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Why Power of Attorney Can Be Key for Senior Health Care

N THE VAST constellation of legal documents you could encounter over your lifetime, some are more critical than others. For older adults, a few legal instruments take on outsized importance, particularly in the context of ensuring adequate health care as we age. While some documents that older adults may need are focused on the financial side of your affairs, others concern how decisions will be made about your health care. The information that follows will focus on the documents related to health care that may come into play as you age.

As you navigate these legal waters for yourself or a loved one, some legal terms and documents you may encounter include:

  • Living will

  • Advance directive

  • Do not resuscitate order

  • Physician orders for life-sustaining treatment

  • Health care proxy

  • Power of attorney

  • Guardianship or conservatorship

Living Will, Advance Directive, or Do Not Resuscitate Order

Living wills can go by a number of different names including advance directive, do not resuscitate order or POLST, which is short for physician orders for life-sustaining treatment. This document, which is often printed on brightly colored card stock and is signed by a physician, outlines which specific procedures and actions you do and don't want to receive from first responders in the event of an emergency or from end-of-life health care providers.

It may include questions such as: Do you want a feeding tube placed? Do you want to be transported to the emergency room?

Answers can help specify how you want to be treated if you can't communicate your wishes directly.

Stuart Furman, an elder law attorney and president of the Southern California Legal Center, Inc., in Valley Center, California, and author of "The ElderCare Ready Book," says the living will or advance directive is sometimes colloquially referred to as the "pull-the-plug" document, meaning that if someone is beyond the hope of resuscitation, then let the person go and don't take heroic efforts to revive them.

Health Care Proxy

Health care proxy is a term used in some states to designate the agent who can make healthcare decisions on your behalf, and may be a casual term or may reference the agent named in a formal health care power of attorney document.

Power of Attorney

There are many different types of power of attorney documents that can cover financial or health care matters. Furman says that while there are many permutations of these documents that should be tailored by an attorney for your specific situation, generally speaking all of these legal instruments are "giving authority to someone else to make medical decisions for you in the event that you're not able to make them on your own."

Pamela D. Wilson, a caregiving expert, advocate and speaker based in Golden, Colorado, says that a durable power of attorney is an important document that older adults should seek to organize sooner rather than later. "In very simple terms, power of attorney is either somebody to help you manage money or your health at a point when you either can't take care of yourself or at the point that you become incapacitated," Wilson says. Incapacitation, also sometimes called incompetency, is a legal term that generally refers to someone who "can't review information or logically think through things," such as may occur after a stroke or with later-stage dementia or Alzheimer's disease. When this occurs, the durable power of attorney would come into full force, meaning that a designated overseer or agent steps in to make decisions on behalf of the individual.

It's important to "get your ducks in a row" early, with regard to organizing your legal documents for health care, says Megan Carnarius, a registered nurse, founder of Memory Care Consulting and author of "A Deeper Perspective on Alzheimer's and Other Dementias: Practical Tools with Spiritual Insights." Particularly if there's a family history of Alzheimer's or dementia, you need to make arrangements before the diagnosis is made, because "you can't typically write a power of attorney if someone has this diagnosis." A dementia diagnosis often means the person is considered legally incapable of making those decisions. Therefore, "if families have a suspicion that the person is getting more confused and they feel like they need to go to the doctor to get a diagnosis, they should have already taken care of the financial and decision-making stuff. You don't want to wait until you've gotten a diagnosis, because then (attorneys) worry about competency."

In a perfect world, we'd all set up a durable power of attorney as soon as we turned 18, as that's when things can get dicey legally if you're incapacitated. Wilson shares the story of a young man who fell off a retaining wall and sustained injuries that rendered him incapacitated. A lengthy legal battle ensued over who would make medical decisions on his behalf because he didn't have any power of attorney documents drafted prior to the accident. For seniors, it becomes even more important to get these documents sorted out, as conditions can deteriorate quickly and catch everyone off guard. If the power of attorney assignation is left too late, the person will be forced into guardianship, Wilson says.

Guardianship or Conservatorship

Guardianship, which Furman says is called conservatorship in California, comes into play when someone is unable to make decisions for themselves and there is no power of attorney in place. Many power of attorney documents also include provisions for that same person to become guardian. But there is a distinction in the level of power each role has, Wilson says. "An example would be an older adult living at home who's burning food because they have poor memory. They're not showering, they're not taking medications and they refuse to move to assisted living." The power of attorney designee "can't put that person into a care community because that person could say, 'Hey I'm leaving,' and power of attorney can't stop them. But a guardian can. A guardian has absolute power of appointment through the court. It's a very serious appointment, because when you have a guardian, you give up all your rights to decide about health care and money." Therefore, "it has to be a very trusted person."

Who Should Be My Power of Attorney?

