Who Can Help Aunt Tilda In the Hospital?

<span>Photo by <a href="https://unsplash.com/@marceloleal80?utm_source=unsplash&amp;utm_medium=referral&amp;utm_content=creditCopyText">Marcelo Leal</a> on <a href="https://unsplash.com/s/photos/hospital?utm_source=unsplash&amp;utm_medium=referral&amp;utm_content=creditCopyText">Unsplash</a></span>My phone started ringing just as I unlocked my office door.

The call was from Sam, a friend I met in law school. After earning his J.D., Sam chose to stay in Arizona to practice law while I somehow made my way to Maine and, ultimately, to a small mid-central community to build an Elder Law practice. After all, with a nursing background, 20+ years advising healthcare organizations, some guardianship work, and running a small, family-owned business, I was sure I had all the tools I needed!

Sam’s Aunt Tilda was living in Belfast, Maine, and had just been admitted two days ago to the local hospital with shortness of breath, a slight fever, and a vague sense of not feeling well. The results of a COVID test were pending, but she was admitted and, up until very recently, resting comfortably. Late the night before, her shortness of breath had increased, her fever was up, and, according to the doctor, there were some “troublesome areas” on her chest x-ray.

Sam explained that Aunt Tilda is 72 years old, fiercely independent, and had been volunteering in her community throughout the pandemic making masks, helping with a meal delivery program, and working with the local gardening group. She lived alone in her family home after her husband passed away 10 years ago. After the divorce, she continued to work as the head of operations at a local community bank and finally retired five years ago. Pre-COVID, she traveled extensively.
So, why did Sam call me to tell me all about his aunt?
Well - the conversation was about how no one knew who was actually authorized to make healthcare decisions for Aunt Tilda.

The Problem
When Aunt Tilda’s husband, Tom, passed away, there was a messy probate court proceeding to settle his estate with both Sam’s mother, Shirley, and Tom’s sister. Once that dragged out, long process ended, Aunt Tilda had exactly zero interest in spending any more time or money on lawyers - not even to plan for a situation when something might happen to her. The reality is that Aunt Tilda and Sam are quite close and she always just said, “Sam, when it’s time, I guess I will make you responsible.”

But… she never actually made him legally responsible.

As a result, she went to the hospital without a healthcare or financial power of attorney.

So, who is authorized to make decisions for Aunt Tilda’s care if she is too sick to do so? Legally, it’s complicated and can vary depending on where someone lives!
The Solution
Aunt Tilda is on Medicare and when she retired, she visited the local Senior Planning Center in Farmington, Maine, to discuss Medicare supplemental policies. She also has substantial savings in an account with her former employer and Sam’s name is on this account as a “named beneficiary” in the event of her death.

What she needs, however, is one of the easiest legal documents to complete, a healthcare power of attorney (HCPOA) – a document authorizing an “agent” to speak on her behalf if Aunt Tilda is unable to do so.

What are the characteristics of a good Healthcare Power of Attorney? Great question!
First, it is important to understand that HCPOAs only take effect if and when you lack the capacity to make your own decisions.

A good HCPOA is:

  • Signed when you have the “capacity” to make decisions and not at the time of crisis. If capacity is an issue and Aunt Tilda loses capacity, she cannot sign and authorize another person to act on her behalf.
    • Capacity - whether for signing documents, obtaining a guardianship, or simply stating your wishes - is a clinical/medical determination.
  • Specifies in detail the types of decisions your agent can make. You want your decisions honored and to be consistent with what you would want if you could say so. You can also limit the types of decisions they can make if you so desire (more on limiting care next time).
  • Flexible. If you so choose, this document is a place where you can make a statement about your remains in the event of your death, organ donation, and locations for where you want to live if you are unable to care for yourself.

Takeaway

An agent in an HCPOA is not authorized to decide what they want – it is about you having control over the decisions that are important to you and making sure the healthcare team follows your wishes. In difficult situations, you have done a great favor for your healthcare providers by letting them know how and who can best help make the decisions you would have wanted.

You can see why Aunt Tilda not having legally made Sam her power of attorney is a problem!
Do you know who can legally make medical decisions for you if you are unable to? Let’s chat about it!