Anddouglas Mossman, MD

Dear Dr. Mossman,

At the hospital where I serve as the psychi­atric consultant, a medical team asked me to evaluate a patient’s capacity to designate a new power of attorney (POA) for health care. The patient’s relatives want the change because they think the current POA—also a relative—is stealing the patient’s funds. The contentious family situation made me wonder: What legal risks might I face after I assess the patient’s capacity to choose a new POA?

Submitted by “Dr. P”

As America’s population ages, situa­tions like the one Dr. P has encoun­tered will become more common. Many variables—time constraints, patients’ cognitive impairments, lack of prior rela­tionships with patients, complex medical situations, and strained family dynamics— can make these clinical situations complex and daunting.

Dr. P realizes that feuding relatives can redirect their anger toward a well-meaning physician who might appear to take sides in a dispute. Yet staying silent isn’t a good option, either: If the patient is being mis­treated or abused, Dr. P may have a duty to initiate appropriate protective action.

In this article, we’ll respond to Dr. P’s question by examining these topics:
   • what a POA is and the rationale for having one
   • standards for capacity to choose a POA
   • characteristics and dynamics of poten­tial surrogates
   • responding to possible elder abuse.

Surrogate decision-makers
People can lose their decision-making capacity because of dementia, acute or chronic illness, or sudden injury. Although autonomy and respecting decisions of mentally capable people are paramount American values, our legal system has several mechanisms that can be activated on behalf of people who have lost their decision-making capabilities.

When a careful evaluation suggests that a patient cannot make informed medical decisions, one solution is to turn to a sur­rogate decision-maker whom the patient previously has designated to act on his (her) behalf, should he (she) become inca­pacitated. A surrogate can make decisions based on the incapacitated person’s cur­rent utterances (eg, expressions of pain), previously expressed wishes about what should happen under certain circum­stances, or the surrogate’s judgment of the person’s best interest.¹

States have varied legal frameworks for establishing surrogacy and refer to a sur­rogate using terms such as proxy, agent, attorney-in-fact, and power of attorney.² POA responsibilities can encompass a broad array of decision-making tasks or can be limited, for example, to handling banking transactions or managing estate planning.^3,4 A POA can be “durable” and grant lasting power regardless of disability, or “spring­ing” and operational only when the desig­nator has lost capacity.

A health care POA designates a substi­tute decision-maker for medical care. The Patient Self-Determination Act and the Joint Commission obligate health care pro­fessionals to follow the decisions made by a legally valid POA. Generally, providers who follow a surrogate’s decision in good faith have legal immunity, but they must challenge a surrogate’s decision if it devi­ates widely from usual protocol.²

Legal standards
Dr. P received a consultation request that asked whether a patient with compro­mised medical decision-making powers nonetheless had the current capacity to choose a new POA.

To evaluate the patient’s capacity to des­ignate a new POA, Dr. P must know what having this capacity means. What deter­mines if someone has the capacity to des­ignate a POA is a legal matter, and unless Dr. P is sure what the laws in her state say about this, she should consult a lawyer who can explain the jurisdiction’s applicable legal standards to her.⁵

The law generally presumes that adults are competent to make health care decisions, including decisions about appointing a POA.⁵ The law also recognizes that people with cog­nitive impairments or mental illnesses still can be competent to appoint POAs.⁴

Most states don’t have statutes that define the capacity to appoint a health care POA. In these jurisdictions, courts may apply standards similar to those concerning competence to enter into a contract.⁶Table 1 describes criteria in 4 states that do have statutory provisions concerning compe­tence to designate a health care POA.

