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Recent Health Care Directives - Proxy Advice

    My Grandaughter was in a horrific car accident last July 2012. She needs a health proxy, what do I have to do to get it? her mother never took care of her, and right now my grand daughter can not talk. Please help me. How can i get a health proxy for my granddaughter who cannot talk?
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    Lawrence C. , Elder Law Attorney answers:
    Your granddaughter need not be able to speak in order to communicate. You should communicate with her in writing. She can provide a healthcare proxy or advanced medical directive to you or someone else after having an opportunity to review the document and "communicate" with you or another advisor.

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    I had been told that a living will expires seven years after being formulated. Does a living will need to be redrawn every seven years? Do they expire?
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    Candice B. , Nurse and Care Manager answers:
    This is a legal question and should be answered by an eldercare attorney. However, there are 2 good reasons to review it: Your health status or wishes may have changed. Today living wills can and should be written much more specifically instead of as a generic document. And secondly, the laws in your state may have changed regarding the verbiage that is currently permitted.
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    Jay F. , Elder Law Attorney answers:
    No

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    My dad is is in a nursing home in New Rochelle NY, while trying to get paper work in order, the social worker at the home requested that we fill out a Surrogate form, pior to filling out the power of attorney form. Where would this form be found? What does the form accomplish? What are the risks?
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    Ronald F. , Elder Law Attorney answers:
    I am not sure what you are referring to when you indicate "Surrogate Form". Please be more specific. There are admission papers, Medicaid applications, health care surrogate forms (i.e. Health Care Proxy).
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    Peter S. , Elder Law Attorney answers:
    I think the social worker is mistaken. I know of no Surrogate 's Court form like that she suggests. The Surrogate' s Court handles estates of deceased persons; nothing to do with signing a power of attorney.

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    My Father was recently admitted and is in ICU. The hospital is saying that if his breathing gets worse they will have to intubate him. He has a living will that states he does not want intubation.
    The ICU claims they will sedate him and intubate him if his oxygen level drops, unless he signs their form. But he has a legal living will from a lawyer? Why does he need to sign their form?
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    William B. , Geriatric Care Manager answers:
    Hello, First of all , let me say how sorry I am to hear of your parent's health decline and also the emotional situation this places on you. Although i am not an attorney,my experience with Living Wills tells me that your father's statement of not want intibation should stand on its own. However, if your father is conscious and cognitive enough to understand his choices, you should once again approach him about his wishes per the Living Will. In essence, is he still of the same mindset. I reiterate again, that his wishes in the framework of a legal document should trump what the Hospital is stating. If the hospital insists on their medial protocol, you can always move your dad to another hospital. I am also curious about what his primary Dr. thinks.
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    Henry C. , Elder Law Attorney answers:
    Many hospitals have a standard form (called a POLST Form) which they require to implement a Living Will. This document is kept with the patient file. It usually is just the procedure they require to implement the intent of the Living Will. Therefore, as long as it states not to intubate your father and there is nothing objectionable in the Form, I suggest signing it.

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    My Dad has a Health Care Proxy in the state of Massachusetts. Is that document good in Connecticut? Do we need to get another one?
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    Julia B. , answers:
    CT will honor properly executed health care directives from another state
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    Carol K. , Elder Law Attorney answers:
    Most states, if not all, give full faith and credit to documents that are valid in their state of origin. Consequently, your Massachusetts Health Care Proxy, if signed by you in the presence of 2 signing witnesses (and notarized if it contains living will language) will be recognized as valid in Connecticut.
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    Alice S. , Elder Law Attorney answers:
    Many state recognize another state's health care proxies. If your Dad has moved to Connecticut you might wish to complete new forms. If you go to the following website you can obtain information about Connecticut Law and sample forms. While your Dan can complete the forms himself, please remember however that along with a Health Care Proxy, a Durable Power of Attorney and HIPAA Release might be appropriate as well as a review of any Wills or Trusts your Dad may have. http://www.ct.gov/ag/lib/ag/health/yourrightstomakehealthcaredecisions2011version.pdf
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    Deborah H. , Elder Law Attorney answers:
    As long as the document is executed with the required formalities under Massachusetts law, it is legal and is able to be used in Connecticut.

