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Health Dollars & Sense

An Agent Can Voice Your Wishes

May 08, 2000|Bob Rosenblatt

You get into a bad car accident, an ambulance rushes you to the hospital, where you lie in a bed of pain, confused and slipping in and out of consciousness.

You are unable to speak for yourself. Who will fight for you, question the doctors, complain to the nurses, decide on treatments?

There is a way to prepare for such situations. A document known as a Durable Power of Attorney for Health Care enables you to choose someone to act as your agent for health care decisions. Because life is so uncertain and medical treatment so complex, the power of attorney is a vital document for every adult, not just the elderly or infirm.

When individuals are awake and thinking clearly, "they are in charge and can decide what medical treatment they want or don't want," said Ed Long, executive director of Healthcare and Elder Law Programs Corp., a nonprofit organization based in Torrance. But when a person is incapacitated or unable to decide for himself or herself, designating a health care agent is the best way to "end up with the care you wanted even if you can't speak for yourself."

The California Legislature passed a law last year to clarify the authority of health care agents selected through the power of attorney. The law, effective July 1, gives agents the right to hire and fire doctors; select hospitals; approve or reject diagnostic tests, surgeries and medications; and to authorize or refuse feeding patients through tubes or intravenous lines.

The new law also protects health care agents from civil or criminal liability for their actions.

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For most people, the durable power of attorney is a better bet than the "living will," a more narrowly drawn document. Typically, a living will is a set of instructions for doctors that spells out when to avoid prolonging the life of a person who is permanently unconscious or terminally ill.

Many experts believe that the living will is too blunt an instrument for health care decisions that often are complex and delicate in nature. Such documents, they say, don't provide the flexibility needed in these times of rapid advances in medicine that can produce near-miraculous outcomes in patients.

Who should have the authority granted by a power of attorney for health care?

"The logical person is always your spouse," said Ruth Phelps, a Pasadena attorney with a large elder law practice.

After the spouse, a child is the next reasonable choice. If there are several children, parents will often agonize over which one to choose, she noted. It makes sense to pick one child as the primary agent and select another as the alternate. In these days of scattered families, "if you have three children, pick the child in the same time zone you are in," Phelps said. "It is hard enough to get hold of doctors at any time, without having to worry about a three-hour time difference."

If you are unmarried and have no children, the power should be granted to someone who knows you well--someone, for example, whom you would trust with a decision on whether your arm or leg should be amputated.

"It should be someone who knows you well enough to understand the dynamics of your family and when you are upset," Phelps said. "You can say to that person, 'If I am in the hospital, I won't want to see my mother; she upsets me.' " Armed with the power of attorney, your agent can act on the statement and bar your mother or other family members from visiting your hospital room.

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For Ed Long, the issue of trust, rather than family ties, should be the first consideration in selecting an agent. It should be someone "you can communicate with about personal things and who will be assertive on your behalf," he advised. "This isn't automatically your spouse or your nearest child."

Under California law, if someone hasn't selected an agent with power of attorney, the authority goes to the "closest available relative." But the law doesn't make clear who should be given precedence among siblings or parents. When family members disagree, the issue may spark a bitter court battle.

The health care power of attorney should be current. In California, a document signed before 1992 was only valid for seven years. It would be invalid now. Anything signed after 1992 is a permanent document.

Even for valid documents, an annual review is a good idea. Friends move away, marriages dissolve, family members become estranged--and your choice of the person trusted to make tough decisions on your behalf may change. Both Long and Phelps suggest that every adult over age 18 should fill out a durable power of attorney for health care.

Forms are available for $2 from the California Medical Assn. Call (800) 882-1262.

Healthcare and Elder Law Programs Corp. has a workbook, "Personal Thoughts About Medical Treatment and Related Values and Views," available for $4. Write to the organization at 1404 Cravens Ave., Torrance, CA 90501.

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