Love Letters: HCPOA, NHDD, TCP...
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It’s April, and where my mind goes in April is to one of the most impactful things that you and I can do for our health and independence. I am talking about the Healthcare Power of Attorney. As a patient advocate who’s seen a lot of scenarios and circumstances, I can tell you that this is my Number One initiative to have in place.
I am talking about this today because April 16 is NHDD, National Healthcare Decisions Day. It’s April 16, every year, and there is some interesting lore behind this national and annual day that calls our attention to the importance of selecting someone who can speak for us if we cannot speak for ourselves.
NHDD was founded in 2008 by attorney Nathan Kottkamp of VA to provide a way for individuals to have education about healthcare decision-making based upon your own values and to communicate them to providers by way of simple, free, and uniform tools (not just forms) to guide the process.
The date was based on the Benjamin Franklin quote that “In this world, nothing is certain except death and taxes.” We ready our taxes each year by the 15th and we can review our health care wishes each year on the 16th. NHDD seeks to normalize this decisions-making, and also the review of your wishes each year, recognizing that the wishes or the people in your life may change.
Those of you who know me will recognize that this kind of thinking is in keeping with my favorite mantra “We can all have a say about how things will go and where we’ll end up.”
Here is one important way to do that. Today I am talking about HCPOA document and choosing your Agent or Proxy. It is part of creating your Advance Directives, however today we are only going to cover the HCPOA decisions.
WHY? To enable someone to speak for you if you are unable to speak for yourself. To carry out your wishes. To have your say.
Don’t put the burden on others when you can guide them through your wishes by way of a neat little process, a discussion, and some documentation.
“It always seems too soon, until it’s too late.”
I love this phrase from The Conversation Project as they address planning. It gets your attention. It draws you in, to check or examine how things are, and to see if there is anything that may be left undone.
Well, we can! Couple that notion with the fact that I hear most older adults declare that as they age they wish to maintain their independence and control... I submit to you that this is one of the most important ways that we can.
As a patient advocate, I want to impress upon anyone who will listen the importance of a HCPOA designation.
Crazy things happen. I used to lecture with a slide that pictured an ED bed and curtain. I would describe the scene - one that could be public - of loved ones on the other side of the curtain, arguing what their mother wanted. It would be a “He said-She said” cluster-discussion, with snippets like “Back in 1986 she told me she wanted...” and a “Naw, Gladys would never want that. I know.”
Here is our chance not to be Gladys nor part of that cluster-conversation! In such conversations there was no way to prove or resolve anything, and all were upset. Gladys was vulnerable. When we guide by way of a HCPOA we are helping ourselves, our providers, and our loved ones.
Let’s go over what a Healthcare Power of Attorney (HCPOA) is.
First, a HCPOA is a thing, a document, and not a person.
It is a document that names someone you trust as your proxy, or agent, to express your wishes and make health care decisions for you if you are unable to speak for yourself.
When you think about it, this is pretty nifty, huh? YOU get to declare your wishes AND choose your person to carry your message. Cool!
Next, a person is not a Power of Attorney. They can be named as an Agent, a proxy, or attorney-in-fact. This means that someone has been designated in the document by the person who is declaring their wishes.
Our language about it all gets murky with multiple monikers and those result in confusion. Agent, proxy... Leave it to law or healthcare to confound things for us end users, eh? Press on.
A small help arrived with that language when some states made a change to the language used. I myself applauded the clarity made with the use of the term “Agent”. (Have you ever heard someone refer to their agent as “my Power of Attorney?” “George is my Power of Attorney,” they’d say. Well, Nancy is not – even with words- giving anyone her power. Nope.
Rather, I will choose and designate you as my agent (with Power of Attorney), not “have you become my power.” Language is significant!
How then do we do all that I am talking about here?
Let’s walk through it together. I am going to provide you with plenty of links in case you want more information, or when it helps to read something written by a different explainer. You might find some What If’s or scenarios you’d not yet planned for, and make a note to incorporate that into your own planning.
My top pick for information and How To’s is: The Conversation Project.
The dry part of this segment may be the state-specific information and forms. Good sources are:
Find advance directives information by state
NIA (National Institute on Aging) In this article there is a free download offering conversation tips, worksheets and more.
