Much has been written about the requirements for executing advance directives such as powers of attorney, designation of a health care representative, living wills, arrangement for organ donation, and do not resuscitate orders. Giving thought to any of these directives is a good idea in advance of the need for them. Today I am thinking more about some of the things that can go wrong, or should I say go differently than anticipated with respect to advance directives. For example:
1) The law in Indiana is that a designation of health care representative, more commonly known in other states as a health care power of attorney, is only effective when the principal is not able to make decisions. Notice that in our documents the power to make decisions for someone else is usually prefaced by the words “whenever I am incapable of making my own health care decisions.” That sounds clear enough, but in reality, a health care facility cannot practically decide, on a day to day basis when their patient is capable or not capable. This tends to lead to a bias to ask the health care representative what care should be given, even when the principal is competent to make the decision. It is the representative that may be paying the bills. It is the representative who made the admission decision and has the most interaction with some of the staff. The point is that we must guard against allowing health care providers to always ask the representative. It is the patient that should have input, if possible.
2) Did you know that the default health care decision maker, under Indiana law, is a group of people. Unless you have made out a designation of health care representative or have a legal guardian, your health care decisions can be made by your parents, your brothers and sisters, your spouse, and your adult children – AND THERE IS NO PRIORITY IN THAT GROUP. In other words, they all have the same level of authority. This can lead to problems or a stalemate. Now think about what happens in a hospital or nursing home when there is a disagreement between family members about what health care decision to make for a person. I can tell you that standard procedure in a hospital is to get the entire group together and try to mediate the dispute. However, when you think about it, that is not what your advance directive says. It does not say, if I cannot make a decision, mediate the dispute among anyone making a noise about it. It says a specific person is named to make a decision when I cannot. The designated health care representative may have to point out that they, and not the group, have the authority.
3) Another thing to guard against is allowing a facility to consult a “POA” or power of attorney, when that power of attorney may have no designated health care powers. A power of attorney usually refers to financial powers and one must read the document closely to see if there are also health care powers. I have noticed that once a POA is documented in a person’s chart, that person automatically tends to become the health care representative, no matter what the document says.
The point of these examples is that we must stay watchful when advocating for those who have advance directives.