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    What is difference between a living will and advance directive? They sound pretty much the same to me. Say a couple has written something similar to a will in their native language Hindi previously, and now they are living in USA. Is it still valid? If not, can advance directive be written in Hindi if the couple expresses their wishes well in Hindi rather than English. How would I find more information about this?
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    Barbara P. , Geriatrician MD answers:
    Advance directive is an umbrella term for any directive about health care in the future – ie health care proxy, living will, DNR, DNI Living will is a statement of your wishes for specific things like resuscitation , feeding tubes etc and it can include naming a person who you trust to make such decisions if you are unable to . Laws governing living wills vary from State to State. In NYS they are not legal documents, however, no doctor has ever been prosecuted for respecting a patient’s living will. Doctors do rely on them as guides for the patient’s wishes for care . Living wills can be written in any language, as an health care proxies. Any hospital should be able to give you more information usually the patient representative.
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    Sonya M. , Elder Law Attorney answers:
    A Living Will is a specific advance directive that gives directions related to life/death decisons. Other advnced directives are Health Care proxys and Powers of Attorney (POA). Documents written outside of the United States may or may not be valid, not because of language but beacause laws vary. Better to rewrite to qualify with New York Law, and yes they maybe written in any language as long as there is a qualified translator, who can state that he or she translated all aspects of the signing or if the other language is only one spoken by everyone present, and in that case should be a translation for a hospital official or the court.
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    Brenda M. , Elder Law Attorney answers:
    I cannot give legal advice in a blog but would be more than happy to help them should they wish to make an appointment.
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    Ronald F. , Elder Law Attorney answers:
    When one refers to an advance directive, they are typically referring to documents indicating one's wishes regarding finances and/or health care in advance of becoming incapacitated. Health care proxies and living wills pertain the health care wishes while powers of attorney deal with financial affairs. As far as a will, each State has requirements regarding wills, i.e. signed by 2 witnesses and a will must conform to the State's requirements in order to be submitted for probate. It is probably best for the couple to execute a will in the State in which they hold property, as probate will be an easier process at the time of death.
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    Janet K. , Geriatric Care Manager answers:
    An advance directive gives more specific powers than the living will. It usually appoints a person to be in charge when the incapacitated person is unable to make a decision for themselves. In New York this needs to be in written form and signed and executed. They should also execute a new will especially if they have property in the US. The advance directive should be translated. Their best bet would be to have an attorney- through the use of a translator, re write their documents to their satisfaction and understanding so that they have fully functional documents here in the US.

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    In a sudden surprise, this past Sat. our mom had a stroke. She has an unsigned power of attorney form delegating my sister, a doctor, as her health care decision maker. Without a signature is this form useful? Can we expect that she will regain competence/cognizance enough to sign? Will that signature be honored?
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    Jonathan F. , Elder Law Attorney answers:
    Unfortunately an unsigned health care power of attorney renders the HCPOA useless. Generally, in North Carolina you need the principal (your Mother) to sign in the presence of 2 witnesses and a Notary. We defer to the patient's doctor to assess her and place their findings in writing. If the doctor states the patient is not competent, then we stop right there. As the attorney we have to be very careful as to who the client is
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    Denise D. , Geriatric Care Manager answers:
    First, I am sorry to hear about your mom suffering a stroke. It is always a difficult thing to go through. As far as the POA/HealthCare Proxy goes, unless it was signed and with a notary seal, it won't do you any good at this point. If there is no POA/HCPOA available, the doctors will mostly rely on the families decisions. The problems arise when the family disagrees. You did not specify, but hopefully this will not be an issue in your family. As far as if your mother will recover, there is no way to know without having much more medical information. MANY people recover very well from strokes, some have some physical disabilities - such as some level of paralysis on one side or another with total cognitive recovery and some never recover completely. Should your mom be in that unfortunate category, your next step would have to be to go to court to have her legally declared incompetent and assign someone to be a guardian. The guardian will be able to take care of her affairs. I hope your mom has a great recovery. Please let me know if I can be of any further assistance.