Don’t forget the aforementioned TCP, The Conversation Project theconversationproject.org for lots of good information to foster thinking, decisions, and conversations. Check it out!
You might also perform a search, for example you may Google “Find Healthcare POA forms by state.” Also, the AARP website has links to each state. You can search your state’s governmental websites, like the Office of Attorney General or their Department on Aging, too.
While you are there, also become familiar with your state’s nuances or specifics. Each state also has variations, so find out yours:
In some states notarization of POA documents is required.
Some will have witness requirements and whether or not a document must be filed with the courts to become effective.
Find out how to revoke or amend documents if you later wish.
Again, I recommend becoming familiar with your state’s laws so your legal tools can do what you need them to do, when you need them to do it! These are tools – at your disposal – they are there for you to use.
Folks can and do create their own documents (in the states that allow this). It is a personal choice; however, I recommend that we not be penny wise and pound foolish on our tools for that reason. I suggest you seek out an attorney who can discuss with you what is important to you, assess your current or likely situations and advise and customize documents – to you and in your state of residence.
You will be thinking about (and the forms and state’s rules will prompt your thinking) what you want and do not want in terms of care. It might be End of Life decisions, and feeding tube decisions. Do you want a physician to “take all actions to preserve your life”, no matter what condition doing so may leave you living in? Do you want water, food, or to be placed in a medically-induced coma? Under what circumstances?
I used to place a hard NO on the idea of inducing a coma for me; then what I learned and witnessed during the pandemic (aka my life experiences) changed my thinking. For example, I was moved to think differently when I learned of a case where a father placed in a medically-induced coma enabled loved ones to travel and be there at end of life, or to be involved in decisions about moving forward.
Let’s shift now into thinking about who to designate. What kind of candidate will you want?
Many folks struggle with WHO, or even having someone to designate. Solo Agers, for example, may be challenged here. To that I say: I am glad you are here, reading, watching or listening to this segment. I and many helping professionals can help you get busy to get this job done. (Ah, such peace of mind to be had when we get the ol’ legal ducks in a row).
As for the who, stop and watch this 2-minute video. You will no doubt gain clarity here: I LOVE this VIDEO from The Conversation Project: I am going to ensure that the link to the video I am describing is in the email you get, so be sure look for it. This two-minute vid drives home the How and the importance.
When we are thinking about WHO, we are thinking about the BEST FIT for you here. After all, it IS your choice. That best fit may not be a spouse, or the eldest child, or best friend, or even a professional.
You do not have to go with what may be assumed. (My sister had appointed me rather than her husband back in day. She felt at that time that I was a better fit, saying ”Wes would cave to whatever the people in white coats told him to do”).
More NOTs may be your attorney, or employer, or the operator of your care facility. As you consider the people in your life, put this overlay on them as a candidate: Can, and will, this person carry out my wishes?
Want a friendly guide about this process, how to choose and how to document? TCP is again to the rescue with this:
They offer a “Proxy Kit” which is not only a handy tool, it is easy to follow.
Who will speak for you if you are unable to speak for yourself?
Want to ensure ‘Have a say about how things will go and where you’ll end up’?
Learn about this stuff.
What we are really talking about are the 5 D’s:
DECIDE What You Want
DISCUSS What You Want with your candidate(s)
DESIGNATE Your Person, and an alternate, maybe two
DOCUMENT Your Wishes and your designated person(s) legally
DISCUSS again: location of documents, provide them with a copy, give to your providers, upload to any portal or MyChart.
Let us not forget to revisit. This had never occurred to me previously. I had stuff done and was resting on my laurels. Then I realized that I want does and has changed over time. People change (and their suitability or fit for the job). Laws change. Circumstances change. Best to revisit from time to time.
I once attended a lecture by an Elder Law attorney who suggested it was a good idea to tie down the revisiting-part to something that reoccurs. You know, like we are reminded to change the batteries in smoke detectors when we change to Daylight Savings Time, and back again? He shared that he revisits his documents “every election year!” (I wonder if that includes Midterms?).
Once decisions are made and documented we should certainly advise and update our designees also. Talk about their roles, our decisions, and provide them with a copy of your document.
