Health Care Power of Attorney – Warnings

In California, a health care power of attorney is called an “Advance Health Care Directive”.  This important document gives your instructions on a variety of issues, including whether you want “heroic measures” to be taken to keep you alive, and can even give instruction on post-death issues such as cremation or burial, and donation of body parts for research or educational purposes.

So long as you’re mentally capable of making health care decisions then, of course, you continue to do so.  It is only if you become incapacitated that this power of attorney becomes effective.

Similar to powers of attorney for financial matters, your health care directive will name an “agent” to whom you give authority to make medical decisions.  Your agent’s authority is limited to following your written instructions, where applicable.

However, the selection of your agent is of utmost importance.  You should thoroughly discuss the issues with your proposed agent and make sure that s/he agrees to assume the responsibility if called upon.  The selection of an unscrupulous agent can lead to disasterous consequences, including the depletion of your finances.

Here’s a real life story to illustrate:

While Dad was mentally capable, he signed powers of attorney for both financial matters and health care decision making.  As the years went by, Dad developed dementia with sporadic but marked signs of short and long term memory loss.  Eventually, he needed 24 hour companionship care.

Dad had enough money in various investments and bank accounts to pay for in-home caregiving services. These services are very expensive, but he, like most elderly individuals, preferred to remain at home in a familiar and comfortable environment.  Unfortunately, his son had different ideas.   He viewed Dad as a cash cow, and saw no reason why Dad’s money should be used for in-home care and deplete son’s inheritance.

Dad was hospitalized for a brief period and, when released, Son picked him up from the hospital.  However, instead of driving Dad home, Son drove him directly to a nursing home where Son had already arranged for Dad’s placement and paid for the first two month’s stay.  How was Son able to do this without Dad’s permission?  By utilizing the power of attorney for health care, Son convinced the nursing home that he had the authority to have Dad placed there.  Through the financial power of attorney, Son was able to access Dad’s bank accounts and steal his money. 

Again utilizing the health care power of attorney, Son lied to the nursing home staff and told them that Dad has many relatives who have stolen money from him in the past and will try to gain access to Dad again.  He then instructs the staff that Dad is not allowed to have any visitors or telephone communication with anyone except the Son, unless Son pre-approves such communication.  This type of “isolation” is a recurring theme in elder financial abuse cases.

For Son to carry out his plan, he must make sure that all outside contact with Dad is halted; otherwise, a family member or friend could visit Dad, ask questions of the nursing staff, and uncover son’s devious plot of exploitation.

Now that Dad has been warehoused in a nursing home (via the health care power of attorney), Son has free rein to use the financial power of attorney to access all of Dad’s monies. Son can close accounts, open new accounts in his name only, and transfer all of Dad’s monies. Soon, Dad is broke and the nursing home bills will be paid for by Medi-Cal (California).

Sounds incredible, but this is a true story. Fortunately, one of Dad’s other children was able to locate Dad and sought legal representation.  Quickly, a civil lawsuit was filed and the bank and investment companies were instructed to freeze all remaining accounts.  A lis pendens (Notice of Pending Real Property Claim) was also recorded on each of Dad’s properties, thus protecting them from being sold or mortgaged. 

Fortunately, this story had a happy ending.  Dad was removed from his nursing home prison and lived comfortably with one of his other children.  His bank and investment accounts were returned, as well as the real properties.

By this illustration, you can now see that a health care power of attorney is a very important document, not just for medical decision making but for other far-reaching implications as well. 

How does someone get into such as mess in the first place?  By not giving serious consideration to the trustworthiness of the person selected as their agent.  This cannot be overemphasized. 

A power of attorney for health care is an important tool, but it can also be destructively used if placed into the hands of an unscrupulous person.