FAQ: Healthcare Power of Attorney

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Jim Schuster, Certified Elder Law Attorney

Offices in Southfield and Farmington Hills, Michigan

248.356.3500 www.JimSchuster.com

What is a Healthcare Power of Attorney?

It is a document executed by a competent person (the principal) giving another person (the agent) the authority to assist in making health care decisions or actions for you. This action may happen if you are unable to communicate such decisions yourself or if you merely choose to have assistance in making a decision or taking an action such as signing a contract. For example you may have your Agent make an appointment for you, talk to the pharmacist about your prescription, discuss treatment options with a specialist.

What is an Advance Directive?

An advance directive is a document in which you give instructions about your health care if, in the future, you cannot speak for yourself. You can give someone you name (your “patient advocate” or “agent” ) the power to make health care decisions for you. You also can give instructions about the kind of health care you do or do not want. This the document that gives authority for end of life medical decision making.

If you cannot make or communicate decisions because of a temporary or permanent illness or injury, the Advance Directive helps you keep control over health care decisions that are important to you. In your Advance Directive, you state your wishes about any aspect of your health care, including decisions about life-sustaining treatment, and choose a person to make and communicate these decisions for you.

A word of caution: A statutory “Designation of Patient Advocate” is designed for end-of-life treatment decisions. It requires the examination and determination by two doctors that you cannot make medical decisions yourself. That’s why this form is not good for management of routine medical matters.

What Other Names Do the documents have?

These documents may be referred to as a Healthcare Power of Attorney, a Designation of Patient Advocate, Health Care Advance Directive, an Advance Directive or Living Will. You may correctly understand that because they have different names they are not the same. Each has a particular role to play in medical matters.

What is the difference between a Healthcare Power of Attorney, a Living Will and an Advance Directive?

If we are speaking about a true “Living Will” then the answer is yes. Technically a Living Will, or Advance Directive, only addresses end of life medical treatment.

The Healthcare Power of Attorney is not limited to cases of terminal illness. Whether it is “immediately effective” or “springing” the document authorizes the Agent to handle any matters that may come up. These may include appeals of insurance coverage denials, making an appointment for a specialist, reviewing complicated medical information with a doctor or hospital.

End of life treatment options are controlled by the Advance Directive. You will want your wishes to be known about whether you should be kept alive by machines. By executing an Advance Directive Healthcare Power of Attorney, you ensure that the directions that you have given your patient advocate will be carried out in the event you are not able to give instructions.

Why have a Healthcare Power of Attorney?

In case you ever become incapacitated, even temporarily such as after surgery, it is important that someone has the legal authority to communicate your questions and instructions concerning medical treatment. You may want somebody to talk to your doctor or a specialist about your treatment plan. Many people say they just don’’t understand why the doctor is recommending a particular treatment.

What if I do not have a Healthcare Power of Attorney?

If you become incapacitated and a serious medical decision must be made, your family will have to go to the probate court and have the judge appoint a “guardian.” This process can be expensive and can take time. In addition, the judge may not appoint the person you would choose. The judge may appoint a stranger, whom you will pay for their service. Finally once you have a guardian you and the guardian will be under the supervision of the probate court.

Who should I appoint as my patient advocate?

Since your patient advocate is going to have the authority to make medical decisions for you in the event you are unable to make such decisions yourself, it should be a family member or friend that you trust will follow your instructions. Before executing a Healthcare Power of Attorney, you should talk to the person you want to name as your patient advocate about your wishes concerning medical decisions, especially life sustaining treatment.

What do I put in a Healthcare Power of Attorney?

First you appoint an Agent who will assist you when you wish. Second, you give the Agent instructions that state the Agent’s scope of authority.

What should I know about instructions concerning end of life care?

Your instructions to the agent must in a “clear and convincing manner” identify when medical treatment will be withheld. You may not delegate decision making without any guidelines, saying for example “my patient advocate knows my wishes.”

Must my end of life treatment instructions be written?

No. You may give instructions to your Patient Advocate orally, but written is better. If there is any question or disagreement about your instructions the probate court will have to decide the question. For example, two people may recall you saying different things about medical treatment. The Michigan Supreme Court ruled in such a case that when a man said he did not want to be kept alive by machines, he was referring to a coma state. It happened that he had an accident and was kept alive by machines and could not communicate his wishes. But he was not in a coma. The court did not allow termination of the medical treatment.

Are there special provisions I should know about?

Yes. Most forms, whether provided by hospitals or by most attorneys, do not allow the agent to act until two doctors examine and certify that the patient cannot make informed decisions. That is very unhelpful for the elder who is relying on a spouse, friend, or child to handle routine medical matters. In addition most do address psychiatric treatment or consent to psychotropic medications. A person who has a history of treatment for mood disorders will want to have an Agent authorized to accept or reject treatment, to accept or reject hospitalization. In cases of dementia thought or mood problems are a common. Surviving spouses often experience debilitating depression. If the document does not specially authorize mental health treatment the Agent has no authority to consent or oppose.

Is it too late if I have a diagnosis of Alzheimer’s Disease?

No. The mere diagnosis of any condition that limits a person’s ability to make decisions does not remove the person’s ability to make legal documents. The legal issue is whether the person has “capacity” to understand what they are doing. For example, can a parent say and understand “I want my daughter to speak to the doctor for me and help me make medical decisions.” If so, then the parent has the “capacity” to appoint the daughter as agent. It is possible to have the capacity to appoint an agent and not have the capacity to make an advance directive or Living Will. End of life medical treatment decisions are complex and hypothetical. That is why it is very important to take care of the document as soon as possible on the diagnosis of a chronic degenerative condition.

When does a Healthcare Power of Attorney take effect?

The conditions of effectiveness are stated in the document. A Healthcare Power of Attorney may be immediately effective or it may “spring” into effect upon certification of two doctors that you are unable to participate in medical decision making . For example, you may require medical treatment and are unable to communicate your wishes. Your Agent or Patient Advocate would make the necessary decision. But, could they do so or would you first need to arrange two doctors to examine you and certify you cannot make the decisions?

Can I Cancel Or Change A Healthcare Power of Attorney?

Yes, you can cancel or change your Health Care Advance Directive by telling your agent or health care provider in writing of your decision to do so. Destroying all copies of the old one and creating a new one is the best way. Make sure you give a copy of the new one to your physician and anyone else who received the old one.

What if I regain my ability to communicate my own decisions?

If you had to have the probate court appoint a guardian for you then you will have to go back to court and have a hearing to determine if the judge will cancel the guardian’s appointment.

If your agent is acting under a Healthcare Power of Attorney then You will again make your own decisions as you choose.

If your agent is acting under an Advance Directive, which means the authority sprung into effect on the two doctors’ certification, then you may need to doctors to certify you are again unable to participate in medical decision making.

Who should have a copy of my Healthcare Power of Attorney?

You should have the original document. Your patient advocate should have a copy and medical office where you receive treatment should have a copy with your medical records.

When does the authority of the Agent Patient Advocate terminate?

Upon certified improvement of your condition, revocation, court order of divorce, annulment or separate maintenance, and upon death.

How can I get a Healthcare Power of Attorney?

Easy. Give us, Jim Schuster, Certified Elder Law Attorney’s office, a call at (248) 356-3500. Make an appointment and come on in. We’ll be very happy to help you.