Advance Directives & Elder Abuse

Do advance directives prevent elder abuse or do they create the opportunity for it? Frankly, they can have either effect. They can help ensure that your wishes are respected and that a trustworthy person has control over your health and finances, or they can open the door for decisions that conflict with your instructions, and may even constitute abuse. The key is naming the right person in your advance directives, and having the right type of conversation about your desires.

Let’s go back to the beginning before we dig deeper into this topic. What is an advance directive in the first place? An advance directive is a legal document signed by a competent individual that provides guidance about their wishes. There are a number of different legal documents that may be considered advance directives, but this article focuses on two that are of special importance in Massachusetts: The Health Care Proxy and the Power of Attorney.

The Health Care Proxy allows you to appoint someone to make medical decisions for you if you become incapacitated. The Power of Attorney allows you to appoint someone to conduct certain transactions on your behalf, including financial transactions. This appointment can come into effect immediately or only in the case that you become incapacitated, depending on your preference.

Both the Health Care Proxy and Power of Attorney may be useful in helping you to maintain autonomy if you lose the ability to make decisions for yourself. If you become incapacitated and have not named a Health Care Proxy or Power of Attorney, the court may appoint someone to make your decisions for you. While this person should theoretically protect your wishes, they may not know what those are, or they may not respect them. Furthermore, there is the possibility of outright abuse. The person who is appointed as your legal fiduciary may try to benefit themselves, at your expense. Naming someone in your advance directives who you really trust and who really understands what you want can help ensure that your wishes are protected and that abuse does not occur.

The trick is choosing the right person for the job. The person you name as your Health Care Proxy and/or Power of Attorney (called the “agent”) should be both extremely trustworthy and extremely responsible. Naming someone who is not trustworthy or responsible may result in the mismanagement of your healthcare or financial decisions. It could even result in that person purposefully exploiting you; transferring your money or property against your wishes, or making healthcare decisions that directly conflict with your religious beliefs. It is essential to choose someone whom you have no doubts about.

If you have two people in mind for one advance directive, it is wise to name one of those people as the principle agent and the other as an alternative agent. Naming two people as joint agents is possible, but it can lead to unnecessary conflict. Also, bear in mind that it may be appropriate to name different people for your Health Care Proxy and Power of Attorney.

After you have chosen your agent, it is important to have a detailed discussion with that person about your wishes. If you simply authorize someone to act as your agent without offering them guidance, even with the best of intentions, that person may make decisions contrary to the ones you would have made for yourself. A thorough conversation can ensure that the use of advance directives benefits you and does not harm you. It is also a good idea to put your wishes in writing and attach that document to the advance directive. While not legally binding, this written guidance can serve as an important reminder about how to proceed.

Perhaps you are thinking that this all makes sense in the abstract, but you are confused about what the creation of an advance directive actually looks like. Well, I can tell you about that because just a couple months ago, I completed a Health Care Proxy form and appointed my mother as the principle agent and father as the alternative agent. Over Thanksgiving weekend, I sat down with the two of them and we had a lengthy conversation about my healthcare wishes. My mother is a physician so she understands a lot about incapacitation and end-of-life needs, but she knew very little about what I wanted for myself. I explained my views on pain-management medication and invasive surgical procedures, among a variety of other topics. The following websites are helpful in guiding this type of conversation: theconversationproject.org and agingwithdignity.org. Interestingly (though unsurprisingly) my healthcare wishes are not identical to those of my parents, so our conversation really was beneficial. As we talked, I documented my wishes on a document that I then attached to the Health Care Proxy form. Afterwards, I made copies for both my parents and for my physician. I also kept a copy to keep in an envelope on my fridge, so that it could be easily found in an emergency situation.

While it was a bit sad to discuss my potential incapacitation, I feel confident that my wishes were understood and will be followed. It is comforting to know that, even if I lose my decision-making capacity, I will retain some control over how my healthcare is managed. Additionally, because I have such trust in my parents, I have no concerns about abuse. I recognize that the abuse of the incapacitated does occur regularly, and I am glad to have protected myself against it.

To conclude, if you name a truly trustworthy and responsible person as your agent, and take care to ensure that they understand your wishes, advance directives can be useful in preventing elder abuse and helping you to maintain autonomy even after you lose capacity. However, there is the possibility of misuse, so be mindful in your creation of advance directives and be wary of the potential for abuse.

 

Massachusetts Health Care Proxy Form: http://www.massmed.org/healthcareproxy/#.WIuRQVUrLIW

Massachusetts Power of Attorney Form: http://www.mass.gov/dor/docs/dor/forms/miscform/pdfs/m-2848.pdf