Approaching the evaluation
Before evaluating a person’s capacity to designate a POA, you should first under­stand the person’s medical condition and learn what powers the surrogate would have. A detailed description of the evalu­ation process lies beyond the scope of this article. For more information, please con­sult the structured interviews described by Moye et al⁴ and Soliman’s guide to the evaluation process.⁷

In addition to examining the patient’s psychological status and cognitive capacity, you also might have to consider contextual variables, such as:
   • potential risks of not allowing the appointment of POA, including a delay in needed care
   • the person’s relationship to the pro­posed POA
   • possible power imbalances or evi­dence of coercion
   • how the person would benefit from having the POA.⁸

 

People who have good marital or parent-child relationships are more likely to select loved ones as their POAs.⁹ Family mem­bers who have not previously served as surrogates or have not had talked with their loved ones about their preferences feel less confident exercising the duties of a POA.¹⁰ An evaluation, therefore, should consider the prior relationship between the designator and proposed surrogate, and particularly whether these parties have dis­cussed the designator’s health care prefer­ences. Table 2 lists potential pitfalls in POA evaluations.^{2,4,5,8,11-13,16}

Responding to abuse
Accompanying the request for Dr. P’s evaluation were reports that the current POA had been stealing the patient’s funds. Financial exploitation of older people is not a rare phenomenon.^14,15 Yet only about 1 in 25 cases is reported,^16,17 and physicians dis­cover as few as 2% of all reported cases.¹⁵

Many variables—the stress of the situation,⁸ pre-existing relationship dynamics,¹⁸ and caregiver psychopathology¹¹—lead POAs to exploit their designator. Sometimes, family members believe that they are enti­tled to a relative’s money because of real or imagined transgressions¹⁹ or because they regard themselves as eventual heirs to their relative’s estate.¹⁶ Some desig­nated POAs use designators’ funds sim­ply because they need money. Kemp and Mosqueda²⁰ have developed an evaluation framework for assessing possible financial abuse (Table 3).

Although reporting financial abuse can strain alliances between patients and their families, psychiatrists bear a responsibil­ity to look out for the welfare of their older patients.⁸ Indeed, all 50 states have elder abuse statutes, most of which mandate reporting by physicians.²¹

Suspicion of financial abuse could indi­cate the need to evaluate the susceptible person’s capacity to make financial deci­sions.¹² Depending on the patient’s circum­stances and medical problems, further steps might include:
   • contacting proper authorities, such as Adult Protective Services or the Department of Human Services
   • contacting local law enforcement
   • instituting procedures for emergency guardianship
   • arranging for more in-home services for the patient or recommending a higher level of care
   • developing a treatment plan for the patient’s medical and psychiatric problems
   • communicating with other trusted family members.^12,18

 

Bottom Line
Evaluating the capacity to appoint a power of attorney (POA) often requires awareness of social systems, family dynamics, and legal requirements, combined with the psychiatric data from a systematic individual assessment. Evaluating psychiatrists should understand what type of POA is being considered and the applicable legal standards in the jurisdictions where they work.

 

Disclosures
The authors report no financial relationships with any company whose products are mentioned in this article or with manufacturers of competing products.

Dear Dr. Mossman,

At the hospital where I serve as the psychi­atric consultant, a medical team asked me to evaluate a patient’s capacity to designate a new power of attorney (POA) for health care. The patient’s relatives want the change because they think the current POA—also a relative—is stealing the patient’s funds. The contentious family situation made me wonder: What legal risks might I face after I assess the patient’s capacity to choose a new POA?

Submitted by “Dr. P”

As America’s population ages, situa­tions like the one Dr. P has encoun­tered will become more common. Many variables—time constraints, patients’ cognitive impairments, lack of prior rela­tionships with patients, complex medical situations, and strained family dynamics— can make these clinical situations complex and daunting.

Dr. P realizes that feuding relatives can redirect their anger toward a well-meaning physician who might appear to take sides in a dispute. Yet staying silent isn’t a good option, either: If the patient is being mis­treated or abused, Dr. P may have a duty to initiate appropriate protective action.

In this article, we’ll respond to Dr. P’s question by examining these topics:
   • what a POA is and the rationale for having one
   • standards for capacity to choose a POA
   • characteristics and dynamics of poten­tial surrogates
   • responding to possible elder abuse.

Surrogate decision-makers
People can lose their decision-making capacity because of dementia, acute or chronic illness, or sudden injury. Although autonomy and respecting decisions of mentally capable people are paramount American values, our legal system has several mechanisms that can be activated on behalf of people who have lost their decision-making capabilities.

