Photo: Group Think in Healthcare Decision Making. Source: Austrian National Library

Sam from law school flew in from Tucson with his N95 Mask in hand to visit his Aunt Tilda in the hospital. Sam asked me to prepare a healthcare power of attorney (POA) and a financial POA for Aunt Tilda to sign on his arrival. I told Sam it would be no problem, but since talking with him two days ago, Aunt Tilda’s condition has declined. She is now on a ventilator and improving, but no one is sure what will happen next. To manage Aunt Tilda’s comfort, the doctors are keeping her sedated.

An individual cannot sign a legal document if they do not understand what they are signing – it is known as “informed decision making or consent.” Capacity forms the basis of informed consent.
So, with Sam’s arrival and remembering our story from last week, determining capacity is step one and key as to the next steps.

What is medical capacity?
Like many things in life, there is no one-size-fits-all answer here. “Capacity” in healthcare is about medical decision-making and an individual being able to understand the situation and choices to be made, and then make an informed decision. For example, understanding the benefits and risks of a treatment or procedure before saying yes or no to receiving it. The four key components for a clinician to determine medical capacity are:

• Communicating a choice
• Understanding
• Appreciation
• Rationalization/reasoning

There are differences and nuances between medical capacity and legal competence. The main differences are that medical capacity is determined by a physician and is a functional assessment, while legal competence is a global assessment made by a judge in court.

Aunt Tilda is currently sedated and on a ventilator, therefore she likely does not currently have the capacity to make a healthcare decision. The hope is that she has previously discussed and expressed her wishes to both her doctors and to her family, and ideally, signed a healthcare POA authorizing an agent (surrogate) to act on her behalf.

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My phone started ringing just as I unlocked my office door.

The call was from Sam, a friend I met in law school. After earning his J.D., Sam chose to stay in Arizona to practice law while I somehow made my way to Maine and, ultimately, to a small mid-central community to build an Elder Law practice. After all, with a nursing background, 20+ years advising healthcare organizations, some guardianship work, and running a small, family-owned business, I was sure I had all the tools I needed!

Sam’s Aunt Tilda was living in Belfast, Maine, and had just been admitted two days ago to the local hospital with shortness of breath, a slight fever, and a vague sense of not feeling well. The results of a COVID test were pending, but she was admitted and, up until very recently, resting comfortably. Late the night before, her shortness of breath had increased, her fever was up, and, according to the doctor, there were some “troublesome areas” on her chest x-ray.

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Blog Author: Claudia Raessler
The Situation!

You are a small business, you have survived the first 90 days of COVID, re-opened your doors, cash is tight or frankly, non-existent. To make it even worse……there are checklists to follow to stay open, employees and customers to worry about, and, oh by the way – I just cancelled my family summer vacation where once a year 15 to 20 of us hang out at one of those beautiful Maine lakes.

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Author: Claudia Raessler, Esq.

1. Today’s Objectives – “in the weeds” about OAs

In November we continued the story of Jackie and Camille, partners in a small manufacturing company facing a cash flow crisis. One of the key points discussed in the case study – LLC Operating Agreements, the “rule of the road” signed at formation.
I typically discuss with clients that an Operating Agreement (“OA”) is a contract by law and represent the rules of the road used to establish the Company culture and lay the foundation for running the business. Sounds simple – right? Pull a form from on-line, have a quick discussion (after all we are “partners” and we should be able to agree!) and then get to work building a business and making money. Although we have yet to see how Jackie and Camille are going to solve their cash flow problem, in the meantime here is hoping their OA met some of the basic objectives when the yellow brick road gets “bumpy”.

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Author: Claudia Raessler, Esq.

In September, we began the story of a small manufacturing company (“SME”) facing a crisis in cash flow. To continue the story, let’s get to know Jackie and Camile, whose dream started them down their yellow brick road.

Six years ago, these two college friends had professional careers in other sectors, yet they decided to take a risk and start a small textile business. Although friends since college, over the last 15 years, they have led very separate lives, and although they now share a common vision, over the years they have developed very different leadership and decision-making styles. This will become important as our story unfolds.

First, the big picture and small U.S. business

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Author: Claudia Raessler, Esq.

Recently, I read an article highlighting the 7 reasons lawyers are “hated”.[1] The reasons ranged from those unexplained high fees to the “long-winded narrative ensuring every risk is covered” so the client cannot say – “you didn’t tell me”. A discussion involving (1) choice of legal entity; (2) why do I need to form an “entity”; and (3) how do I navigate the governance and operational issues is likely one of the very first experiences a client faces in dealing with their lawyer and will “trigger” the hate emotion – especially in a small business setting.

For the next few weeks we are going to tell the story of the speed bumps encountered by a small business starting with a “closure” in a series called “Stories of Small Business Speed Bumps”. .We hope the series provides value and yet avoids the need for a reader to check off one of the 7 boxes supporting Shakespeare’s conclusion – “let’s kill all the lawyers”.

The caveat, the objective of thisBlog isnotto provide a small treatise discussion as to every nuance of a specific area of law. Rather the goal is to highlight a story or event that requires the coordination of legal and operational thinking to survive the “speed bump”. The stories are “fictional’ and should not be assumed to provide legal advice involving a specific matter.

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