What's up with "Powers of Attorney for Healthcare" (and Property)?

Factual Questions
1

A few years ago, at my mother’s instigation, my parents drafted their wills (which were more or less identical, IIRC leaving each other as the first-in-line sole beneficiary and me as the second-in-line). On top of this, they signed one or both of:

  • a document called a “Power of Attorney for Healthcare” (or similar)
  • a “Power of Attorney for Property”

(I don’t remember if they signed both of these or just considered them but signed only one). In essence, the first document was meant to authorize each parent and myself to make health care decisions for the other parent in the event that this was necessary. The latter would have done the same for their property. You would think that the primary motivation for signing such a document would be to have your family honor your wishes in case of your becoming incompetent to exercise them yourself; however, as I understood, my mother’s primary motivation for signing these powers of attorney/getting my father to do the same was that she has a pathological fear of doctors and the medical system and doesn’t want the government to make medical choices for her. Thus, authorizing her family to make those choices would presumably empower them to exercise her medical wishes on her behalf rather than a doctor or some government official making those decisions for her.

I was given these documents to examine and there was one thing that struck me: I hope I didn’t misread them or not read them carefully, but I couldn’t find a clause that said that the signer was conferring this control over their healthcare decisions to their family member only in the event that the signer was incapable of making those decisions him/herself. Again, perhaps there’s something I misread, but I got the impression that the P of A gave the signer’s family members decision-making powers over their health/property even if the signer had capacity (was mentally competent) to make those decisions for themselves! Did I misread/misunderstand/misinterpret something, or is it normal to sign such P of As without adding a clause specifically stipulating that the decision-making power is only granted in cases where the signer is incompetent to make those decisions independently?

What’s more, I recall my mother indicating that I too should give my parents P of A for my heathcare for the same reasons. This is something that I would not have done under any circumstances as 1) I wouldn’t want to give my mother any additional power over me - she’s exercised far too much of it during my life and 2) I think she has made some extremely poor healthcare decisions for herself (basically allowing a serious injury to go untreated due to fear of doctors, causing her to become permanently bedridden) and in fact consider some doctor or government official to be more competent to make decisions, if necessary, about my health than she would be! However, she never re-visited the issue, so the possibility of my signing a P of A for healthcare was dropped. Also, I have since left Canada for good, so it’s a question whether my parents haven’t even re-written the ones they did sign to include only each other as having decision-making capacity since then.

At the time, I mentioned to my father that giving such sweeping powers to a family member over your person or property without a clause to the effect that it only applied in cases of mental incapacity seemed crazy; his reply was that it was something that was done in families where trust existed among its members - and I consider my family not to be such a family. Plus, why would you trust anyone 100% for ever and ever and sign over your very competence to them? Or could I have missed something in - or about the nature of - the documents under discussion?

Just to make the discussion complete - the legal jurisdiction in my personal story is the Province of Ontario. (And my basic question here lies in the text bolded above).

2

Medical Power of Attorney in my state (WI) clearly indicates that it must be activated to be in effect, and it is activated when it is determined by either two physicians or a physician and a clinical psychologist that the patient can no longer make competent decisions for themself.

I urge my patients to pick someone they can trust and to be clear in what they do and don’t want in terms of interventions. My patients can also request that an activated power of attorney can be re-evaluated to see if they are again competent.

I have declined to activate a fair number of MPOAs because I considered the patient competent.

I do believe that is the basic standard for most, if not all states.

3

This is not to argue with Dr. Mercotan, as I’m not a medical professional of any stripe, but to add to it. My experience with POAs, having utilized and used them many times over the years, is that they aren’t used to make decisions for you, well they are, but in your stead, when you can’t. Some people won’t accept a POA. I can’t speak to the medical community, but many banks, stores, etc will not accept a decision made by a POA holder as far as I know, they don’t have to unless compelled. Also, a POA is revocable instantly, no paperwork needed, and usually, in my experience anyway, they have a expiration date as well.

I’m sure one of the boards legal experts will be along to correct all the things I’ve gotten not quite right, but hopefully this helps

4

Can’t speak to Ontario, and am not a lawyer; but I’ve held/been granted these: in New York State a) if the person giving such a POA is competent, they can withdraw it at any time and b) POA’s have to be executed in the best interests of the grantor – this may be blurry in the case of a medical POA, but someone with a financial POA can’t, for instance, simply empty out the accounts of the grantor and run off with the money.

Also, for either, the grantor can write in instructions and conditions. Neither has to be a blanket document, though they can be.

ETA: If you don’t want your mother to hold your medical POA, name somebody else. Talk it over with them first, to be sure they’re willing and are reasonably in agreement with what you think you’d want; but you can name anybody legally competent, it doesn’t have to be a family member.

5

It can, under some circumstances, be advantageous if just ONE person out of a group of next-of-kin is designated The Decision Maker.

In my case, my medical POA specifically EXcludes one of my surviving sisters, passing that authority on to two other (trusted, of course) people if my preferred sister is unable to fulfill that role, The copy I have specifically states it is only in effect if I am unable to act on my own behalf. And yes, I have discussed what I do and don’t want with both my sister and the other two parties.

My financial POA is, again, in case Something Awful Happens To Me and I cannot act on my own behalf. In that case, I designated a local (to me) Trusted Person who can pay my rent/bills/care for my pets/etc. until either I get better or my Last Testament and Will kicks in. Again, I have two additional “alternates” in case my first person for whatever reason can not act on my behalf.