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    What happens if after putting an advanced care directive into place, my parent has regained consciousness to the degree that they can make medical decisions. Are the decisions made in the document about feeding tubes and intubation still in force? Does the directive automatically become invalid or do we have to go through a process of invalidating the document?
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    Adam R. , Elder Law Attorney answers:
    The general answer, in Maryland, is that when one has lost the ability to give informed consent, the health care agent can then make medical decisions on behalf of the parent. The issue of terminal condition, end stage condition, and persistent vegetative state (i.e. tube feeding or not) are decisions made by the parent that cannot be changed by the health care agent. If, a parent regains the ability for informed consent, then they can make their own health care decisions on their own again. If they want to make decisions that are contrary to the 3 end of life decisions then they may be able to make a new advanced directive. Then the question usually shifts to whether the parent is competent to make said changes. During the whole process, the advanced directive remains valid.
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    Scott M. , Elder Law Attorney answers:
    An advance directive can go in and out of effect based on the parent's health. The typical advance directive says that it only becomes effective when the person is in a terminal state and unable to communicate their own decisions. If the person no longer is in that state, the advance directive becomes dormant unless/until the person enters that state again. Also, if the advance directive has health care power of attorney language (i.e., the person names a health care agent to make decisions for them regardless of whether they are in a terminal state), that POA remains in effect, too. If the question is this - what if the agent tries to make a different decision from the parent under the health care POA - the parent can simply revoke the POA. Otherwise, if there is no conflict among decision-making - if it's just the case that the parent is better and the document doesn't need to be used, it simply remains dormant unless/untill another health crisis occurs. If the parent doesn't want the document in effect any more (such as if it was only executed for a limited circumstance), the parent can sign a document revoking the advance directive and/or health care POA. However, it is a good idea for that document to remain in place in case a health crisis occurs again in the future.

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    If my parent is receiving care in a different state than the one she signed her advance care directive in, is there a possibillity that they will not honor it?
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    Howard K. , Elder Law Attorney answers:
    It depends on your state law & custom if they will honor an out-of-state Living Will/Advance Directive.
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    Richard N. , Elder Law Attorney answers:
    It depends on whether the document has a provision that allows it to be honored in other states. This is known as "portability." It also depends on whether particular provisions of the advanced directive conflict with the new state's laws. If the document is portable and there is no conflict then it should be honored in the new state.
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    Sonya M. , Elder Law Attorney answers:
    Yes, there is a possibility, they will not honor it or even reconize it depending on how different the forms are. I would advise seeking the advice of counsel in the state where he or she is. If that state is now "home state" at least part of the year, I would sign what it wants; if not a new "home state" or if the parent can no longer sign, local counsel can best advise how to proceed.

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    Once an advance care directive is created can it be revoked?
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    Lisa M. , Geriatric Care Manager answers:
    Yes, see as the Elder Law experts have advised below.
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    N. Wallace K. , Geriatric Care Manager answers:
    Once fully signed, the new Georgia Advance Directive automatically revokes a previous Directive, Health Care Proxy and/or Living Will. However, the previous documents remain in full force if a new Directive has not been signed.
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    Victoria C. , Elder Law Attorney answers:
    Yes, the person who executed an advanced directive always has the right to revoke the document by ripping it up or destroying it in another way or by doing another document that supersedes it.
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    Drew E. , Elder Law Attorney answers:
    An advanced health care directive may be revoked or be replaced (which in essence serves as a revocation). The key is for the principal to still retain the necessary capacity for said revocation to be valid.
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    Ruthann L. , Elder Law Attorney answers:
    So long as the person who signed the Advance Directive is competent, he can revoke the document. It can be revoked by destroying the original and all copies, or by signing a Revocation document that specifically refers to the Directive it is revoking.
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    Stephen D. , Elder Law Attorney answers:
    Yes, at any time.
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    Miles H. , Elder Law Attorney answers:
    Yes, an advance directive can be revoked at any time unless the maker of the advance directive has been declared incompetent by a court of law.