When a careful evaluation suggests that a patient cannot make informed medical decisions, one solution is to turn to a sur­rogate decision-maker whom the patient previously has designated to act on his (her) behalf, should he (she) become inca­pacitated. A surrogate can make decisions based on the incapacitated person’s cur­rent utterances (eg, expressions of pain), previously expressed wishes about what should happen under certain circum­stances, or the surrogate’s judgment of the person’s best interest.¹

States have varied legal frameworks for establishing surrogacy and refer to a sur­rogate using terms such as proxy, agent, attorney-in-fact, and power of attorney.² POA responsibilities can encompass a broad array of decision-making tasks or can be limited, for example, to handling banking transactions or managing estate planning.^3,4 A POA can be “durable” and grant lasting power regardless of disability, or “spring­ing” and operational only when the desig­nator has lost capacity.

A health care POA designates a substi­tute decision-maker for medical care. The Patient Self-Determination Act and the Joint Commission obligate health care pro­fessionals to follow the decisions made by a legally valid POA. Generally, providers who follow a surrogate’s decision in good faith have legal immunity, but they must challenge a surrogate’s decision if it devi­ates widely from usual protocol.²

Legal standards
Dr. P received a consultation request that asked whether a patient with compro­mised medical decision-making powers nonetheless had the current capacity to choose a new POA.

To evaluate the patient’s capacity to des­ignate a new POA, Dr. P must know what having this capacity means. What deter­mines if someone has the capacity to des­ignate a POA is a legal matter, and unless Dr. P is sure what the laws in her state say about this, she should consult a lawyer who can explain the jurisdiction’s applicable legal standards to her.⁵

The law generally presumes that adults are competent to make health care decisions, including decisions about appointing a POA.⁵ The law also recognizes that people with cog­nitive impairments or mental illnesses still can be competent to appoint POAs.⁴

Most states don’t have statutes that define the capacity to appoint a health care POA. In these jurisdictions, courts may apply standards similar to those concerning competence to enter into a contract.⁶Table 1 describes criteria in 4 states that do have statutory provisions concerning compe­tence to designate a health care POA.

Approaching the evaluation
Before evaluating a person’s capacity to designate a POA, you should first under­stand the person’s medical condition and learn what powers the surrogate would have. A detailed description of the evalu­ation process lies beyond the scope of this article. For more information, please con­sult the structured interviews described by Moye et al⁴ and Soliman’s guide to the evaluation process.⁷

In addition to examining the patient’s psychological status and cognitive capacity, you also might have to consider contextual variables, such as:
   • potential risks of not allowing the appointment of POA, including a delay in needed care
   • the person’s relationship to the pro­posed POA
   • possible power imbalances or evi­dence of coercion
   • how the person would benefit from having the POA.⁸

 

People who have good marital or parent-child relationships are more likely to select loved ones as their POAs.⁹ Family mem­bers who have not previously served as surrogates or have not had talked with their loved ones about their preferences feel less confident exercising the duties of a POA.¹⁰ An evaluation, therefore, should consider the prior relationship between the designator and proposed surrogate, and particularly whether these parties have dis­cussed the designator’s health care prefer­ences. Table 2 lists potential pitfalls in POA evaluations.^{2,4,5,8,11-13,16}

Responding to abuse
Accompanying the request for Dr. P’s evaluation were reports that the current POA had been stealing the patient’s funds. Financial exploitation of older people is not a rare phenomenon.^14,15 Yet only about 1 in 25 cases is reported,^16,17 and physicians dis­cover as few as 2% of all reported cases.¹⁵

Many variables—the stress of the situation,⁸ pre-existing relationship dynamics,¹⁸ and caregiver psychopathology¹¹—lead POAs to exploit their designator. Sometimes, family members believe that they are enti­tled to a relative’s money because of real or imagined transgressions¹⁹ or because they regard themselves as eventual heirs to their relative’s estate.¹⁶ Some desig­nated POAs use designators’ funds sim­ply because they need money. Kemp and Mosqueda²⁰ have developed an evaluation framework for assessing possible financial abuse (Table 3).

