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Hello, what is the difference between a Health Care Directive

Resolved Question:

Hello, what is the difference between a Health Care Directive and a Health Care Directive with durable power of atty. ?
Submitted: 1 year ago.
Category: Family Law
Expert:  Roger replied 1 year ago.

Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question.

 

A health care directive is a set of written instructions that a person gives that specify provides what actions should be taken for their health if they are no longer able to make decisions on their own due to illness or incapacity. The instructions must be followed as written.

 

In contrast, a health care directive with power of attorney means that someone is appointed as power of attorney (also called a health care proxy) to make decisions on the person's behalf when he/she is incapacitated.

 

Thus, the main difference is that the health care directive has a set list of instructions and the health care directive w/ power of attorney gives the named POA the authority to make decisions for the person.

Customer: replied 1 year ago.
Thank you for the reply. Another question....here is the story and I may want to get a consultation with an atty. My father 77 has difficulty swallowing due to throat cancer in 1994 through the years it has gotten worse. Finally about a month ago he stop communicating via phone insulated himself in the house and was slowly starving to death. Finally I went to see him and took him the the ER and now he is in the hospital. They put a feeding tube in him and most likely will need it the rest of his life as he can't swallow with out asperating.....and his very weak from being malnourished. Mind you he is grumpy as well......he keeps saying he wants to go home....but there is no way at least at this point he can!! The hospital says if he wants to go they must let him!! He can't even walk. I finally convinced him to go to a very nice nursing facilty to at least try to rehabilitate. He agreed but I know in a matter of days he will call a cab or whatever to get out and they must let him go. I am also seeing sings of dementia....little things and I mentioned this to the Dr. He also is demanding his car keys and said this is right! He is so weak like I said and can't even stand up or take care of himself. Today he is being transported to the faciluty and I hope all goes well. I will have to speak with then Dr. There and tell him my concerns. They have already asked for his health care directive....your thoughts?
Expert:  Roger replied 1 year ago.

There is certainly a need for someone to be able to help make decisions for him. HOWEVER, a health care directive must be signed voluntarily by your father, and it doesn't sound like there's any way he would sign anything like this.

If that's the case, then the only thing you could do is file a petition to be appointed as your father's conservator. If you can prove that your father has dementia and cannot attend to his own personal needs, including his medical care, then the court can appoint you as conservator.

Thus, if your father will not sign a health care directive w/ or without a POA, the only thing you can do is file a petition for conservatorship.

Customer: replied 1 year ago.
No I do have his health care directive with power of atty.....
Expert:  Roger replied 1 year ago.

Ok, well that's good!

 

The next issue is whether or not the health care directive says that your father must be incapacitated or mentally incompetent before you can exercise your rights as outlined in the document. Generally, there is a requirement of incapacity or mental incompetence before the authority is envoked.

 

Thus, your father's doctor/s would have to diagnose him with a mental disorder - - like dementia - - before you can take over making his medical decisions.

 

Customer: replied 1 year ago.
Ok..that is what I thought. He would be so angry at me if this was the case......could he take me out of his trust if I were to do such a thing? This scares me.
Expert:  Roger replied 1 year ago.

Well, if he is deemed mentally incompetent, he couldn't perform any legal act - - including making changes to his trust. This is so because someone must be able to know and understand what he/she is doing in order to sign legal documents.

The best thing you could do is IF your father were deemed mentally incompetent, because of dementia, would be to file for conservatorship over him as well. This would allow you to control his affairs, and would prevent any action he may take from being legally enforceable.

Expert:  Roger replied 1 year ago.

Hi -

Please let me know if you have any additional questions. Also, please take time to positively rate our conversation so I may receive credit for my time. Thanks!

Expert:  Roger replied 1 year ago.
Hi

Please let me know if you have any additional questions related to this issue. Also, please positively rate our conversation so that I may receive credit for my research and response.

Thanks,

Kirk
Roger, Attorney
Category: Family Law
Satisfied Customers: 26960
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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