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    What is the difference, if any, between a Health Care Proxy and a Medical Power of attorney? Is one better than the other? Are both needed just to be on the safe side?
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    Mark E. , Elder Law Attorney answers:
    Health care documents are state specific. Here in New York we recommend for our clients a Health Care proxy, Living Will and HIPPA forms.
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    Mark E. , Elder Law Attorney answers:
    Health care documents are state specific. In New York we recommend for our clients using a Health Care Proxy, Living will and HIPPA forms.
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    Cormac M. , Elder Law Attorney answers:
    I do not believe medical powers of attorney, as such, are recognized in New York.
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    M. Joseph L. , Elder Law Attorney answers:
    In New York, the healthcare proxy is the only document authorized.

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    What is the difference between a Health Care proxy and a POLST? Does an elder need to have both just to be safe?
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    Linda G. , Geriatric Care Manager answers:
    I recently asked a Florida lawyer just that question. This depends on the state in which the client resides. The lawyer I spoke to was not familiar with it. He was confident with the Health Proxy in Florida.
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    Linda G. , Geriatric Care Manager answers:
    I do not know where the client is located. Few states have it. I used to reside in NYS and they have one in place. I reside in Florida and it is not in that state yet. Both would be good to haveat this point. They are not identical in that the MOLST makes all involved with the client be involved in the care with notation of that moment's treatment, or lack of it.
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    Richard M. , Elder Law Attorney answers:
    For a consult contact me.
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    Barbara P. , Geriatrician MD answers:
    A POLST is a physicians order for managing different medical problems under different circumstances. The POLST acronym stands for Physicians Orders for Life Sustaining Treatment. It needs to be signed by the physician, the patient or the patients health care proxy if the patient does not have signing capacity.
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    Sonya M. , Elder Law Attorney answers:
    I think you mean a MOLST, not sure what a POLST is, a MOLST, however, gives spefic instructions. A Health Care proxy allows a person to make decisons. None for both a HCCP is the one to have.
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    Elliot S. , Elder Law Attorney answers:
    What is a POLST?

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    Can an agent under a health care proxy be legally liable for the decisions he or she makes on the behalf of the elder person receiving the treatment?
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    Rod S. , Elder Law Attorney answers:
    The answer to this question is fact specific and document specific. For example, I often include the following language to clarify this situation: My Health Care Agent shall not incur any personal liability to me or my estate arising from the good faith exercise of discretion or performance of acts and duties relating to my medical treatment and personal care.

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    Once a Health Care Proxy (HCP) has been created, can it be cancelled? If yes, can it just be torn up or is there further documentation that needs to be created to make the cancellation legally valid?
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    Richard M. , Elder Law Attorney answers:
    For a consult contact me.
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    Sonya M. , Elder Law Attorney answers:
    Yes, just tear it up. Or, if given to someone, tell that person it is no longer in effect.
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    Lawrence F. , Elder Law Attorney answers:
    Both health care and financial proxies, directives, powers of attorney, and the like can be cancelled at any time by destroying the document. However, persons who aren't aware of the cancellation may act based on an old copy so it is best to notify all health care providers, financial firms in which you have accounts, etc. if you cancel a document appointing someone else to deal with your affairs. Also, where an appointment has been recorded, the cancellation also should be recorded.
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    Rosemarie R. , Geriatric Care Manager answers:
    A health care proxy can always be changed as long as the person has the mental capacity to do so. I would think establishing a new one with a more current date would be enough.
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    Maryann P. , Geriatric Care Manager answers:
    As long as the person is competent, a new health care proxy can and should be established. This is similiar to a POA. There may be more than one copy of the document. Tearing it up destroys the existing document only. Hospitals, for instance, now keep them on file when a patient is admitted.
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    Jordana S. , Geriatric Care Manager answers:
    Relationships are always changing so HCP can change as well. As long as the iindividual is mentally competent a new HCP form can be completed.

