Refusing to Give Power of Attorney
“For some reason, my aging parents are stonewalled about signing a healthcare power of attorney. They seem to think that one of them will always be available to take care of the other. As they age, it is becoming more and more apparent that this issue needs to be discussed, but they refuse any attempt on any family member’s part to do this. I believe they view it as a means for someone to take control, thus losing their independence. What would you suggest?”
Answer #1
Unfortunately, if they have capacity, you cannot force them to sign a healthcare power of attorney or take over their decision making authority. Maybe the issue is simply not wanting to discuss it with you. Is there a third person you can enlist to talk with them about this important elder care matter, i.e., member of the clergy or maybe a social worker or care manager?
Sonya Mittelman, Attorney at Law
Bronx, NY 10461
718-863-4647
Answer #2
In Massachusetts and probably other states, if married couples do not have a health care proxy (HCP) in place and one of them needs hospital care the other will have no rights with respect to his or her spouse’s health care needs.
In circumstances where the hospitalized spouse loses competency to decide an emergency, guardianship will be required. The cost will then become large because court action will be required. If these people are hesitant they can name each other as health care agent followed by a trusted child as an alternate. Also they should think about a durable financial power of attorney because a health care proxy only addresses health issues, and if one of them becomes incompetent the other can take over with the financials. Without that document financial institutions would require a Conservatorship– again an expensive proposition. Every person needs to have these 2 documents in place. The fiscal and emotional costs to the family would be far greater than the actual legal costs to retain an attorney to draft them.
Susana Lannik, Attorney at Law
Law Office of Susana Lannik, LLC
Newton, Massachusetts 02458
617-658-2980
www.LannikLaw.com