Although reporting financial abuse can strain alliances between patients and their families, psychiatrists bear a responsibil­ity to look out for the welfare of their older patients.⁸ Indeed, all 50 states have elder abuse statutes, most of which mandate reporting by physicians.²¹

Suspicion of financial abuse could indi­cate the need to evaluate the susceptible person’s capacity to make financial deci­sions.¹² Depending on the patient’s circum­stances and medical problems, further steps might include:
   • contacting proper authorities, such as Adult Protective Services or the Department of Human Services
   • contacting local law enforcement
   • instituting procedures for emergency guardianship
   • arranging for more in-home services for the patient or recommending a higher level of care
   • developing a treatment plan for the patient’s medical and psychiatric problems
   • communicating with other trusted family members.^12,18

 

Bottom Line
Evaluating the capacity to appoint a power of attorney (POA) often requires awareness of social systems, family dynamics, and legal requirements, combined with the psychiatric data from a systematic individual assessment. Evaluating psychiatrists should understand what type of POA is being considered and the applicable legal standards in the jurisdictions where they work.

 

Disclosures
The authors report no financial relationships with any company whose products are mentioned in this article or with manufacturers of competing products.

Dear Dr. Mossman,

At the hospital where I serve as the psychi­atric consultant, a medical team asked me to evaluate a patient’s capacity to designate a new power of attorney (POA) for health care. The patient’s relatives want the change because they think the current POA—also a relative—is stealing the patient’s funds. The contentious family situation made me wonder: What legal risks might I face after I assess the patient’s capacity to choose a new POA?

Submitted by “Dr. P”

As America’s population ages, situa­tions like the one Dr. P has encoun­tered will become more common. Many variables—time constraints, patients’ cognitive impairments, lack of prior rela­tionships with patients, complex medical situations, and strained family dynamics— can make these clinical situations complex and daunting.

Dr. P realizes that feuding relatives can redirect their anger toward a well-meaning physician who might appear to take sides in a dispute. Yet staying silent isn’t a good option, either: If the patient is being mis­treated or abused, Dr. P may have a duty to initiate appropriate protective action.

In this article, we’ll respond to Dr. P’s question by examining these topics:
   • what a POA is and the rationale for having one
   • standards for capacity to choose a POA
   • characteristics and dynamics of poten­tial surrogates
   • responding to possible elder abuse.

Surrogate decision-makers
People can lose their decision-making capacity because of dementia, acute or chronic illness, or sudden injury. Although autonomy and respecting decisions of mentally capable people are paramount American values, our legal system has several mechanisms that can be activated on behalf of people who have lost their decision-making capabilities.

When a careful evaluation suggests that a patient cannot make informed medical decisions, one solution is to turn to a sur­rogate decision-maker whom the patient previously has designated to act on his (her) behalf, should he (she) become inca­pacitated. A surrogate can make decisions based on the incapacitated person’s cur­rent utterances (eg, expressions of pain), previously expressed wishes about what should happen under certain circum­stances, or the surrogate’s judgment of the person’s best interest.¹

States have varied legal frameworks for establishing surrogacy and refer to a sur­rogate using terms such as proxy, agent, attorney-in-fact, and power of attorney.² POA responsibilities can encompass a broad array of decision-making tasks or can be limited, for example, to handling banking transactions or managing estate planning.^3,4 A POA can be “durable” and grant lasting power regardless of disability, or “spring­ing” and operational only when the desig­nator has lost capacity.

A health care POA designates a substi­tute decision-maker for medical care. The Patient Self-Determination Act and the Joint Commission obligate health care pro­fessionals to follow the decisions made by a legally valid POA. Generally, providers who follow a surrogate’s decision in good faith have legal immunity, but they must challenge a surrogate’s decision if it devi­ates widely from usual protocol.²

Legal standards
Dr. P received a consultation request that asked whether a patient with compro­mised medical decision-making powers nonetheless had the current capacity to choose a new POA.

