Protecting Mom and Dad with Power of Attorney

Plan now for an Advanced Health Care Directive and Power of Attorney, before you and loved ones need to use it.

Several times a month, a call comes into Elder Law and Advocacy's office in San Diego that goes something like this: "Hello, my wife (husband, or parent) has advanced Alzheimer's disease and her doctor told me I need to get power of attorney. Can you help me?"

Misconceptions about creating and using a power of attorney for health care or finances creates problems for many families. Here's what you need to know.

Important choices

Having a health care power of attorney, also known as an Advance Health Care Directive (AHCD), is important for ourselves, our parents, and our children. An AHCD lets us make health care decisions in advance of incapacity. It tells physicians, family, and friends a person's health care preferences, including the types of special treatment the person wants or doesn't want at the end of life, and the person's desire for diagnostic testing, surgical procedures, cardiopulmonary resuscitation, and organ donation. Having an AHCD helps ensure the quality of life that is important, and helps avoid forcing family to guess our wishes and make critical medical care decisions while under stress or in emotional turmoil.

Requirements vary by state. For instance, the State of California doesn't require an older adult or resident of a care facility to have an Advance Health Care Directive. However, if the person receives Medicare and California Medi-Cal, then health care facilities, such as retirement homes with their own health care facility, and skilled nursing facilities, must offer an Advance Health Care Directive form to their residents. Many people spend their last few days in a hospital, nursing home, or hospice rather than in their own home. During these end-of-life days, AHCD lessens the burden on family members and loved ones.

You can have a power of attorney for health care, finances, or both. By signing a document, a person gives someone, known as the agent, the power to make specific health or financial decisions for them. This includes the power to deal with health care providers or financial institutions or agencies.

Tip: Think about creating an Advance Health Care Directive before it becomes needed. You can revoke an AHCD at any time simply by executing a new one.

Meeting of the minds

The AHCD agent should be someone who is comfortable with the person's wishes and will readily follow them. Sometimes a loved one, spouse, or child is too close to make these decisions. It might be better to choose another agent who won't be traumatized or subject to guilt when facing treatment acceptance or refusal, or removing life support as the AHCD specifies.

Tip: Make sure to discuss possible scenarios based on the individual's situation, because doctors and other health providers may ask questions not specifically covered in the AHCD.

In addition to choosing an AHCD agent, you can name an alternate agent in case the first named agent is unable to act. If you name two people to act as agents together, be sure both agents agree with the wishes stated in the document. If agents don't agree, there can be many problems, and even court intervention before action can occur.

What to include

An Advance Health Care Directive minimizes suffering, and increases peace of mind and control over situations surrounding death. If you're not sure what to put in the AHCD for yourself or a loved one, speak to a doctor or nurse.

Tip: The primary physician should agree with decisions you make. If not, you should change doctors.

An AHCD should cover decisions regarding life-sustaining treatment, such as ventilators, artificial hydration and nutrition (tube feeding), withholding food and fluids, palliative/comfort care, organ and tissue donation, dialysis, defibrillation, resuscitations, antibiotics, and other invasive procedures. The AHCD should provide space to write out the exact wishes for these types of actions.

Tip: To add more information, attach a plain piece of paper to the document, and list the title and number of the item being continued on the additional page. All pages must be signed and dated for them to be observed.

If the person resides in a nursing home, require the ombudsman at the nursing home to witness the signing of the Advance Health Care Directive.

Once you have a signed AHCD, give a copy to the named agent and the alternative agent, and go over the document with all agents. Also give a copy to the primary physician and any other physician usually seen. If living in a care facility, put a copy in the patient's file. Keep the original in a safe place, and place copies in a convenient place, in case it is needed in an emergency.

Plan ahead

You don't need an attorney to fill out and execute an Advance Health Care Directive. You can hire a lawyer if desired, or in many areas, an attorney is available at no charge to provide the form and answer questions.

The person executing the AHCD must possess mental capacity, which is defined as the ability to understand the ramifications of such decisions. If the person appears to be incapacitated, a lawyer will do an interview to see if the person understands what is wanted. Without this understanding, the attorney cannot create an Advance Health Care Directive or a power of attorney for financial decisions.

Just because your spouse, parent, or relative (or even yourself) has a diagnosis of dementia or Alzheimer's disease does not mean, that in the early stages, the person can't make decisions. In fact, it is not unusual for a person with a new diagnosis to make an appointment to get the legal documents in place to make it easier for family members to make decisions, or to take care of any situations which might arise.

The first step is acknowledging the need for an Advance Health Care Directive. It's a tough emotional step for any of us, but it is important to ensure that our wishes will
be respected.

Resources

Most state and local governments provide forms and guidance. In California, you can get a sample Advanced Health Care form at http://www.ag.ca.gov/consumers/pdf/ProbateCodeAdvancedHealthCareDirectiv... or call 800-952-5225 or 916-322-3360. In San Diego, you can contact Elder Law & Advocacy at 858-565-1392. They assist local residents with AHCDs and financial Powers of Attorney.