Current through Register Vol. 41, No. 3, September 23, 2024
A. When
it is determined in accordance with
12VAC35-115-145 that an individual
lacks the capacity to consent or authorize the disclosure of information, the
provider shall recognize and obtain consent or authorization for those
decisions for which the individual lacks capacity from the following if
available:
1. An attorney-in-fact who is
currently empowered to consent or authorize the disclosure under the terms of a
durable power of attorney;
2. A
health care agent appointed by the individual under an advance directive or
power of attorney in accordance with the laws of Virginia; or
3. A legal guardian of the individual, or if
the individual is a minor, a parent with legal custody of the minor or other
person authorized to consent to treatment pursuant to § 54.1-2969A of the
Code of Virginia.
B. If
an attorney-in-fact, health care agent or legal guardian is not available, the
director shall designate a substitute decision maker as authorized
representative in the following order of priority:
1. The individual's family member. In
designating a family member, the director shall honor the individual's
preference unless doing so is clinically contraindicated.
a. If the director does not appoint the
family member chosen by the individual, the individual shall be told of the
reasons for the decision and information about how to request LHRC review
according to
12VAC35-115-200.
b. If the individual does not have a
preference or if the director does not honor the individual's preference in
accordance with these regulations, the director shall select the best qualified
person, if available, according to the following order of priority unless, from
all information available to the director, another person in a lower priority
is clearly better qualified.
(1) A
spouse;
(2) An adult
child;
(3) A parent;
(4) An adult brother or sister; or
(5) Any other relative of the
individual.
2. Next friend of the individual. If no other
person specified above is available and willing to serve as authorized
representative, a provider may designate a next friend of the individual, after
a review and finding by the LHRC that the proposed next friend has, for a
period of six months within two years prior to the designation either:
a. Shared a residence with the individual;
or
b. Had regular contact or
communication with the individual and provided significant emotional, personal,
financial, spiritual, psychological, or other support and assistance to the
individual.
3. In
addition to the conditions set forth in subdivision 2 of this subsection, the
individual must have no objection to the proposed next friend being designated
as the authorized representative.
4. The person designated as next friend also
shall:
a. Personally appear before the LHRC,
unless the LHRC has waived the personal appearance; and
b. Agree to accept these responsibilities and
act in the individual's best interest and in accordance with the individual's
preferences, if known.
5. The LHRC shall have the discretion to
waive a personal appearance by the proposed next friend and to allow that
person to appear before it by telephone, video, or other electronic means of
communication as the LHRC may deem appropriate under the circumstances. Waiving
the personal appearance of the proposed next friend should be done in very
limited circumstances.
6. If, after
designation of a next friend, an appropriate family member becomes available to
serve as authorized representative, the director shall replace the next friend
with the family member.
C. No director, employee, or agent of a
provider may serve as an authorized representative for any individual receiving
services delivered by that provider unless the authorized representative is a
relative or the legal guardian When a provider, or the director, an employee,
or agent of the provider is also the individual's guardian, the provider shall
assure that the individual's preferences are included in the services plan and
that the individual can make complaints about any aspect of the services he
receives.
D. The provider shall
document the recognition or designation of an authorized representative in the
individual's services record, including evidence of consultation with the
individual about his preference, copies of applicable legal documents such as
the durable power of attorney, advance directive, or guardianship order, names
and contact information for family members, and, when there is more than one
potential family member available for designation as authorized representative,
the rationale for the designation of the particular family member as the
authorized representative.
E. If a
provider documents that the individual lacks capacity to consent and no person
is available or willing to act as an authorized representative, the provider
shall:
1. Attempt to identify a suitable
person who would be willing to serve as guardian and ask the court to appoint
that person to provide consent or authorization; or
2. Ask a court to authorize treatment (See
§ 37.2-1101 of the Code of Virginia).
F. Court orders authorizing treatment shall
not be viewed as substituting or eliminating the need for an authorized
representative.
1. Providers shall review the
need for court-ordered treatment and determine the availability of and seek an
authorized representative whenever the individual's condition warrants, the
individual requests such a review, or at least every six months except for
individuals receiving acute inpatient treatment.
2. Providers of acute inpatient services
shall review the need for court-ordered treatment and determine the
availability of and seek an authorized representative whenever the individual's
condition warrants or at least at every treatment team meeting. All such
reviews shall be documented in the individual's services record and
communicated to the individual.
3.
When the provider recognizes or designates an authorized representative, the
provider shall notify the court that its order is no longer needed and shall
immediately suspend its use of the court order.
G. Conditions for removal of an authorized
representative. Whenever an individual has regained capacity to consent as
indicated by a capacity evaluation or clinical determination, the director
shall immediately remove any authorized representative designated pursuant to
subdivision B 1 or 2 of this section, notify the individual and the authorized
representative, and ensure that the services record reflects that the
individual is capable of making his own decisions. Whenever an individual with
an authorized representative who is his legal guardian has regained his
capacity to give informed consent, the director may use the applicable
statutory provisions to remove the authorized representative. (See §
64.2-2012 of the Code of Virginia.) If powers of attorney and health care
agents' powers do not cease of their own accord when a clinician has determined
that the individual is no longer incapacitated, the director shall seek the
consent of the individual and remove the person as authorized representative.
1. The director shall remove the authorized
representative designated pursuant to subdivision B 1 or 2 of this section if
the authorized representative becomes unavailable, unwilling, or unqualified to
serve. The individual or the advocate may request the LHRC to review the
director's decision to remove an authorized representative under the procedures
set out at
12VAC35-115-180, and the LHRC may
reinstate the authorized representative if it determines that the director's
action was unjustified.
2. Prior to
any removal under this authority, the director shall notify the individual of
the decision to remove the authorized representative, of his right to request
that the LHRC review the decision, and of the reasons for the removal decision.
This information shall be placed in the individual's services record. If the
individual requests, the director shall provide him with a written statement of
the facts and circumstances upon which the director relied in deciding to
remove the authorized representative.
The LHRC may recommend the removal of a next friend
pursuant to
12VAC35-115-200 when the next
friend is not acting in accordance with the individual's best interest.
3. The director may otherwise seek
to replace an authorized representative recognized pursuant to this section who
is an attorney-in-fact currently authorized to consent under the terms of a
durable power of attorney, a health care agent appointed by an individual under
an advance directive, a legal guardian of the individual, or, if the individual
is a minor, a parent with legal custody of the individual, only by a court
order under applicable statutory authority.
Statutory Authority: §§ 37.2-203 and 37.2-400
of the Code of Virginia.
