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Tuesday, November 16, 2010

When Your Health Care Proxy and Attorney In Fact Disagree About Your Health Care

There has been some discussion recently relative to the workings of a Health Proxy (HCP) and a Power of Attorney (POA.) While the HCP agent attends to all medical decisions regarding the principal, who may then become physically or mentally incapacitated, it is the POA who attends to the payment of all bills and collection of income and assets of the incapacitated person. Often times, the principal may determine that the same person should not serve as both the HCP agent and the POA agent. Therefore, the principal may name two different individuals to serve in the respective capacities.

It is important that both individuals, if they are not the same person, will work together in the best interest of the principal, as there may be a conflict. For instance, the HCP agent is charged with the determination of the medical care for the principal. This may possibly include 24/7 home care or placing the person in an assisted living facility or long term care unit. While the HCP agent is making this decision, it is up to the agent under the POA to pay for the care that is contracted. 

Different facilities may elect to have either the POA, the HCP, or possibly both, sign the admission forms and responsibility forms for the principal when the admission is allowed. So long as both parties agree, and there is no conflict, the best interests of the incapacitated person are going to be carried out by the partnership between the decision makers. However, when one of the decision makers does not agree, it becomes a true conflict that must be resolved. 

The HCP agent may determine that the principal needs long term care and institutionalization. The POA may believe that the person does not need that level of care, but rather can use either assisted living or home care with either a significant amount of caregivers or perhaps 24/7 care. In the event of a disagreement, one of the decision makers will have to petition the Court for authority to take over. In these situations, it could be an expensive, long, drawn out process taking several months before a decision is reached by the Judge. Once the Trial Judge makes a decision, it is likely that one of the parties will appeal the case to the higher court. This is an unfortunate circumstance, as the incapacitated person is now possibly paying for two lawyers, one to represent the person in defending an action, and the other to pursue an action against the incapacitated person. In the alternative, perhaps the parties may seek the guidance of a mediator who is trained in resolving conflict without the need for court action. This is also expensive, time consuming, and public. 

Therefore, it is important to consider naming the same person to serve in all documents, or whether it is better to have separate decision makers to deliberately involve more people and provide as more oversight for the best interest of the principal. Often, a person merely names the oldest child or their closest living child, who may not be the best person to serve in all capacities. While there is no right or wrong, it is important to consider the maturity, time available, expertise, geographic addition, and all other factors regarding the decision maker on these documents before naming them.  
 


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