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Imagine a mother has given her adult son a POA for medical when she cannot speak for herself. After some time, she has dementia and needs to go to the emergency room. In the emergency room it is determined that she cannot make a rational decision about her health care. It is also determined that she is not a danger to herself or others. Given these two facts, would the POA give the son the right to force medical treatment (and possible a hospital stay) on the mother?

3 Answers 3

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W.r.t. New Jersey law, I assume the mother properly executed this form whereby she

appoint[s] a health care representative with the legal authority to make health care decisions on my behalf and to consult with my physician and others.

The directive becomes operative

when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to section 8 of this act that the patient lacks capacity to make a particular health care decision

but also

Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish, and where appropriate confirm, a reliable diagnosis and prognosis for the patient

Note that under NJ. Stat. 26:2H-57(d),

A patient who lacks mental capacity may suspend an advance directive, including a proxy directive, an instruction directive, or both, by any of the means stated in paragraph (1) of subsection b. of this section. A patient who lacks mental capacity and has suspended an advance directive may reinstate that advance directive by oral or written notification to the health care representative, physician, nurse, or other health care professional of an intent to reinstate the advance directive

where the simplest method is

Notification, orally ...by any other act evidencing an intent to revoke the document

i.e. saying "I revoke your medical power of attorney".

Assuming that didn't happen, there must be a medical determination of incapacity, which involves the attending physician and at least one other physician (also, neither can be the patient-selected health care representative). If the directive has been revoked, there would have to be a court procedure to have the son appointed as guardian.

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It would seem that the scenario you describe is the exact purpose of the document.

But, there may be specific requirements that are needed to become effective. In my personal and recent experience, two letters from people "licensed to practice medicine" attesting to the disability were required, and one had to be from a primary care provider.

Bottom line, read the document - it should tell you when and how it becomes effective.

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No

For two reasons:

  1. A power of attorney allows the attorney to make financial decisions. To make medical decisions you need a guardianship. These are two different things.
  2. A power of attorney automatically lapses when the granger is no longer legally competent (which a dementia suffer may or may not be depending on the severity of the condition) unless it was set up as an enduring power of attorney.

The easiest way to get guardianship is to have the person grant it while they are still legally competent. Failing that, a close relative can apply to the court to be made guardian which may be contested by others (including the hospital). A legally incompetent person without a guardian is a ward of the state and there is usually a government organisation which handles the decisions for them.

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    Ohio allows a medical/healthcare power of attorney. Even if a guardian is appointed, the court has to state that it overrides an existing medical POA.
    – mkennedy
    Mar 31, 2023 at 22:32
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    @Dale M Perhaps I did not state it correctly. I wrote: POA for medical meaning the purpose of the document is to give power to the son for medical decisions. It only goes in effect when the mother cannot make her own decisions. That is, it is durable.
    – Bob
    Mar 31, 2023 at 22:43
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    To back up the OP, I have a durable POA that covers medical and financial. So, your answer is incorrect. Mar 31, 2023 at 23:32
  • Neither of these propositions is commonly true in the U.S., durable powers of attorney for medical care are common in the U.S. (durable jeans it survives the disability of the principal). I write maybe a dozen durable medical powers of attorney for clients each year.
    – ohwilleke
    Apr 1, 2023 at 18:07
  • The main difference between an MPOA and a guardianship is that an MPOA is only effective when the principal is incapacitated in the current moment as visible to the medical provider and that while it grants authority it can't be used to say no to a principal who is able to communicate and appear to have capacity. A guardian, in contrast, may force a ward to, for example, go to a nursing home or not have access to a doubtful treatment.
    – ohwilleke
    Apr 1, 2023 at 18:10

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