A couple of years ago I was preparing for surgery and an inpatient hospital stay. I held Zoom calls with my agents, made sure they had copies and those documents were uploaded into that portal, and visible to providers. (Yes, I called in and had them pull it up in their system, or I confirmed that they could find and see that POA document while I was in the office for a pre-op appointment).
While in the hospital I also had my Face Sheet with me as did my point person who accompanied me. That sheet specified to locations of the document and my agents’ contact information. (Want a free download? Got to my website and download The Face Sheet Tool, right on the home page).
There’s one more fascinating and behind-the-scenes reason to make your decisions and document your wishes. During my work as a patient advocate I got to see what happens if there is a medical situation with a decision at hand, say, in the hospital.
What happens if there is NO documented decision-maker? I found that most if not all states have addressed this by way of statues that outline a sort of “legal pecking order” for decision making guidance. In NC, where I am from, it goes something like this:
Chapter 32A of the General Statutes discusses the decision maker shall be
Someone holding a valid health care power of attorney (health care agent) to the extent authorized by the power of attorney, unless the court has appointed a guardian for the patient and also suspended authority of the health care agent.
If there is no health care agent as defined in (1), a court-appointed guardian or general guardian.
If there is no guardian as provided in (2), an attorney-in-fact who is granted power over health care decisions by a valid power of attorney.
If there is no attorney-in-fact as provided in (3), the spouse of the patient. (Spouse is # 4, notice! Interesting).
If there is no spouse as provided in (4), a majority of the patient’s reasonably available parents and adult children. (A majority? Invite discord, will ya?)
If there are no reasonably available parents and adult children as provided in (5), then a majority of the patient’s reasonably available adult siblings.
If there are no reasonably available adult siblings as provided in (6), then an individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient and who can reliably convey the patient’s wishes. (How does a hospital provider determine good faith? I have seen evil people masquerading so as to alter -or benefit from - the outcome).
If none of the above are available, the patient’s attending physician may provide medical treatment to the patient without patient’s consent if another physician confirms patient’s condition and necessity for medical treatment provided. However, this confirmation by a second physician is not required if delay caused by obtaining confirmation would endanger the patient’s life or seriously worsen the patient’s condition.
“Whew!” is all I can say, but I am glad someone has thought about what to do if there is no document or designated agent.
Everyone, most especially Solo Agers, are you hearing me? Without a POA document your VIPs who will have your say?
State statues do vary. In SC, where I now reside, the pecking order is a little different.
It goes from: Guardian > designated agent with POA, #3 is Spouse (unless separated or divorced, and they have to find all those papers > then Adult Child > Parent > Adult sibling, > Grandparent or if more than 1 Grandparent a “majority of Grandparents who may be reasonably available” (a majority??? Yikes!) > any other blood relative who is believed to have a close personal relationship > then the physicians.
This kind of thing alone will spur ME into action!
Doesn’t this drive home the fact that we can and must have our say? That we can, and should, give guidance for our providers and designate agents to carry out our documented wishes?
I am not trying to scare you. I AM trying to demonstrate that things in healthcare can quickly get confusing and patients can lose their say. Most importantly, I wish to impress upon you that you have power and control in these kinds of scenarios, and can help others in their jobs too.
Also “most important” in my comments today: there are simple steps to shore up your affairs and get your peace of mind in the process.
Let’s think of simplicity. All this is nothing more than the D’s Process: The D’s are:
DECIDE What You Want
DISCUSS What You Want with your candidate(s)
DESIGNATE Your Person, and an alternate, maybe two
DOCUMENT Your Wishes and your Person(s) legally
DISCUSS again. Revisit again and again.
If I may help you in this process, this is some great work to do inside our single consultation, and y’all know that Triage, and assessment heading to solution is my specialty. Working with you, inside an hour, to get things done and claim that peace of mind.
Think of me on NHDD – April 16. I will be thinking of you and yours.
Nancy Ruffner is a patient advocate who provides strategy for aging, healthcare navigation, and solo aging. Nancy consults with clients in a triage fashion, offering one-hour consultations to find a path, gain a deeper understanding of “how stuff works” in eldercare, or to specifically problem-solve. Schedule your 1-Hour session now, without obligation of commitment or continuing costs. nancyruffner.com.