The Healthcare Power of Attorney
Guest: Dennis Christensen – Elder Law Attorney
Host: Sally Smith – Author/Resource literature on age-related disease and healthy aging
Sally Smith: Welcome to Age to Age. I’m Sally Smith. Let’s talk. Dennis Christensen, an elder law attorney, has been talking to us about documents that are important to have as we age. And one of the most potent documents is the Healthcare Power of Attorney. What is that, Dennis?
Dennis Christensen: The Healthcare Power of Attorney is a document that you sign which indicates that if you are ever unable to make medical decisions for yourself, you designate a certain person to make those medical decisions for you. In addition, as part of the document, you can indicate, if you’re not able to make the decision for yourself, whether or not you want to be an organ donor. You can indicate, if you’re ever terminally ill, or permanently unconscious with no chance of ever getting any better, whether you want artificial resuscitation, of a number of different types. You can lastly determine, by initialing the appropriate place in the document, whether you want tube feeding, if you ever become terminally ill, or permanently unconscious without any chance of getting any better.
This last one, the tube feeding, was the issue that became such a hot topic with Terri Schiavo down in Florida years ago. Had she had a healthcare power of attorney, none of the ruckus that came up as a result would have occurred. So, by doing this, what you’re doing is naming the people you want to make medical decisions for you, and you’re telling them what those medical decisions are, with respect to certain types of decisions. If you don’t have a healthcare power of attorney, instead of your wishes being followed, a family member will be appointed, or named, to make medical decisions for you. Their wishes are going to be followed and you’re probably going to end up going through probate court with guardians and conservatorships being established, which are very expensive and time-consuming. But, more importantly, you’ve lost control of the decision, and you can very well have a person appointed by the court making the decision. So, the healthcare power of attorney puts you in the driver’s seat, and not the courts.
Sally Smith: And, when does this healthcare power of attorney go into effect, at what point?
Dennis Christensen: When you sign the document, it’s effective immediately. But, the person you’ve named doesn’t have the authority to use it until two doctors determine that you don’t have the legal capacity to make the decision that’s in front of you. So, if you’re in car wreck, and they may have to amputate your leg, and you’re in a coma, the two doctors are going to say that you can’t make that decision because of your accident, therefore, the person you’ve named under the document takes over.
Now, it’s possible, for example, that they’d take you to the hospital and you can’t make the decision, so your agent’s going to make it for you. The next day, you recover consciousness and you can make the decisions again. So, each medical decision stands on its own and requires two doctors to say that you can’t make that decision before the agents you’ve named are allowed to. You’re really not giving up control because as long as you’re mentally able, you have full control, and the other persons you’ve named have no control over decisions.
Sally Smith: Well, what’s interesting to me about that, Dennis, is that even though I have always assumed that the healthcare power of attorney is something that would be used as I became senile, or older, or demented, actually, your wreck example is quite a valid one, and it brings up a very good point, who needs to have these documents in their hands at all times? If I had a wreck on the way home today, I don’t know where my healthcare power of attorney is.
Dennis Christensen: Well, it’s very important, in my opinion, that anyone over 18 should consider having these documents. Although, statistically, you’re not as likely to be injured, or in a serious condition, as someone that’s older, it is still possible. Years ago, I was crossing a street here in Charleston, I got hit by a car and thrown up on the hood, and then on the cement. Fortunately, my head didn’t hit the pavement. But, had that happened, and I’d had a serious brain injury, even though I was much younger, I would be in the same position as someone that’s 85 years of age with a major stroke, or Alzheimer’s.
All of us are one accident, or one sickness away from being unable to make medical decisions. We can’t predict when that time will come, if at all, so we all need to have these documents. The healthcare document is just as important for the 25-year-old as it is for the 85-year-old. There’s no reason for a younger person not to have it. That’s an interesting statistic that I read the other week. In a given year, you’re six times more likely to be incapacitated than you are to die. Yet, we emphasize having wills, but we don’t always talk about powers of attorney. It’s more likely, in a given year, that we’re going to need that over a will. I have lots of clients that have wills that don’t have powers of attorney, including the healthcare power of attorney. We need all of them.