To evaluate the patient’s capacity to des­ignate a new POA, Dr. P must know what having this capacity means. What deter­mines if someone has the capacity to des­ignate a POA is a legal matter, and unless Dr. P is sure what the laws in her state say about this, she should consult a lawyer who can explain the jurisdiction’s applicable legal standards to her.⁵

The law generally presumes that adults are competent to make health care decisions, including decisions about appointing a POA.⁵ The law also recognizes that people with cog­nitive impairments or mental illnesses still can be competent to appoint POAs.⁴

Most states don’t have statutes that define the capacity to appoint a health care POA. In these jurisdictions, courts may apply standards similar to those concerning competence to enter into a contract.⁶Table 1 describes criteria in 4 states that do have statutory provisions concerning compe­tence to designate a health care POA.

Approaching the evaluation
Before evaluating a person’s capacity to designate a POA, you should first under­stand the person’s medical condition and learn what powers the surrogate would have. A detailed description of the evalu­ation process lies beyond the scope of this article. For more information, please con­sult the structured interviews described by Moye et al⁴ and Soliman’s guide to the evaluation process.⁷

In addition to examining the patient’s psychological status and cognitive capacity, you also might have to consider contextual variables, such as:
   • potential risks of not allowing the appointment of POA, including a delay in needed care
   • the person’s relationship to the pro­posed POA
   • possible power imbalances or evi­dence of coercion
   • how the person would benefit from having the POA.⁸

 

People who have good marital or parent-child relationships are more likely to select loved ones as their POAs.⁹ Family mem­bers who have not previously served as surrogates or have not had talked with their loved ones about their preferences feel less confident exercising the duties of a POA.¹⁰ An evaluation, therefore, should consider the prior relationship between the designator and proposed surrogate, and particularly whether these parties have dis­cussed the designator’s health care prefer­ences. Table 2 lists potential pitfalls in POA evaluations.^{2,4,5,8,11-13,16}

Responding to abuse
Accompanying the request for Dr. P’s evaluation were reports that the current POA had been stealing the patient’s funds. Financial exploitation of older people is not a rare phenomenon.^14,15 Yet only about 1 in 25 cases is reported,^16,17 and physicians dis­cover as few as 2% of all reported cases.¹⁵

Many variables—the stress of the situation,⁸ pre-existing relationship dynamics,¹⁸ and caregiver psychopathology¹¹—lead POAs to exploit their designator. Sometimes, family members believe that they are enti­tled to a relative’s money because of real or imagined transgressions¹⁹ or because they regard themselves as eventual heirs to their relative’s estate.¹⁶ Some desig­nated POAs use designators’ funds sim­ply because they need money. Kemp and Mosqueda²⁰ have developed an evaluation framework for assessing possible financial abuse (Table 3).

Although reporting financial abuse can strain alliances between patients and their families, psychiatrists bear a responsibil­ity to look out for the welfare of their older patients.⁸ Indeed, all 50 states have elder abuse statutes, most of which mandate reporting by physicians.²¹

Suspicion of financial abuse could indi­cate the need to evaluate the susceptible person’s capacity to make financial deci­sions.¹² Depending on the patient’s circum­stances and medical problems, further steps might include:
   • contacting proper authorities, such as Adult Protective Services or the Department of Human Services
   • contacting local law enforcement
   • instituting procedures for emergency guardianship
   • arranging for more in-home services for the patient or recommending a higher level of care
   • developing a treatment plan for the patient’s medical and psychiatric problems
   • communicating with other trusted family members.^12,18

 

Bottom Line
Evaluating the capacity to appoint a power of attorney (POA) often requires awareness of social systems, family dynamics, and legal requirements, combined with the psychiatric data from a systematic individual assessment. Evaluating psychiatrists should understand what type of POA is being considered and the applicable legal standards in the jurisdictions where they work.

 

Disclosures
The authors report no financial relationships with any company whose products are mentioned in this article or with manufacturers of competing products.