Power of Attorney or Medical Decision Maker?

[00:00:00] Hello everybody and thanks for joining for a new episode of the Truth, Lies & Alzheimer's Show. And I'm Lisa Skinner, your host. Today I want to cover a topic that actually may become vitally important for you, especially if dementia has touched your life or is expected to. And that

[00:00:27] is, I'm going to explain to you today exactly what the difference is between a power of attorney and a medical decision maker and why you typically need both plus backups. And they need to be completed

[00:00:51] while the person living with dementia can still legally sign their documents. And I just want to say this episode is for educational purposes only. It's not legal advice. And I also want to mention, in California, where I live, the document names and exact rules can vary. So I want to make sure that if

[00:01:17] you're not a resident of California or somebody living in California, please consider having a professional review your specific plans pertinent to the state that you live in or your loved one lives in. Each state varies. So just make sure that you research your specific state to meet your specific needs.

[00:01:47] So let's get to it. What is a medical decision maker? A medical decision maker is a legally appointed person who makes medical decision on someone else's behalf after that person has lost the ability. That's also known as capacity to make their own medical decisions. And as we all know,

[00:02:17] with dementia, their decline can sneak up on us rapidly. So once they're no longer considered with sound mind, it can change everything. So make sure that this is all these documents are taken care of

[00:02:35] before that person. So that's the first one. So that's the first one. So that's the first one is the person named a designated person ahead of time in a legal document. And depending on your state, you might be

[00:03:01] called their medical power of attorney, their health care agent, their health care proxy, or even their health care surrogate. The second way is that you become their decision maker by default. Now, if there is not a legal document designating a medical decision maker or a court appointed guardian,

[00:03:24] state law, state law generally determines who can make decisions based on a next of kin hierarchy. So make sure you check your state for those rules. And then the third way is a court will appoint someone. And this happens through the legal process of guardianship or conservatorship. And this happens through the legal process of guardianship. So that's the first one.

[00:03:50] And this is a court that can actually give someone authority to make medical decisions after a person has been legally declared incompetent. Now, the terminology and some of the rules and also documents will and do vary state by state. So I just want to make sure that we're clear on this, on who will be the medical decision maker,

[00:04:17] because it's such an important first step when advocating for someone living with dementia. And figuring out who will have this responsibility is really just the beginning of the legal and medical decision making process. The entire goal is to proactively prepare for the future and understand what

[00:04:44] what to expect medically by documenting what your loved one would want for their end of life wishes, and for you to be prepared for the decisions you're likely to make to fulfill those wishes. So part one, the big problem dementia creates for these types of decision making processes.

[00:05:13] With dementia, the central issue is going to be decision making capacity. And once that capacity declines, it can also fluctuate. So a person might seem okay one day, and not be able to make or communicate decisions a few weeks later, sometimes it happens that quickly.

[00:05:40] And then real life happens. Your loved one may fall, they may develop an infection, or even end up in the hospital. And when that happens, clinicians and facilities need clarity quickly on several things. Who's legally allowed to make decisions? What type of decision are you being asked to make? Is it a financial decision that needs to be made or a medical decision, medical care decision?

[00:06:10] Will your original documents still be valid when your loved one's capacity declines? That's something to be aware of. If these answers aren't clear, families can face delays and sometimes court involvement. So this is the exact

[00:06:32] reason why planning ahead is how you prevent any issues coming up unexpectedly that you're not prepared for. But you have to make quick decisions. Part two, the core distinction. Now it's extremely important for all of you to understand the distinction between these two different roles. So we're going to start with the

[00:07:02] power of attorney, also known as a POA. Again, it's a legal document where you appoint someone, your loved one in this case, as what's called an agent to handle financial and legal matters, their financial and legal matters.

[00:07:24] Think of money related tasks such as bill paying, managing bank or retirement account, handling benefits, paperwork, working with insurance companies, or managing certain financial transactions. All of these are decisions that the agent will be asked to make for their loved one or the person that

[00:07:53] they've been assigned to. In dementia planning, families usually focus on what's called a durable financial power of attorney, meaning it's intended to continue if the person and when the person eventually loses capacity in the case of dementia. Now, separately, and this is what a lot of people aren't clear about,

[00:08:17] and it is the whole purpose of clarifying this today. Separately, there is also a medical decision maker that's separate from a power of attorney for financial financial purposes. A medical decision maker is the person who has been legally authorized to make

[00:08:44] health care decisions when the patient cannot. This includes consenting to or refusing treatments, health care decisions, discussing goals of care with the doctors and nurses, any medical staff, helping guide care choices consistent with a patient's values and preferences. These are end of life wishes.

[00:09:11] So the key takeaway here is that there are usually different authorities for different domains. This is what I want to make very clear. So the financial power of attorney generally doesn't replace healthcare decision authority, and a medical decision maker does not replace financial authority. So here's a helpful metaphor to relate this distinction

[00:09:40] to the financial POA that you hopefully might remember. Think of the financial power of attorney the financial power of attorney as being a key for the money door. And medical decision maker authority would be a key that unlocks the healthcare decision making door.

[00:10:03] And you usually need to have both keys. So why one document or one person isn't usually enough? It's because many families will make the reasonable assumption that, well, we named one person and figured they'd handle everything.

[00:10:24] But in real life, this belief can backfire on you and break down because the hospital or facility needs medical consent authority, not financial authority, not financial authority. The bank, however, or the facility needs financial access authority, not medical consent authority.

[00:10:48] So I'm going to give you a couple of common scenarios where you can relate what I'm saying here. So let's say a parent has a durable financial power of attorney. The adult child can now manage their bills and accounts with this durable power of attorney.

