Care documents

Ragfoot · March 30

I tried enrolling my DW in day care a couple of days a week. After all paperwork was completed and just a couple of days before she was to begin, her enrollment was denied due to possible fecal incontinence. (The facility did not have a shower). This information is being mentioned because of things I may have subsequently learned...

Along with application forms, the facility provided an optional form I could submit. Physician Orders for Life-Sustaining Treatment (POLST). I mentioned I had an Advanced Health Care Directive and the response was basically "That's nice, but without the POLST, we will be required to take whatever medical action deemed necessary. They recommended if I do have a POLST, I should also post a copy on the home referigerator and keep a spare copy handy. I filled out the form and signed it as "Signature of Patient or Legally Recongized Decisionmaker". Of course, this is not sufficient... it also needs to be signed by a Physician/NP/PA.
The POLST declares your intent to attempt Resuscitation/CPR or Do not attmept Resuscitation/DNR.
And select type of Medical Intervention requested, Full Treatment, Selective Treatment or Comfort-Focused treatment. Also, whether or not you want Artificially Administered Nutrition.

Then, I decided to look closer at some of the other documents I have had prepared. The Advance Health Care Directive also contains an article "Determination of Lack of Capacity"... "The determination of whether I lack the capacity to give informed consent shall be made in writing by a licensed physician." So, even though I am designated agent as her Power of Attorney for Health Care, I can be ignored without the licensed physician's declaration. AND, an article "Directive to Physician" states "If at any time I should have an incurable injury, disease, or illness certified to be a terminal condition by TWO physicians", then they could withhold life-sustaining procedures.

Also, looking at the Durable Power of Attorney, I see it also only becomes effective WITH a signed declaration by a licensed physician indicating my LO lacks capacity.

I am guessing the day care center was not only covering their a**, but mine too. I will get the POLST signed ASAP. (NOTE: POLST forms differ from state to state.)

Any comments? Am I missing something?

Joe C. · March 30

In Massachusetts it’s called a MOLST (Medical Orders for Life-Sustaining Treatment) form.

In MA Medical Power of Attorney forms are referred to as a Health Care Proxy (HCP) and has to be executed by a physician for the designation person to make the health care decision. If you want until it is “needed” you might have trouble finding a doctor to execute it when you need to make decisions. In MA the regulations say that a single doctor that has seen the patient more than once and they can note a cognitive decline can sign the document. Therefore any PCP or neurologist who has treated your LO can sign off if they have seen the patient twice and can note cognitive decline. When I needed it I had to jump through hoops to get the HCP signed, so my advice is get a physician to sign it before you need it.

M1 · March 30

Your POA is what is called a "springing" POA (as opposed to durable) that requires physician certification to launch it. Get this asap as it may well matter later on. Good wakeup call even though im sure its frustrating that the day care won't take him.

Ragfoot · March 30

https://alzconnected.org/discussion/comment/203916#Comment_203916

Interesting, I wonder why it is labeled a "Durable Power of Attorney"?

Phoenix1966 · March 30

In the legal world, it is my understanding that “durable” only refers to “the POA’s endurance through the principal’s incapacity.” That being said, usually documents described as durable power of attorney do not have any need for a “trigger” like a doctor’s declaration of incapacity to become active(springing powers of attorney do), because the DPOA is active as soon as it is signed.

Edited to add: After some more online research, it seems like legally there are really only two kinds of POAs: POAs, which are valid until someone becomes incapacitated and Durable Power of Attorney, which remain durable through incapacity. A “springing” POA is a durable one, just with additional conditions.

Source: https://smartasset.com/estate-planning/how-does-a-springing-power-of-attorney-work

“The Bottom Line. A springing power of attorney is a type of durable power of attorney assignment. Instead of assigning your authority immediately, this form creates a condition under which someone will take handle matters on your behalf.”

Ragfoot · March 31

Update/correction…

July 2013 I/we had our original documents created. It was from those documents I quoted the previous information.

January 2020 my wife resigned as trustee of our Family Trust. At that time, our attorney also redid our DPOAs. MY DPOA still reads "… shall become effective only in the event that I become incapacitated or disabled…" and requires physician statement to activate. HER DPOA now reads "…shall be effective immediately and shall remain in full force…" until revoked or death.

No changes were made to our Advanced Health Care Directives.

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