Typically, power of attorney and guardianship responsibilities are vested in a family member, such as the adult child of a senior. But there are lots of other relationships that can work, from close friends to hired professionals. Wilson is one such professional advocate who takes power of attorney assignments for people who don't have an appropriate agent in the family.

Choosing the right person to act on your behalf as your power of attorney is critical, Wilson says. "If a parent chooses a child who has been terrible at financial management to be their financial power of attorney, it's going to be a disaster. Same for health care. If they choose someone who can't advocate with doctors and the care community, it's not going to work out," and this is where professionals like Wilson can help. Appointing a professional can also be a savvy way of avoiding conflict if you anticipate such could occur in choosing one sibling over the other, for example. "You really have to plan for conflict if it exists in family members because all of this gets so very, very nasty," when wishes aren't clearly communicated.

It's also important to designate one or more successors, or backups, to your first-choice power of attorney. A successor would step into the role of power of attorney if your first choice can't or won't serve. "If you don't appoint a successor and the appointed person resigns, and you can't do another power of attorney, you're forced into guardianship. So, you always want to have backup successors in your documents," Wilson says.

Who Can Help Me with Power of Attorney?

To make sure all the documents are properly filed, it's usually best to work with an attorney you trust. "There's all sorts of forms you can pull off the internet," Wilson says, "but it's better to use an attorney in the state where you live because laws differ by states. Have an attorney draft them and look at them every 10 years to see what needs to be changed."

These variations from state to state can become problematic if your loved one moves, says Lindsay Perrin, co-founder of Ro & Steve, an independent online review site for senior living facilities and other businesses related to senior care that sprang out of her and her husband's challenges in finding the right care scenarios for their aging parents. "We drafted these documents for my dad years ago," when he was living in Massachusetts prior to his diagnosis with Lewy body dementia. But since then, he's moved in with Perrin's family in New Hampshire, and sometimes the personnel the family encounters at health care centers aren't familiar with the out-of-state documents. This can cause significant hassle, leading to "stressful situations in the hospital where I'm trying to sign for Medicare and the desk staffers aren't familiar with my Massachusetts documents." Sometimes they need to make calls to an attorney to clear up confusion.

Perrin says it's not possible now to have new documents drawn up in New Hampshire because her father's condition has progressed to the point where he's unable to sign new documents, so they soldier on with the out-of-state but still completely legal documents they have. Still, Perrin recommends thinking ahead about where you're likely to be living when the power of attorney will come into force and have the documents drawn up in that state. "Technically my Massachusetts documents should be well understood. They work here. It's just that not everybody has that education, so think about the next phase," and where you might be living when you'll need the assistance of a power of attorney.

Power of Attorney and Assisted Living

Matt Perrin, Lindsay's husband and co-founder of Ro & Steve, has also had to navigate these legal waters in caring for his mother who's currently in an assisted living facility. He says it's very important to have all of your legal documents in order before making the move to an assisted living community.

Some facilities may require that such documents be in place before they will admit your loved one, particularly if that person is incompetent. "There's no authority for that person to sign the contract," Furman says. "That's a cardinal rule across the country – incompetent people have no authority to sign contracts. It's like a child." Even if you're entering a facility while you're still considered competent, it's wise to have a power of attorney in place so that if your situation changes rapidly, as can happen with a stroke, for example, the community will know whom to contact when decisions need to be made. Having the appropriate type of power of attorney in place "gives us the tools in our toolbox," to be able to act in the best interest of the individual, Furman says.

Matt says drafting a power of attorney was easy and straightforward – the hardest part was having the conversation with his mom about initiating the process. On the advice of a friend, he approached that difficult conversation delicately, seeking consensus with his mother rather than being prescriptive. "It did make it easier to cut through what's not the easiest of discussions," he says of taking a collaborative approach. His mother's 40-year career as a nurse also meant she was open to talking about end-of-life and what arrangements needed to be made for her care. "She sees the value in these sorts of things, but even then, when it comes time to have the discussion about you, it's hard. It's just a tricky discussion, but you're doing it hopefully at the right time and not when you're in dire straits." As with most anything related to aging and health care, getting ahead of any coming crisis is best.

To draft the documents, the family worked with an attorney they'd known for years, though Matt says if he were to do it again, he'd probably opt for an attorney with specialized expertise in estate planning. "We're not wealthy. My mom has very few assets, but thinking we didn't need an estate plan was sort of a naive mistake. And from what I can tell it's a common misconception." Rather, estate planning is an important aspect of the whole picture no matter how much money you have. "I would tackle (estate planning and power of attorney) in tandem. It's one less thing for you to do later," when perhaps your loved one's condition has deteriorated, making even a small task like seeking a notary's signature seem like a much bigger chore. "It adds up, and you need to save your mental space for the real stuff," he says.

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