Avoid the uncertainties: Best practices for dealing with Health Care Powers of Attorney or Proxies

By W. Parish Lentz

Uncertainty over decision making authority for an incompetent patient can delay medical treatments and potentially diminish the quality of health care for the patient.

In the event a patient becomes incapable of making informed decisions regarding his or her health care, a Durable Health Care Power of Attorney (Rhode Island) or a Health Care Proxy (Massachusetts) authorizes a health care agent to make those decisions. These documents are essential for avoiding the expense, delay and lack of privacy that a Probate guardianship requires.

To ensure uninterrupted health services for incompetent patients, health care providers should ask all patients regardless of age whether they have a Health Care Power of Attorney or Proxy, and, if so, place a copy in the patient file. For patients who do not have the appropriate legal document in place authorizing a third party to make medical decisions on their behalf, health care providers should proactively recommend that they do so.

The Rhode Island Department of Public Health offers an approved form for a Health Care Power of Attorney, and the Massachusetts Court System website provides suggestions on creating Health Care Proxies. While the statutes do not restrict the format of the documents, they do require two adult witnesses when the forms are executed. In Rhode Island, a single notary public can sign the form as an alternative to having it witnessed.

It’s important to remember that a Health Care Power of Attorney or Health Care Proxy do not allow access to any funds (unlike a financial power of attorney), nor do they make the agent liable for the costs of health care.

In fact, patients commonly name different individuals as their health care and financial agents. For example, a patient may select a family member who works in health care as his or her health agent, and select a family member or friend in the financial or accounting industry to act as financial agent.

Health care providers should routinely request patients to create a financial power of attorney to ensure uninterrupted payments for needed medical services approved by the health care agent, or, if a financial power of attorney is in place, ask for a copy of it to insure continuity of payment.

When a Health Care Power of Attorney or Proxy Becomes Effective

A Health Care Power of Attorney or Proxy is triggered by a determination that the patient is no longer capable of making informed and meaningful decisions regarding his or her health care. This determination is made by the attending physician according to accepted standards of medical judgment.

The determination should be in writing and contain the attending physician’s opinion regarding the cause and nature of the patient’s incapacity, as well as its extent and probable duration. The document should be placed in the patient’s permanent medical record.

If the patient lacks capacity because of mental illness or developmental disability, the attending physician must have, or must consult with a health care professional who has specialized training or experience in diagnosing or treating mental illness or developmental disabilities of the same or similar nature.

The patient retains the right to revoke a Health Care Power of Attorney or Proxy so long as he or she remains competent.

The Rhode Island and Massachusetts statutes require that only one health care agent can serve at any given time. Successor agents may be named in the event the initial agent is not available.

Health care providers should make sure that they have a copy of the Health Care Power of Attorney or Proxy in the event the patient loses decision making capacity. Once that determination is made and the time for making a decision arrives, the best practice is to confirm who the legal agent is while also making every effort to communicate with the family to arrive at a consensus regarding treatment.

The confirmation may contain a statement from the agent that he or she is not aware of any document that may invalidate or conflict with the Health Care Power of Attorney or Proxy. Rhode Island and Massachusetts both treat the execution of a new health care authorization as an automatic revocation of the prior authorization, in contrast with an individual who may have multiple financial powers of attorney for different purposes with different individuals at the same time.

What a Health Care Power of Attorney or Proxy Isn’t

The Health Care Power of Attorney or Proxy may get confused with other documents included in the catchall term Advance Directive, which includes several different documents serving different purposes.

Legal documents in the Advance Directive category that do not appoint a health care agent for the patient include:

HIPAA authorization/release. This document appoints a personal representative or representatives for purposes of releasing otherwise protected information under HIPAA. Although personal representatives are allowed access to information, they are not a substitute health care decision maker. In other words, they may have a voice, but not necessarily a vote.

Living Will. This document deals with end-of-life treatment preferences only, especially the withholding or withdrawal of hydration and nutrition. We encourage clients to create living wills to inform their health care agents about end-of-life care preferences and values.

Durable Financial Power of Attorney. Most financial powers of attorney are effective immediately when signed. They authorize an attorney-in-fact or financial agent to conduct business for the person granting the power of attorney, even though that person is perfectly able to do so. “Springing” financial powers of attorney only become effective when an individual is incapable of handling his or her financial decisions.

Parish is a partner in the firm’s Providence office and focuses his practice on estate and trust planning and administration.