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?
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
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 If the directive has been revoked, there would have to be a court procedure to have the son appointed as guardian.
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.
For two reasons:
- A power of attorney allows the attorney to make financial decisions. To make medical decisions you need a guardianship. These are two different things.
- 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.