Submitted by Lon55 on Mon, 06/27/2011 - 09:11
Posted in
My mother has a power of attorney that she signed three years ago and it names me as her Agent. It has very broad language about what I can do, but does not mention healthcare decisions. I know I'm being lazy about this but I really do not want to talk to her about signing a healthcare proxy if I can avoid it. Although she is mentally sharp, she has been ill recently and I don't want her to dwell on the negative. So, in a pinch, can I use this POA as a healthcare proxy and will doctors or hospitals accept me as her healthcare agent? Thank you.
Power of attorney as healthcare proxy
Hospitals and doctors, at times, do odd things when dealing with end of life decisions, but under Massachusetts law, they should not accept the power of attorney as a healthcare proxy and should not allow you to make decisions regarding your mother's care. Interestingly, Massachusetts General Laws Chapter 201D, Section 16 states:
Nothing in this chapter shall invalidate a power of attorney delegating the authority to make health care decisions executed prior to the enactment of this chapter.
However, Chapter 201D was enacted a couple of decades ago and, in any case, it does not appear that the POA in question delegates health care decision making power to you. I know it can be hard, but you should talk to your mom about executing a healthcare proxy now. This does not have to be a discussion about dying. It can be a discussion about her giving you the power to make decisions, if necessary, during her illness and, hopefully, on her way to recovery. You can follow this link for more general information about health care proxies in MA. Good luck.
Power of Attorney v. Health Care Proxy
A Power Of Attorney (POA) is meant to give the agent (sometimes called attorney-in-fact) all powers that the principal would have at the time of the decision or act.
I see language in Powers of Attorney that give specific powers relative to health decision issues. This may lead someone to the conclusion that a Power of Attorney will be accepted and have legal control over a health care decision.
However, the other side of this argument is that since the legislature has enacted a statute meant for the specific purpose of the transfer of decision making powers related to health issues from yourself to a "proxy" for matters of broad medical decisions where the principal is unable to do make those decisions (a health care proxy), you may have trouble getting a doctor, hospital or nursing home to accept the POA for health decisions.
When a person has both documents (Power of Attorney and Health Care Proxy), the Health Care Proxy is thought to control.
As a general rule,it is always wise for an attorney to advise when possible to minimize future potential problems and fit the client with the proper documents before there is a problem.
In your case, if your Mom has the capacity to execute a health care proxy presently, better to take care of it now and rest easy knowing you will not have to worry about whether a medical provider or institution will question your health decisions made for your Mom.
If you don't, you may find yourself at the Probate Court needing to apply for a Conservatorship or Guardianship which may be costly and time consuming.
This is intended for informational purposes only and not legal advice. No client-attorney relationship has been created.
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