Durable Power of Attorney: True or False?

Durable Power of Attorney : True or False?

 Mother is 86 years old and has chronic health issues including what the MD has diagnosed as “early stage dementia.”  Mother has difficulty with her activities of daily living, her check book, and her medications.  She is proud and stubborn and refuses to consider a move out of her own home.  I, as her eldest daughter, have a Durable Medical Power of Attorney. 

True or false?

I can announce to Mother and my family that she is moving to an assisted living facility where she will be safe and be well cared for.

I can take over all decisions having to do with her medical care.

I can insist she has help in her home and can arrange for it, paying for it out of Mother’s funds.

I can be held legally responsible if mother suffers injury or illness as a result of her decisions to ignore my pleas or the doctor’s advice.

The answers to the above 4 scenarios are FALSE.

A power of attorney does not give that individual the right, legal or ethical, to subjugate the individual’s preferences or decisions for the POA’s own purposes or convenience.  The document for assigning a POA clearly states that the designated individual shall make decisions based on the principal’s stated desires and preferences and when the principal is unable to express her desires and preferences herself.

It is incumbent upon the individual with the POA to KNOW the principal and to honor as far as possible her preferences when she can’t speak for herself.

The DPOA does not give the individual carte blanche the power to do what she prefers or believes is right.  It does provide the privilege to act on another’s behalf and as her advocate. 

That said, discussions about decisional capacity and competence vs. incompetence needs to happen.

Decisional capacity is the ability to consent to or refuse care.  It is determined by discussion and verbal exchange and is said to be present when an individual can hear, understand, and report accurate interpretation of a set of options or choices and can accurately describe in her own words,  the possible consequences of her choices.

Incompetence is a legal term and , with the support of  specialized examination (as a neuropsyche evaluation) and assessments is determined by a court of law .  Only in that case can an individual’s decisions be made by an appointed individual, a guardian or (in the case of financial management) a conservator.

When a DPOA is assigned and accepted it must be with complete trust on both sides, clear understanding of responsibilities, rights and preferences.  This is not a document to be taken lightly, despite the fact that it is easily obtained and executed and can be done without the assistance of an attorney.

It is  an essential document that, along with a Living Will, Five Wishes document or other description of one’s desires, needs, and preferences for end of life, should be distributed to key members of one’s support system.  These individuals would likely include spouse, children, or adult grandchildren, physician, attorney.

Thoughtful planning before a crisis is the key to a smooth transition.

 Thank you to Amy Rosenberg, Esq. for her professional guidance and editing .