The Power of the Power of Attorney

by Abbie J. Widger

This article was written for The Nebraska Health Care Association.

A Power of Attorney (POA) document allows you (the principle) to name someone (attorney-in-fact) to take care of your financial business or health care business, or both.

The health care POA becomes effective when the principle becomes incapable of making health care and medical treatment decisions.  As a health cre provider, you must follow the directive of the health care POA.  For example, if the principle directs the health care provider to communicate with his/her son, who is the health care POA, you may do so whether resident/client is incapable or capable.  However, if the son comes to you and says “Here is my health care POA; you must deal with me,” the first question the provider must ask is whether the principle is incapable.

There is a process for determining when the principle is incapable.  The first step is the attending physician, and any consulting physician, must make the determination of incapability.  Then the determination is put in writing, documenting the cause and nature of the principle’s incapacity.  The written documentation of incapacity is then placed in the principle’s medical records.

We are questioned about the principle’s ability to veto or override the health care decision made by the attorney-in-fact.  The statute provides that the principle may veto a decision made by the attorney-in-fact unless a county court has determined that the principle is incapable of making such an objection or veto.

Another issue is the priority of the attorney-in-fact’s authority.  For example, daughter brings resident to a health care facility and states she has the health care POA but does not provide a signed document.  Three weeks later, the same principle’s son presents a health care POA identifying him as the POA in said document which document had been issued three years prior to resident entering the facility.  Son also presents a letter from the treating physician dated one year prior to the time the principle moved into the facility, which letter followed the statutory requirements that the principle was incapable of caring for herself.  In this scenario, the facility has the right to rely on the three year old POA as it is the only signed document in its possession.  Further, because there is a letter of incapability, if the daughter’s POA is as recent as one year or less, her authority is questionable.   If there is a dispute about whether the principle is incapable, a petition may be filed in the county court for a determination.

Facilities have also asked whether the attorney-in-fact has the authority to stop nutrition and hydration.  The attorney-in-fact may withhold or withdraw life sustaining procedures or artificially administered nutrition and hydration if the document clearly grants such authority, or some other clear and convincing evidence states this was the desire of the principle.  However, the attorney-in-fact may not withhold or withdraw routine care, or the usual and typical provision of nutrition and hydration.

Unless otherwise stated, the financial POA becomes effective when signed and ends at death.  This means the POA can talk with your creditors, negotiate debts, pay bills, and manage money.  The financial POA document also has a role in collecting accounts.  The financial POA has the obligation to use the resident’s resources for the resident’s care.  If there is a financial POA at the time of admission, we recommend having that person sign the admission document as the responsible party explicitly contracting himself/herself to pay the resident’s bill with the resident’s resources.

When dealing with a POA, remember to review the document for the authority granted to the attorney-in-fact.  If you have a resident who states the attorney-in-fact is not acting in his or her best interest, or believes the money is used inappropriately, the resident may revoke the POA and you should contact the Adult Protective Services hotline and report elder abuse.