Sally Smith: Wow. That is so potent to hear, and definitely an assumption, I think, many people make, that the will is primo. It’s like people that worry to death about flying on an airplane when, actually, if you look at the statistics, driving your car is many times more dangerous. So, when you get a healthcare power of attorney, how many copies should you get? Where should you keep them?
Dennis Christensen: You’ll sign an original, and then you should keep the original with you. Or, if you put it in a safety deposit box, that’s probably one place you wouldn’t want to put it. If you get sick on a weekend, you’re out of luck. The healthcare power of attorney needs to be somewhere in your home. Some people keep it with the first agent they’ve chosen, but that’s not such a good idea. Usually, you’ll have a backup agent. If, for some reason, your first agent is not available, the document’s with them. We suggest that it be kept at home in a place where your agents know to locate it, that you give a copy to your doctor and to the agent you’ve chosen. There are occasions when people get sick unexpectedly and they can’t find their healthcare power of attorney. So far, every hospital that we’ve worked with, they call us, and we’ll fax a copy. There hasn’t been a hospital, yet, that’s required an original.
There’s a program that we’re starting to develop in our office in which your documents are kept online in a secure place and you get, like, a credit card. And if an accident happens, they can, with the use of a pin, get in, and that healthcare power of attorney can be sent directly to a hospital, or a doctor, so you don’t have the same issue as someone who can’t find it. We’re still in the final stages of putting it together but, I think, soon, it’s going to happen. The card also allows you to list allergies, who your treating doctor is, and who to contact in case of an emergency. A lot of people don’t have that.
Sally Smith: It’s amazing. As we moved my mother out of our family home, and as my father had died, they’d been extremely competent. I mean, he was a physician, and he kept very careful records, but they’d gotten older. And we had trouble, as it changed from the original dentist we knew, and the original doctor we knew, and all of that, to who they might have gone to see in the last five or six years. Those things had changed, and I could see that site being extremely useful, instead of going around looking for receipts and telephone numbers to try to piece the puzzle together.
Dennis Christensen: Another thing about healthcare powers of attorney is that they’re very easy to revoke. If you decide that you no longer want a healthcare power of attorney, if you don’t want the same agent, you can tear it up and, immediately, it’s no longer valid. Or, you can, orally, tell the doctors at the hospital that you’ve changed your mind, give me the works, and they’ll honor that request. So, if you change your mind, you don’t have to worry about going back to the doctor. If you’re concerned about it, just rip it up. Or, when you go to the hospital, or the doctor, tell them that you’ve changed your mind, and that’s sufficient to revoke that healthcare power of attorney. So, don’t be afraid to do it for fear that you won’t be able to undo it if you change your mind and you don’t get a chance to talk to someone. That’s how it can be done.
Sally Smith: I see. And, in this healthcare power of attorney, you, also, through the initialing, have said, these are my desires. It not only appoints someone to take care of things, it also says, in these scenarios, this is how you’d like you to proceed.
Dennis Christensen: So that they don’t have to guess.
Sally Smith: So they don’t have to guess. And then the final thing is if you change your mind, even up to the final moment, you don’t have to go back to the lawyer. It’s a verbal, or rip up the paper, situation. That’s amazing that it’s that easy to revoke, on something like a legal document.
Dennis Christensen: Well, because they want to encourage people to do it. And if they made them so difficult to revoke, people would not be as willing to do it in the first place, because they like that independence to change their mind, so they provided for that with a statute that allows for these healthcare powers of attorney.
Sally Smith: Thank you so much, Dennis. You have really taught us a lot about important documents to have, that we all should have as we move forward through life, and I look forward to hearing you speak about the other ones. And thanks to all our listeners for joining us. We always welcome your suggestions and comments on our website. This is Sally Smith, Age to Age, saying goodbye and wishing you courage and joy on your journey. We are all connected.
If you enjoy listening to Sally Smith, you can buy her book, The Circle. It’s the story of how she personally responded to her mother’s journey with Alzheimer’s disease. It’s a wonderful gift of hope for anyone with a parent with dementia. Just click on Sally Smith’s name under the Health Professionals tab on the Podcast home page. All profits support research at the Center on Aging. Thanks.