Ask the Expert Q&A: Power of Attorney Update
By Amy Natt, MS, CMC, CSA
Q: My mother was recently in the hospital and told she would need surgery. We were asked for a copy of her healthcare power of attorney document. My mother had drafted these documents years ago and had designated a family member, whom she is no longer in contact with, as her health care power of attorney. This created some confusion and stress for all of us, not wanting that person to be contacted. Can you please address how to revoke this document and exactly what documents my mother should have in place?
A: This is a great question and one that many families do not think about until they are in a crisis situation (the worst time to be dealing with added stress). A power of attorney (POA) is a written authorization to represent or act on another’s behalf in health care decisions, private affairs, business or some other legal matter. The person authorizing the other to act is the principal, grantor or donor (of the power). Deciding whom you will designate to act on your behalf (attorney-in-fact) if you become incapacitated in some way, is a very important decision. You are giving this individual(s) a great deal of power, and it is vital that they know what you would want in a variety of situations. This topic is not only for the aging but also for adults of all ages to consider. So what happens when you change your mind or no longer want the person to have the authority to act on your behalf?
Revocation of power of attorney is a separate legal document signed by the person who granted a Power of Attorney (your mother). It states that she is canceling the powers that were given to the other person (the attorney-in-fact) in her earlier Power of Attorney. The document provides written confirmation that the principal has revoked the Power of Attorney that was previously granted. The revocation becomes effective when that person has received notice of the revocation. It is important that you have a copy of the written document as evidence of your revocation and to make sure there is no doubt as to your intention to revoke the power.
Your example highlights one of the many reasons why a person may wish to revoke a Power of Attorney document. It may be that you no longer trust the person named to act on your behalf; that they have moved away, are no longer able to act, or that you have found a more suitable candidate to act as your Attorney-in-fact. It could also be that The Power of Attorney is no longer necessary as you are now able to act on your own behalf (it was for a temporary situation).
Whether you are executing documents for the first time or making changes (including revocation) to your documents, you must be mentally competent to do so. This is one of the reasons it is so important to have conversations with your spouse and /or parents about advanced directives, the instructions that allow you to spell out your decisions about end-of-life care ahead of time. They give you a way to communicate your wishes to family, friends, and health care professionals and to avoid confusion later on.
There are several documents you should consider having. A living will or directive for natural death tells which treatments you want if you are dying or permanently unconscious. You can accept or refuse medical care and include instructions on things like resuscitation, feeding tubes, breathing machines, and organ donation.
A standard durable power of attorney is a document covering authority to manage personal and business affairs like property, banking, insurance, estate, taxes, and necessary care. A durable power of attorney for health care is a document that names your health care proxy. Your proxy is someone you trust to make health decisions for you if you are unable to do so. Both are important to have in place and reviewed in the state you currently reside in. In addition, many people are now executing a document specific to authorization for use and disclosure of protected health care information.
An elder law attorney can guide you through the process, and make suggestions based on your individual situation. They truly are the experts and should be consulted for decisions and documents that have such a significant impact on how decisions will be made on your behalf and what specific end of life directives you want to be implemented. This may be a challenging conversation for some families to have, but it is much easier to have the conversation now, and not wait until you are in a crisis situation. For those who may not have family or friends to act on their behalf, it becomes even more important to think about professionals who may be able to act in this capacity for you and work to build a relationship of trust with those individuals.
The best way to manage choice and independence is by making and communicating these decisions through legal documents as well as conversations with those who may be involved in your care.