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    Who finally decides when elder is unable to make decisions on their behalf and it is time for the agent to take over the decision making under the Health Care proxy?
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    John G. , Elder Law Attorney answers:
    A licensed physician in Mass.
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    Kimberly K. , Elder Law Attorney answers:
    A primary care doctor, or other treating doctor during a hospitalization. A notation in the medical chart is typical. If necessary, the Proxy can request either a copy of the note or a more formal letter indicating the activation of the document.
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    Jennifer D. , Elder Law Attorney answers:
    By law, the determination of the agent's authority under the health care proxy is made by the person's attending physician (the doctor at the hospital)
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    Margot B. , Elder Law Attorney answers:
    Their attending physician.
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    Frank B. , Geriatric Care Manager answers:
    Re; Health Care Proxies(HCP) In Massachusetts it the decision in writting by a physician to determine that an existing and appropriate HCP should be implemented.
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    Celeste R. , Geriatric Care Manager answers:
    The primary MD, or psychiatrist, is the only person who can decide if a person is competent; or has capacity. If guardianship is pursued, an MD is consulted for their evaluation; and the court decides if guardianship is to be granted. Hope this information is helpful!
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    Stephen S. , Elder Law Attorney answers:
    All the prior answers are correct, possibly. However, the question asked who "finally decides"? if the principal, the person who signed the health care proxy, disagrees with the physician's assessment or the agent, the court finally decides. Only the court has final authority.
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    Kevin D. , Elder Law Attorney answers:
    The treating physician
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    Susan S. , Elder Law Attorney answers:
    Under the provisions of the Massachusetts statute governing health care proxies, the determination that the elder lacks the capacity to make health care decisions is made by the attending physician. The determination is made in writing and is entered in the elder's permanent medical record.
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    Dennis M. , Elder Law Attorney answers:
    If you are speaking of a health care proxy or a durable power of attorney for health care decisions, it is most likely a physician who is uncomfortable that the patient cannot understand the explanation. Some documents include a decision making process; i.e., a spouse and a physician, a majority of the children and a physician, or two physicians.
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    Patricia B. , Elder Law Attorney answers:
    Usually, two licensed physicians, primary and a geriatric psychiatrist, make this decision after an examination of the person.
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    Kristine R. , Elder Law Attorney answers:
    The physician will make the determination.
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    Ramsey B. , Elder Law Attorney answers:
    Thank you for your question . The simple answer is that the treating physician makes the determination as whether a patient is competent to make his/her own health care decisions.
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    John T G. , Elder Law Attorney answers:
    In addition to the treating physician, the Massachusetts Probate Court and the elder herself can decide that the Health Care Proxy take effect. In our experience, it is best to have an experienced elder law attorney engage the elder and the elder's family in a meaningful discussion of all the decisions that need to be made. Feel free to visit my website for a large directory of relevant elder care resources.
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    Michael C. , Elder Law Attorney answers:
    Treating physician/PCP will determine when Health Care Proxy should be invoked.
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    Sasha G. , Elder Law Attorney answers:
    Under Massachusetts law, the treating physician makes an assessment of the elder's capacity. If she is found to be incapacitated, the physician must enter a note into her medical chart and give her a copy of that same note. This note activates the health care proxy. I hope this helps. Please feel free to contact me if you need further assistance.

