Power of Attorney and the Right to Decline Aid

I get questions daily from readers and earlier this week I received a great EMS related question that I wanted to share. Here it is:

Last night we were called to a patient with altered mental status. We ended up restraining the patient to transport her. All of the members of the crew had less than a year of experience, and for most of us, it was the first time we’d had to restrain a patient. Considering that, things went remarkably well, although we have a lot to talk about over the next few days.

However, there’s one question that we haven’t been able to come up with an answer to. At some point during the restraint process, the patient’s sister showed up. She claimed she had power of attorney over our patient. Discussing the situation afterward, the question arose – what if the sister had told us that she didn’t want the patient transported, would we have had to stop restraining the patient? What sort of authority would she have in that situation?

A couple of caveats up front. First, there is no simple answer to your question. I wish there was but there’s not. Second, there are some state-to-state differences in the law related to powers of attorney and other documents, so while I can give you a general approach, you should check with local counsel and/or your state health department to confirm that status of the law in your state.

Next, we need to cover some background info on powers of attorney.

A power of attorney is essentially a formal authorization that allows one person to act on another person’s behalf. For a power of attorney to be valid the person creating it must be competent when it is signed. This fact limits the use of a power of attorney for people who lack mental capacity, such as someone in a coma or with dementia. For these patients, a guardianship would be required.

All powers of attorney are not created equal. A normal power of attorney expires when a person becomes mentally incapacitated. In order for a power of attorney to “survive” a patient losing mental capacity it must be a “durable power of attorney”.

Powers of attorney may be for a specific purpose (such as to sign documents at a real estate closing) or general (to make any decision that the person could make themselves). For a power of attorney to cover medical decision-making it must specify that it is intended to cover medical decisions. It must also be of the durable type because it is intended to remain in effect when the patient loses the ability to make their own desicions – (ie. if the patient is conscious and able to consent or decline, there is no need for a power of attorney).

Most if not all states have laws governing such medical powers of attorney, requiring them to be a “durable power of attorney for health care decisions” (DPAHCD or DPA), in the form required by state law.  Such DPAs allow a person to designate someone to make health care decisions for them, and the specify whether they want certain types of life saving measures employed. (Note: Some states may refer to these as living wills, and a few states actually have DPAHCD and living wills).

Typically, a DPA requires 2 witnesses, or perhaps 2 witnesses and a notary – but that varies from state to state. States also limit who may serve as a witness for a DPA. For example, relatives of the person or employees of a health care facility where the person resides cannot serve as witnesses.

With that as a background we turn to the facts of the case. The sister arrives at the scene, claiming to possess a power of attorney, and orders EMS personnel to stop restraining the patient.

 Assuming the sister has a signed original DPA for the patient with her and it is valid under state law – she has the legal authority to make decisions for the patient. She can consent to aid or decline aid the same as the patient could.

The problem in the EMS real world is how do you know she is the person named in the DPA, that the patient is the one who signed the DPA, and that the DPA was validly executed when the named person was competent? The reality is, we can’t.

We run into this same dilemma with Do Not Resuscitate orders, with one big exception. Most states provide immunity to us for following a DNR order in good faith even if it is later determined to be invalid.  Many states offer similar protection for those who rely on a DPA that appears to be valid on its face, but this varies from state to state. Here is the Rhode Island version:

 § 23-4.10-10  Presumption of validity of durable power of attorney. – A physician or health care provider or emergency medical services personnel may presume, in the absence of actual notice to the contrary, that a durable power of attorney complies with the requirements of this chapter and is valid.

This is a very difficult area, beyond the scope of what we can fully cover here. If you suspect fraud or misconduct on the part of the person serving as the attorney in fact, police assistance should be requested to help sort things out. Med control may also be of assistance in sorting through the details of cases involving DPAs because doctors deal with DPAs on a regular basis. 

If you can get past that issue – the next question is why does the patient need medical attention in the first place? If it is solely due to altered mental status (AMS), then the sister’s decision to decline aid makes sense, assuming she will take care of her. Since you really don’t have an underlying reason to treat/transport, then the sister’s decision should raise no alarms or concerns.

 However if the patient has an underlying medical condition (pneumonia, chest pains, trauma, etc.), this situation becomes much more serious.  Just as we have an obligation to ensure that a patient who wishes to decline aid does so knowingly, we have the same obligation to explain the risks of declining aid and the benefits of accepting aid to the sister. The process must be documented – and honestly – I  would be pouring on the risks of declining aid to the sister and making it clear that she is taking on a huge responsibility (civil and perhaps criminal) if she chooses to decline aid for her sister. Putting it in writing will also emphasize to the sister that she is personally on the hook if something bad happens.

Also, if there is any indication that the sister’s motives are not in the patient’s best interests, get the police involved. This is particularly important if the sister is demanding that life saving treatment be withheld.

Wow… that explanation was longer than even I thought it would be, and we just scratched the surface of powers of attorney.