John has dementia. Unfortunately, it is the aggressive and angry kind of dementia. His family came to my office. The facility where John is located cannot keep him because of his aggressive behavior. The family came to us in part to help place John.
Several years earlier, John and his wife Margaret had prepared healthcare and financial powers of attorneys by another law office. I am assuming that just because of their advanced age, they thought John and Margaret would be better served if their children, Ralph and Rhonda were the agents. As a result, each had independent power to act, without the consent of the other. Though Margaret (the wife) had full capacity, she was not listed as John’s power of attorney
So, here we are. John needs to be placed in a new facility. And guess what? His children, Ralph and Rhonda, cannot agree on where John should be placed. And Margaret, John’s wife, has no say so, according to the legal documents that were prepared.
The healthcare power of attorney is a form that was used by the attorney. It had some optional blanks in it that were not utilized; so it really did not give me any help on what John’s real goals were.
Why does a person even need a healthcare power of attorney? Can’t a person’s children or their spouse act for that person? As a general rule, without a healthcare power of attorney (or a guardianship—another article!), your family has no legal authority to act for you.
So, what should you be doing with a power of attorney?
First, be sure your “agent” (this is the person that you choose to act for you when you cannot) is capable of carrying out your wishes. Is this person strong enough to make healthcare decisions, even if it is not the healthcare decision that they would make for him or herself, but instead will follow your wishes?
Second, modify or draft the healthcare power of attorney (HCPOA) to reflect your wishes. As an example, in my personal HCPOA, I defined what I think is an acceptable quality of life and what is not an acceptable quality of life. If I cannot recapture an acceptable quality of life, then I actually restrict my agent’s authority—the agent has less power to do things. Similarly, if I have dementia, I have some strong rules on what my HCPOA can and cannot do.
Third, visit with your HCPOA agent. Let them know what kind of power you are going to give them, but also let them know your wishes, and how their power can be restricted, under certain circumstances, particularly decisions about the end of life.
Why are we doing all of this? Part of it is to provide legal cover to your agent, but also to cover the healthcare providers involved. It also establishes legal authority in your agent to “say no” to a healthcare provider. Even more important to me is that my agent, through the expressions contained in my HCPOA, does not feel guilty by making hard decisions in following my wishes.
Just a personal example: When I was caring for my grandmother, she was 93 years of age. I made a decision to terminate many of her medications, treatments, and tests. It just seemed like they were creating their own set of problems.
I was the HCPOA agent for my grandmother. So I had the authority. Upon learning of my decision, her doctor wrote me a letter saying I was “artificially accelerating” my grandmother’s death.
My grandmother still had capacity. I read her the letter. She smiled and assured me I was following her wishes, but I was lucky because I had her reinforcement.
We took my grandmother off of her many medications, and then stopped the tests and treatments. And guess what? She got better, and lived another few years.
It does not always end that way. Recently, a friend’s mother in law was very ill. The treatment offered to her would give her a few more days, perhaps even a few months. Her three daughters were going in different directions from each other. By chance, they all ended up in the hospital room at the same time, and Mom had a moment of clarity in which she sat up and said, “I am ready for hospice!” Suddenly everyone was on the same page. Within a day, mom was gone.
Let me return to my story from the beginning. What was important to me was to break the impasse that Ralph and Rhonda had created, and that the deciding vote really needed to be Mom. We got the children and their mom to visit a facility and decided it was acceptable—a good conclusion. We were lucky.
So, pick your agent well; express your wishes; and then communicate them to your agent.
Randy Clinkscales is a 1980 graduate of Washburn Law School.