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    Can I use a Health Care proxy to express my wishes about organ donation?
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    Daniel R. , Elder Law Attorney answers:
    The short answer is-yes. The longer explanation is that you can also limit the body parts you wish to donate and for what purpose. the most important point is make sure you clearly express that you do not wish to be an organ or tissue donor, otherwise, your fiduciary has the implied authority to make you a donor. See the Missouri Bar association brochure which contains a Durable Power of Attorney for Health Care Decisions form and a Health Care Directive which provides the various options. There is also a sample HIPAA Release of Information form on the bach cover of the booklet. The forms can also be down loaded from the State of Missouir website. Call and schedule an appointment if i can be of further assistance.
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    Kristi V. , Elder Law Attorney answers:
    The Illinois Statutory Power of Attorney form (PDF) speciffically addresses organ donation. You may download the form on the Illinois Department of Aging website.
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    Leonard B. , Elder Law Attorney answers:
    The IL Statutory Short Form Power of Attorney for Health Care specifically allows you to make choices regarding organ donation. You can agree to the donation of some or all of your organs or you can refuse donations. Your agent should know your wishes. If you want to take a further step you can agree to donate your entire body to science - in that case you should contact a medical school of your choice - they have specific rules for that purpose. If you sign the donor form on your IL driver's license your agent will not be able to object to the organ donations.
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    Martha B. , Elder Law Attorney answers:
    Yes, if your health care power of attorney specifically gives your agent that power.

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    Can I appoint more than one person to be my agent? For example, if I have two children can I appoint them both of them to be my agents?
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    Jim M. , Geriatric Care Manager answers:
    you can appoint more than one agent, but I suggest that you don't. At a time of crisis. more than one primary agent can make consensus difficult. Forms allow you to appoint a primary agent and one or more secondary agents. If you are worried about "playing favorites" and hurting someone feelings...have one child be the primary on your health care power and the other the primary on your assets power of attorney
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    J. S. , Elder Law Attorney answers:
    Yes you can list multiple Co-Agents to collectively make decisions on your behalf.

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    My mother is refusing to assign a medical proxy if anything were to happen. I have a brother and I am worried this might cause issues in the family. What should I do?
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    Deborah H. , Elder Law Attorney answers:
    Assuming your mother is competent there is nothing that you can do if she does not wish to delegate authority to another. In Connecticut, C.G.A.Section 19a-571 provides that: "If the wishes of the patient have not been expressed in a living will the attending physician shall determine the wishes of the patient by consulting any statement made by the patient directly to the attending physician and, if available, the patient's health care representative, the patient's next of kin, the patient's legal guardian or conservator . . . and any other person to whom the patient has communicated his wishes, if the attending physician has knowledge of such person." Although this provision has to do with end-of-life decisions and not everyday health care decisions, I am hopeful that you find this useful.
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    Jeffrey A. , Elder Law Attorney answers:
    It also depends on what state your mother lives in. If your mother lives in NY, for example, the NY Family Health Care Decisions Act of 2010 allows a patient’s family member (in a certain order of priority) or close friend to make health care decisions for the patient in the event he or she does not have the capacity to make such decisions for himself or herself, and did not previously appoint a health care agent pursuant to a health care proxy or other advance directive. The order of priority in which people will be authorized pursuant to the Act to make your mother's health care decisions is: First, a court-appointed guardian, if there is one. Then, the spouse or domestic partner. Then, an adult child. Then, a parent. Then, a brother or sister. Then, a close friend. So, while nothing herein can be construed as the giving of legal advice, be aware that there may be alternative approaches to accomplishing your desired goal. However, you should speak with a qualified Elder Care attorney to make sure the Act applies to your mother, or if there is anything else you can do to best protect her.
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    Sonya M. , Elder Law Attorney answers:
    I agree with Brian, if your mother has capacity, there is nothing you can do. Maybe try explaining to her that this does not prevent her from making decisons now while she can, it is a just in case she cannot
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    Cheryl A A. , Nurse and Care Manager answers:
    A good place to start is to try to determine why your mother won't sign a proxy. Many people don't understand the purpose of them, thinking that they are signing over their independence and financial pursestrings. I always encourage people that a medical proxy gives them more control over their healthcare decision making, when they designate a trusted person who knows their healthcare wishes. Hope this helps!
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    Brian S. , Elder Law Attorney answers:
    If your mother has the capacity to to make her own decisions then you need to respect her decision not to execute an advanced directive. If on the other hand you believe that she may not have full capacity, you can pursue a guardianship. You will likely need to contact a local attorney.

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