EMS field providers are occasionally confronted in the field with legal documents that allow someone to grant consent for health care on behalf of a patient. These documents can have titles including “Power of Attorney,” “Durable Power of Attorney,” “Health Care Power of Attorney” and others. These documents generally have one thing in common: they permit someone other than the patient to consent for the delivery of health care services. In this “EMS Law Monthly Tip of the Week,” we will identify a few common characteristics of these “POAs” (Powers of Attorney) and give you some tips on how to deal with them in the field.
First, let’s get one important disclaimer out of the way (we are lawyers, after all): state law varies significantly when it comes to Powers of Attorney. Make sure you check with legal counsel familiar with the law in your state to determine the specific rules that apply to you. We are merely providing some general information for educational purposes.
Let’s take a look at some common terminology regarding POAs. The person who executes a POA (the patient) is typically called the “principal” in POA terms. The person to whom the principal gives authority is called the “agent.” Sometimes, the agent is also referred to as the “attorney in fact,” the “health care agent,” or the “proxy.” To keep things simple, we’ll refer to the patient (the maker of the POA) as the “principal” and the person who is given authority to act on the patient’s behalf as the “agent.”
A POA is simply a document that a principal signs and executes for the purpose of granting authority to someone — an agent — to carry out specific tasks on the principal’s behalf. There are three important issues to remember when you encounter a POA in the field. Those issues are:
- When does the POA become effective?
- When does the POA terminate?
- What powers does the POA grant to the agent?
When does the POA Become effective? As for this first issue, POAs can either be immediately effective, effective upon some specified date in time, or effective upon the happening of some future event or contingency. For instance, while the principal needs to be competent to sign and execute a POA, the POA might not kick in until the principal becomes incapacitated at some point in the future. It is necessary to review each POA document individually to determine whether or not it is currently in effect.
When Does the POA terminate? As for this second issue, that’s where the term “durability” comes into play. A “durable” POA simply means that it survives the incapacity of the principal. This means that a POA doesn’t terminate simply because the principal later becomes incompetent (for example, due to a medical or psychological condition). This makes sense, because a principal usually executes a POA for that very reason: to make sure there is someone to handle his or her affairs in the event he or she becomes incapacitated in the future and is unable to make decisions. In some states, POAs are presumed durable unless the POA itself provides otherwise. In other states, the POA must specifically state that it is “durable” in order to survive the incapacity of the principal. Generally, though, the term “durability” doesn’t really effect when the POA first kicks in, but how long it lasts. Some POAs might expire on a specific date or upon the occurrence of a specific event. It is important to check the POA document to make this determination.
What powers does the POA grant to the agent? The third and final issue we will address also happens to be the one where the most variation occurs. POAs can be general (and grant authorization for the agent to do such things as open bank accounts, transact business, etc.) or health care POAs (or both). The principal may grant the agent specific, limited powers (for example, “power to authorize my admission to a nursing home”) or broad, plenary powers (such as “power to consent to any medical or surgical procedure or to authorize my admission at any hospital, nursing home or health care facility.”) Most health care POAs fall into the second category (that is, they are usually more general/plenary in scope). The most important point to remember is that it is usually necessary to review the specific POA document to determine whether or not the agent has been granted the authority to provide medical consent.
Whenever necessary, you may be able to utilize the assistance of your on-line medical control authorities to assist you in making field determinations regarding the validity of a POA. You should also, whenever possible, attempt to obtain a copy of the POA document to keep with your patient care report whenever you have relied on the authority of an agent to provide consent.
Although our discussion deals with the use of POAs in the field setting, these principles also apply to administrative issues as well, such as a request for copies of medical records by an agent.
Remember that this article is meant to provide a general overview of POA issues and not a state-by-state summary of the law. The bottom line is that the drafting of POAs can vary and it’s necessary to review the specific POA to determine whether the principal or the agent calls the shots as far as health care decision making goes.
For other EMS Tips of the Week, visit http://www.pwwemslaw.com/ACTIVE/Tips/TipArchivesDefaultPage.htm.
Courtesy of Page, Wolfberg & Wirth, LLC.
