How can we help elders navigate the daunting medical system and help them make the best choices for their needs and values? Last week I attended a lunchtime continuing legal education program sponsored by the Arapahoe County Bar Association and presented by Janine Guillen, an attorney and registered nurse.
Janine told of her personal experience with her mother’s health care issues toward the end of her life and how she advocated for her mother while her sister served as their mother’s health care agent. Many of us come to be familiar with these matters based on our personal experience with elder parents and their health challenges. Towards the end of their lives, I was health care agent for both of my now deceased parents. I remain skeptical about a health care system (Medicare) that pays its provider for services per intervention, and the greater the number of interventions for elders, the higher the mortality. This post will give a brief overview of the two roles along with some helpful organizational strategies that were proposed.
Yes, these jobs of health care agent and health care advocate can be split. They are often assumed by a single person, but if it is often helpful and sometimes necessary to split up the roles for assisting an elder. A result of this is that it can often facilitate good communication among siblings and allow adult children to share some of the challenges and burdens of helping an elder parent.
What your health care agent (agent under a medical durable power of attorney (MPOA) can do for you.
Your health care agent is the person named in a medical power of attorney to make medical decisions for you in the event you are not able. The types of decision an agent can make can be broad or narrow, general or specific and the agent’s authority is typically set for the power of attorney document. I am in favor of powers that confer broad authority on an agent. This is for two reasons, it requires the principal have a conversation with the agent about what the principal wants (a conversation about these matters is necessary) and there is little likelihood for confusion about what an agent can do. Also, I tend to think that a short document is best, given the amount of time that health care providers spend with their patients, it is not a great idea to draft a long and complicated document which might complicate matters.
I like simplicity and brevity in the medical power of attorney document. Here’s a current pet peeve of mine relating to this document. I am puzzled when I see certain language in a medical power of attorney form that specifically addresses the events in which the agent assumes authority to make decisions on behalf of the principal. I don’t see this language often, but it usually addresses the effective date of the MPOA, offering two alternatives – effective immediately, or as a “springing power” that allows the agent to act only in the event that “my physician or other qualified medical professional has determined that I am unable to make or express my own decisions, and for long as I am unable to make or express my own decisions.” This is set up as an alternative in a poorly worded form, but there is in reality only one situation in which a health care provider would consult an agent to make decisions regarding a principal. The doctrine of informed consent requires a health care provider to get informed consent from the principal, and it is only in the event of the provider’s determination that the principal is unable to give informed consent that an agent would be consulted. All MPOAs are by their very nature “springing” – meaning that an agent is only empowered to act in the event of principal’s incapacity as it relates to the provision of informed consent for health care services.
I cannot say why this confusing language appears in a couple forms I have seen, but it looks to be a relic from the bygone days of the general (financial) durable powers of attorney. Since the adoption In Colorado of the Uniform Power of Attorney Act, which became effective in January 2010, all powers of attorney (nonmedical) executed after that date are (1) durable unless they state otherwise; and (2) are “standing” powers, meaning that the effective date is that date of signature by the principal and that the agent’s authority to act is not contingent on some event or determination (a/k/a a springing power) unless specified to the contrary.
What your health care or medical advocate can do for you.
A health care advocate is not only another set of eyes, ears and brain focused on medical decisions, the advocate can provide reassurance and companionship to help ensure an elder gets appropriate care, gets answers to questions and otherwise ensure understanding concerning health care services that are recommended. If you are thinking about getting a health care advocate, make sure it is someone whose judgment you trust and is someone who is not afraid to ask questions or stand up to authority in unfamiliar or stressful situations.
Here’s a bullet list of some of the tips that Janine provided:
- Go to The Joint Commission website to perform a quality check on a health care organization (hospital or provider);
- Use language and specific observations that your doctor can use to help diagnose a problem (use fact-specific observations and stay away from online self-diagnosis);
- Make sure you have executed HIPAA releases for your agent, health care advocate and any others you want to have access to your medical information;
- Keep an up-to-date list of all health care providers, their specialties and contact information;
- Maintain a current health history and medications list so that it doesn’t have to be remembered and written down for each provider; and
- Write down questions you have so that you don’t forget to ask them when you see the doctor.
Here is a link to a Forbes article about how to become a patient advocate. Many of these advocates gain their skills and come to appreciate the need for such services as a result of coming to serve in that capacity for an elder parent or other relative. I think it would not be controversial to make the observation that it is not simple for an elder to manage and effectively navigate through our medical industrial complex on their own.
©Barbara Cashman 2014 www.DenverElderLaw.org