This is a situation that keeps coming up on our hospital service. I’m not looking for legal advice–I just want to know if my understanding of the concepts is correct. (Trust me, no controversial decision is going to be made without appropriate input.)
So let’s say I have a perfectly competent patient in the hospital–alert, oriented, capable of understanding the consequences of his decisions. That patient has, for whatever reason, also granted “power of attorney” to someone, typically a son or daughter. (They never know what kind of PoA or anything useful like that. They also seem to give PoA to people without functioning cell phones.)
Is there any situation in which I would need to consult that PoA before accepting a decision the patient makes about his health care? It often comes up in terms of code status. The patient clearly says he wants to be a DNR, but the social services team insists that we have to get the PoA’s consent before we do that.
My understanding is that patient autonomy trumps all, and that if a competent patient tells me he wants to refuse a treatment, and he understands the consequences, that’s all I need to know. No one can override that decision, power of attorney or not.
The only place where it might get dicey is when finances get involved. The typical scenario is that a patient wants and needs to go to the nursing home, but the son who has PoA is cashing and spending her Social Security checks and doesn’t want them to stop coming. But even so, it seems to me like the patient’s best interests always win out in the end.
I don’t understand the problem. If the patient is right there, making what appears to be his/her own informed decisions, why does the topic of POAs even come up?
I understand that someone may have a financial POA to manage the person’s finances, but those either cease completely when the person becomes incapacitated (which does not apply here, as the patient is not incapacitated) or does not become functional until the person becomes incapacitated (which again is not applicable here as the patient is not incapacitated).
If it is a healthcare power of attorney (advance directive), it usually falls into the latter category and no one gets to make healthcare decisions for the patient unless the criteria has been met for determining the patient is indeed incapacitated (e.g. his/her own primary physician plus two other doctors declare him/her incompetent).
If the POA is financial, it’s the business office’s problem getting the bills paid and they are, in my humble opinion, exceedingly good at tracking down the people who pay.
Regarding healthcare, if the patient says DNR, then you DNR until and unless someone with a POA and an order from a court tells you not to. Surely your organization has a lawyer on tap to answer questions like this one.
This is just my opinion, not legal advice. IAAL but I am not your lawyer or anyone else’s lawyer and furthedr, I am not an elder care lawyer so my understanding may be applicable only in the state in which l am licensed to practice, which is probably not your state. Ignore all of the above, just to be safe.
I think hospitals are extremely leery about enforcing DNR and similar directives. I know one case in which a man had left explicit instructions that no extraordinary measures be taken to keep him alive. (It is relevant that he once told me that no relative had escaped Poland alive in 1939.) First he had a stroke that left him aphasic, but conscious and actually able to carry on a conversation, even a mathematical conversation, so long as all that was required of him were head shakes. After a couple years he had a catastrophic stroke that left him flatlined. At this point, some distant cousin appeared and insisted that the hospital take extreme measures. There was no PoA, but the hospital was (I infer) petrified of being sued and listened to the cousin rather than the clear directive.
My PoA with my father clearly states that he can revoke it at any time. It seems insane that any competent adult could not be able to make decisions for themselves and revoke their PoA at their option. If you read through the actual agreement it’s clearly granting me the authority to act as his attorney-in-fact only; there’s nothing to remotely suggest he’s giving up his ability to act and make binding decisions on his own.
A power of attorney permits the attorney-in-fact to act on behalf of the principal, but does not restrict the ability of the principal to act (or revoke the power at any time). As you no doubt are aware, a health care proxy/power only comes into effect when the patient is unable to make medical decisions.
The one thing that would limit a patient’s ability to make medical decisions would be certain guardianship orders issued from a court of competent jurisdiction. In New York at least there are two types of guardianships “of the person” and “of the property” (though there can be a combined order). A guardian of the property controls the person’s assets and financial affairs, but has no control over medical or other personal decisions. A guardian of the person has the legal right and responsibility to make the ward’s personal life decisions, including those relating to medical care. Only when a patient has a guardian of the person (or whatever they call it in your state), would the patient’s wishes be able to be overridden by another.
A PoA may only be used for the benefit of the grantor. In the OP’s example, if the son is acting contrary to the *interests *of the parent, the action is invalid.
If the parent is able to make a decision, that overrides. If an outsider, e.g. the hospital, observes what it reasonably believes to be an abuse of the PoA, it’s legally bound to a) refuse the attorney in fact’s (son’s) order, and b) demand a Court order before paying any attention to the son.