I set this up because actuarial tables indicate that I will almost certainly outlive both my living sisters, likely by a couple decades, leaving no clear next-of-kin to do this for me (well, a niece and a nephew, but neither knows me well - who also, unfortunately, may also pre-decease me like two other nephews have already). I don’t want to be languishing in a state objectionable to me while doctors/lawyers/judges try to figure out who the hell can speak for me, or have to make judgement calls on my behalf with little to no knowledge about me, or my pets starve to death because of the time it takes to grant someone authority to enter my residence and feed them, or any of the other sorts of mayhem that can occur if someone is incapacitated for awhile. I’ve seen/experienced this often enough in life that I don’t want to go through it more directly.

While you’d think that being the near-kin of someone would make this automatic, when my husband was rendered quickly unable to fend for himself in his final months there were several instances where a clear documented POA might have made things much, much easier. Getting through HIPAA barriers, for example, was not fun at times and more than once I was told that either a prior authorization OR a medical POA would have made the going smoother. Spouses, or parents of adult children, or siblings, are NOT automatically granted access to medical information in the US.

In that case you might want to consider a POA designating someone OTHER than your mother to fulfill that role, in the event someone needs to do so.

You mentioned Canada - this is where I put the disclaimer that the laws vary by jurisdiction, please consult a lawyer in your area and don’t rely on some random internet stranger (like me) to give you the Straight Dope on this. I’m sure the rules/law in Ontario, Canada differ from those in Indiana, USA

One reason I chose my Local Trusted Person for my financial POA is that he has acted in this role in the past for other people, both relatives and non-relatives, and is familiar with how to handle these situations. Again, this is very much an area where mileage may vary.

6

Durable POA’s (by definition) don’t have any sort of expiration date. I suppose that somebody could refuse to honor one if they felt that it was too old.

7

IANAL but I am an Ontarian and a) hold POA for my mother and b) have reciprocal POAs with my wife.

In Ontario, the POA for healthcare is only enforceable:

  • An attorney for personal care is only allowed to make medical or long-term care decisions if a medical professional or evaluator finds you mentally incapable of making the specific decision.

From https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/incapacity/poa.php, so this isn’t a Brittany Spears situation where you are given carte blanche to make decisions.

8

For the “Property” Power of Attorney, it’s common for the POA to take effect upon execution of the document, even when the principal is still competent.

There are many (generally older) people who legitimately need help in handling their financial affairs / don’t know how to handle them, but not so mentally incapable to the degree a doctor would state the person was incompetent. Just confused by the complexity of those matters, which is normal.

**I’m quoting you, but the quote interweaves both a healthcare POA and “Property (Financial)” POA. Generally, a healthcare POA is the opposite and normally only takes effect upon incompetency. Even if it did not, a competent principal will always be able to dictate their medical decisions.

9

At one point, I held my mother’s while she was entirely competent, but was travelling outside the country, and wanted someone who could deal with anything that came up. (Probably that’s easier to deal with now, but at the time anything requiring a signature would otherwise have had to cross an ocean twice in the mail.) IIRC, I used it to write a check on her bank account to pay a veterinary bill for her cat, who I was taking care of.

Considerably later on, she gave me a new POA because although still legally competent she was starting to have trouble keeping track of her bills and wanted me to be able to pay them for her to save her the trouble. Luckily that was still in effect when she went further into dementia and that became not a convenience but a necessity.

She could however have withdrawn either at any time – and if she’d withdrawn the second one while in dementia, I would have had to go to court to get it reinstated. Luckily that didn’t happen.

10

Outside of the actual POA legal ability to act in someone’s stead (i.e. if they’re incapacitated in some way), access to health records and information is GREATLY eased by the presence of a POA. Since you’re legally empowered to act in the person’s stead, you’re also allowed free and unfettered access to their medical information and records.

This can be important even if they’re still competent, or mostly competent. Many older people suffer from senility/dementia, which is not always severe enough to require the activation of the POA for making decisions for them, but they may still need help with things like coordinating prescriptions, doctor’s appointments, interpreting doctor’s diagnoses and results, etc… Having a POA lets you talk directly to the doctor about your elderly relative/friend, without the game of Telephone that it can be with someone who either doesn’t understand or remember what was said.

11

True – and can be true even if not suffering from dementia at all. My mother’s hearing was very bad, and even while her mind was still entirely intact she used to take me to appointments with her so I could hear what was being said, rather than have to ask over and over again to have things restated; and would put me on the phone to clarify doctors’ instructions over the phone. Much of this was before HIPAA, and immediate family members could get medical information without anyone having had to sign forms – if you’re both in person in the office maybe you still can, but I don’t think you can over the phone now unless the forms are on file.

12

There were a couple times post-HIPAA over the years when my husband would call the medical insurance people, establish his identity, then tell them “I’m handing this matter over to my wife who is handling this for me. She is allowed full access to anything in my record” and away we’d go, but that was definitely a case of someone competent being present and delegating. Would that always work? Probably not - there’s always an exception - but it work every time we tried it.

Honestly, HIPAA is one of those things that can protect a person to death. Literally. It’s crazy the way it’s interpreted sometimes that can can divulge information even when you want to do so.