[00:11:13] Then the parent is taken to the emergency department and clinicians need medical consent for their treatment. The adult child presents them with the financial power of attorney. Now, staff may still have to pause because that document is not typically going to cover money and legal affairs.

[00:11:39] The family then scrambles to locate the correct healthcare decision document, or they're going to have to find another path which can delay care planning. Another scenario, the medical decision maker gap. So the opposite. Another family has a healthcare decision authority.

[00:12:04] The medical decision maker can talk to doctors about treatments and preferences. However, a facility or insurance requires financial documentation like paying for their care, managing their accounts tied to residents or services, or completing the benefits paperwork. Now, the medical decision maker may be able to advocate for the person medically,

[00:12:34] but they may not be authorized to handle the money or transactions. So delays can and probably will follow. So what's important here is not that anyone did anything wrong. Probably just didn't know that these were two completely separate roles. People are not going to be able to do anything wrong.

[00:12:59] It's that planning that often covers only one door, while real life requires both. So we should plan based on knowing that life happens unexpectedly and that you'll likely need financial and medical authority around the same time.

[00:13:22] So, timing and capacity are two of the most important things to cover. And why early planning is the whole game. Many documents require that the person still has the ability to understand and sign. Dementia progresses many times faster than we ever expected it to.

[00:13:51] It varies from person to person. So, capacity might end up being lost earlier due to complications like a hospitalization, delirium, sudden medical events on top of dementia. Therefore, the best practice is to plan before capacity declines, while the person can still sign and participate in the planning.

[00:14:27] And that's why identifying and documenting authority while things are still stable matters.

[00:14:36] So, important thing for everybody to know about and take into consideration during this whole process that you need to choose the right and appropriate people for each one of these roles and have a solid backup plan already in place.

[00:15:01] So, I'm going to kind of go over with you regarding choosing who will serve one or both of these roles. Obviously, you need someone who is very trustworthy, but also somebody capable of doing the job under tremendous pressure, needing to make quick decisions.

[00:15:25] So, for the financial power of attorney, consider whether they can handle deadlines, banking and paperwork, calm communication with financial institutions and agencies, long-term organization. Now, for the medical decision-making, consider whether they can communicate clearly with clinicians.

[00:15:53] To stay steady emotionally. To advocate for the patient, even when family members disagree. To stay healthy, please. And make decisions aligned with the patient's values. What were their end of their life? Wishes that they hopefully express to you before they became incapacitated.

[00:16:18] And I want to stress backups are not optional because we know that life happens. And a lot of times it happens unexpectedly. Your primary agent could be traveling. They could be ill. They could be, you know, out of pocket or simply unable to serve at the moment that they're needed.

[00:16:43] So for these reasons, you will want to have a primary and a backup for each role, both for financial and for medical decision making. Values, values, conversation and practical communication. So we know documents do provide legal authority, but conversations provide the guidance that we all really need.

[00:17:11] A medical decision maker performs best when they understand what their loved one or the person they're caring for cares about. So some of the questions that you could ask while they're still of sound mind is what does a good day look like to you? What are you most afraid of?

[00:17:38] This is a tough question, but a necessary one. If recovery is unlikely, what should care focus on for you? What treatments would you not want if you were unable to live independently? Then document everything and share that conversation briefly, but clearly with the medical decision maker.

[00:18:08] So they're not put in a position where they have to second guess what to do now. What's your next step? Well, it's to have an action plan. So first off, identify your financial power of attorney agent and the backup person. Identify your medical decision maker and a backup person.

[00:18:33] Make sure the planning is designed to work if and when capacity declines. Organize all their documents so you'll be able to find them quickly. You can send packets with emergency response teams that have all of these documents in one place. Talk about identified values with your medical decision maker.

[00:19:00] The goal here is to prevent confusion during emergencies. Things are chaotic enough. So I'm going to just quickly recap. The power of attorney is a legal document naming an agent who will make decisions regarding money and legal affairs.

[00:19:27] The medical decision maker, and it may be called several other names, but this is also a legal document naming an agent who will make decisions on behalf of somebody about health care, consent and goals of care. Again, can't stress this enough.

[00:19:51] Dementia planning should be done early before a person can no longer sign legal documents. And you usually need both roles and backup people. Your documents need to be easy to locate.

[00:20:11] So I want to thank you for being here today and hopefully paying attention to this critically important subject matter. I want to ask you all to visit my website, mindingdementia.com, because on that website, when you first open it up, I offer a complimentary handout. It's called my blueprint.

[00:20:40] And it informs you of more documents that you really need to be aware of besides the power of attorney and the medical power of attorney. And then consider reviewing each document with a qualified professional to confirm they match your specific situation, especially if dementia is already present.

[00:21:08] Now, I created that document. Now, I created that document so you would know what medical and legal documents are actually available. So you'd be aware of. But not every single document will pertain to your specific situation. So if you take my document with you to your financial advisor and your attorney and they don't mention one of the documents that I have listed,

[00:21:35] then you can ask, what's a post form? Do we need that for our situation? And that's why I created that document for awareness. So please feel free to go onto our website, mindingdementia.com, and download that free document that I created with all medical and legal documents that are available out there. And again, they vary state to state.

[00:22:02] So make sure that you're asking about something that pertains to your specific state. So thanks again for being here. I hope this has been really helpful for everybody. And I'll be back again, as always, next week with another new episode of the Truth, Lies, and Alzheimer's show.

[00:22:22] I'm Lisa Skinner, your host, and I wish you all have a very blessed rest of your week and for everybody to stay happy and healthy. So I'll see you all next week. Bye-bye.