Last week I presented to you the hypothetical, but very common case, of Jane who is in the hospital and has acute and chronic health issues. She has no family or she is estranged from her family. The immediate problem is that she has no designated person to act on her behalf as agent under her power of attorney or as health care representative under her health care directive. Her current mental and physical state is such that she can’t make the many decisions large and small that the hospital staff – doctors, nurses and social workers – need her to make with regard to her treatment and discharge plan. So to whom can she turn?
Before I answer that question let’s talk about what kinds of decisions will need to be made? If Jane is in the midst of a serious medical crisis, doctors and nurses will administer whatever treatment is necessary to stabilize Jane if she is in immediate danger. The need for a decision maker doesn’t stop there, however. If Jane is elderly and has chronic health issues tough questions remain concerning her discharge plan. Can she go home alone or will she need supervised care? Will home aides need to be hired? A geriatric care manager to oversee her care? Is the home a safe environment or can it be made safe with home modifications? Is an assisted living facility or a nursing home a better fit? Do her finances limit her choices?
Friends and trusted professionals would be the next place for Jane to turn for help. Knowing what lies ahead, however, some friends or professionals may not be capable of assisting or may not feel comfortable. While an agent under a power of attorney won’t be the person to provide the care, he/she will need to call upon the people and businesses capable of providing those services. The agent will also need to determine Jane’s personal finances and access the necessary accounts to be able to pay for those services.
All this can be time consuming, especially for an agent who is assuming the role for the first time. We must also consider Jane’s mental state. Is she competent to sign the necessary documents to empower the agent? If not, then a guardianship process – a court proceeding – will be necessary before any action can be taken on Jane’s behalf.
If Jane does have legal capacity to sign a power of attorney and/or health care directive what participation level is she capable of or does she desire to have with respect to decisions regarding her care and placement? Over the years – and with increasing frequency – I have been called upon and agreed to serve as agent under power of attorney to make these decisions. The complexity of each case varies. A significant factor is the principal’s ability and desire to participate in making those decisions.
If Jane accepts my recommendations as to what is in her best interest and whether she has the financial means to pay for care, my task is a much easier one than if she is more insistent in taking an active role and wishes to make choices that I don’t believe are in her best interest and that will put her health at risk. Can I simply ignore her and do what I believe is in her best interests? If I do that she can revoke my authority and she is back to where she started with no one to help. As I often explain to families in America individual freedom is a bedrock of our democracy. Everyone has the right to make bad decisions.
It may be necessary for me to take a back seat and try to guide Jane in the direction I think she should go but I may need to recognize that – at least initially – she will be making decisions that I will help her carry out. I may need to wait until future developments allow me to assert more of a “leadership” role in Jane’s care plan.
There are no easy answers and there is no set “blueprint” as to how to handle each situation. Recognizing what lies ahead, however, may help with the first big decision – who should my agent or health care representative be?