alternative to guardianship

Cons:   None, really – everyone should have one


Designation of Representative by Person with Developmental Disabilities
Recent legislation allows an individual with a developmental disability to authorize an adult to make decisions on the individual’s behalf which relate to receipt of a service or participation in programs offered by County Boards of Developmental Disabilities. The authorization must be in writing, and the designated adult cannot have any financial interest in the decision, but there are no other formal requirements. Ohio Rev. Code §5126.043 applies to these authorizations.

Pros:    Simple to draft

           May provide practical alternative to guardianship

Con:    Limited to services provided by DD Board

           May not be recognized by non-DD Board professionals

           No oversight


Declaration for Mental Health Treatment
Declarations for Mental Health Treatment allow individuals to express their wishes with regard to mental health treatment should they lose the capacity to make those decisions for themselves. The governing statutes start at Ohio Rev. Code § 2135.01. These types of declarations allow an individual to list persons to serve as a “proxy” or “alternate proxy” to make decisions regarding mental health treatment on their behalf.   Unless a proxy is related to the declarant, a proxy may not be a treatment provider. Physicians may only act against the declaration if the declarant has been involuntarily committed, or in an emergency situation .

To execute a declaration for mental health treatment, an individual must have the execution witnessed by two individuals who are not providers or have the declaration notarized by a notary public. Additionally, if a proxy or alternate proxy is named, those individuals must also sign and have their signatures witnessed or notarized like that of the declarant.  

Declarations are valid for a period of three years, unless the declaration becomes operative or is revoked. Once a declaration has been executed, it becomes operative when it is “communicated to [the declarant’s] mental health treatment provider” and the declarant loses the capacity “to consent to mental health treatment decisions.” Once the declaration becomes operative, it continues until the declarant regains capacity to make mental health treatment decisions.  

Individuals may revoke a declaration for mental health treatment by a signed and dated writing, and communicating that writing to their physician and facility providers of mental health treatment. The individual must have capacity to consent to medical care at the time of revocation. If the declaration is operative, it cannot be revoked unless the designated physician or a psychiatrist, and one other mental health treatment provider, have examined the declarant and determined that the declarant has the capacity to consent to mental health treatment decisions.

Pros:    Correct forms available on-line

           May provide practical alternative to guardianship for mental health decisions

           Can only be revoked if the individual is competent to do so and has been evaluated by at least two professionals

           Preserves individual decision-making when individual has capacity to consent

Con:    Not widely recognized by mental health professionals


Posted in Articles, Articles: Adults with Disabilities.