Can POA authority be switched on/off based on LO's state of mind?

Geatty raises some great points that I encourage people to read if they are watching this thread. I’m putting this in as a new post so it’s
not lost in the reply chain. I gave a long (and I still believe correct) description of how, in Massachusetts, the health care POA is *supposed* to be activated when a person doesn’t have capacity (and deactivated when capacity regained). But I didn’t mention who determines this. It is a physician who makes this capacity assessment, and therefore “throws the switch” to invoke POA authority-not a family member or the POA himself or herself. Reference at the bottom of this.

Fortunately (since it’s about a healthcare decision), there often is a physician involved. But of course everyone recognizes there’s not a physician standing at the bedside 24/7 continuously reassessing this, which is why it’s so difficult when people have rapid and large swings in capacity. It’s hard—the legal, ethical and practical issues don’t all quite line up.

It’s easier in the hospital – for example if someone “sundowns” after a hip replacement and wants to leave the hospital at 2am—there it’s both easier to assess (MDs around) and more obvious. At home of course even though the same thing happens, logistics are more difficult, especially with dementia where underlying problems is clearly severe, unchanging, and worsening, but in midstages the person can flicker in and out of apparent lucidity.

So I shared some of the legal and ethical framework, but how does this work out in practice? You can’t call the doctor up every night after dinner and again in the AM. Well, first, there’s only applies when there’s a healthcare decision to be made, and fortunately 99% of the time that’s not the case. Second, The default is you have to go with the last MD assessment of capacity/whether POA is active I suppose legally, but always understanding the spirit of the agreement — not to deprive people of decision-making for themselves if they’re able to do so—-and that the MD involved is supposed to reevaluate if necessary if this status might have changed.

One other useful way to bridge the gap is that during the periods of apparent lucidity, the POA agent can listen to what the person wants, either re the specifics of a medical decision, or the general concept of what’s important to them. And if both the person themselves and their agent (acting on their behalf) agree re what is to be done, then it is sort of a non-issue.

I’m not sure I’m helping here, despite my intent, so I’ll pipe down after this, but hopefully I’ve shared some of the framework that underlies this.

See first paragraph vs last few:

https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter201D/Section6

No, if it is a durable PoA (which means it is active as soon as it is signed and legally finalized).

If it is springing... what happens on a morning when he for the first time is not "lucid"? How would one ever "prove" that a proxy decision was made when someone didn't have capacity *at the time*?

This is why reading your PoA doc and knowing what activates the authority is important, and to get him in for a memory/cognitive exam asap if you haven't already done this.

Norconium8–

Technically, this Is a matter of state law which establishes the healthcare proxy rules (for those states where healthcare proxy is the guiding principle). That said, as far as I know most of them behave the same. I can only speak with experience about Massachusetts, where I have been involved in multiple such determinations.

The guiding principle here is that the healthcare POA/proxy is active whenever the principal lacks “capacity“ to make healthcare decisions, specifically defined in the law as: “ the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.” There is no specified duration, it can ho on/off. And in practice this can in fact change relatively rapidly. Probably the clearest example is: if someone passes out, and stays unconscious, the proxy would be active. When they wake up, it would no longer be active. But this kind of on/off also applies for states of delirium including the variation over the day that you described.

In practice, for patients that are right on the edge of having capacity, there’s a little bit of common sense applied: Nonemergency decisions should be put off until the morning, when they will regain capacity. And the determination of capacity has to be very careful. (Furthermore, capacity in practice also varies a little bit with the severity of decision: A patient who doesn’t understand what’s going on or the risk/benefit might not have the capacity to participate in a decision regarding a potentially helpful antibiotic but with potential side effects,, and POA might come into play….but might be considered to have the capacity to have a preference want a pill versus a liquid stool softener). The key is whether the person can understand what is being decided and risk/benefit.

So the short version is: yes, capacity (and therefore the POA authority) can change over the course of time including over the course of a day. This is challenging for everyone, though again keep in mind the role of the POA is to reflect the patient’s interests, which hopefully would’ve been expressed earlier in the day.

I’m not a lawyer, but this is laid out relatively well at least for Massachusetts in the Massachusetts laws. Section one has the definitions, section 6 at the end specifically addresses “regaining capacity”. Here’s the link to section 6.

https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter201D/Section6

There are special cases (mental illness, where the principal is actively objecting to an invasive intervention yet lacks capacity, etc.)

Edit: Note that this kind of on/off based on capacity is unique to healthcare power of attorney/proxy. Financial or other powers of attorney are guided by different rules: they may be active immediately after sign, vs as I understand it “springing “to only become active when the principal lacks capacity (less common). I know less about these.

Edit 2: “Competence” is often used as a casual synonym, but in fact that’s generally determined by a judge/court and it’s not an on/off thing. With that in mind, we often say “competent (though what we mean is “with capacity “) people can make their own bad decisions”. You are allowed to make what seem to be unwise healthcare decisions for yourself, as long as you have capacity. But please be sure to pass these preferences clearly onto your healthcare agent, as he or she is supposed to represent your preferences, not what they think is right for you. Example: someone says “I don’t want to be on a breathing machine, kept alive by machines”, then has something potentially reversible like a pneumonia. I’ve seen healthcare agents in agony over this kind of ambiguity, and super-guilty no matter what they decide. Please be clear.

You have POA when (usually) TWO doctors, one often a neuro-psyc MD, makes the assessment and documents that your appointing principal is no longer competent in his own care. That means that overall his assessment and judgements are a danger to himself and/or others.

There is no "my understanding" involved. The POA is written. You need only read it to understand when you are acting POA. And no, it doesn't change according to the moment of the day. However the POA is a human being. The POA understands when the principal needs help and when the principal doesn't need help. Certain things, of course, such as executive functions need to be PERMANENTLY and THOROUGHLY removed and taken over. But as to whether you walk to the corner for an ice cream or drive to the local park??? There will be times the principal can and should have a "say" in that.

If you don't understand how POA works do read up on it online.
And of course you can attend an attorney for all of your questions.

Do know that if a POA is fought, withdrawn, etc. that the principal will be supplied an attorney in the court system and the right to prove his competency to manage his own affairs and the court will decide whether he is or is not competent to do so. So I guess one could hope the judge isn't a morning person.

If hubby has now reached the level of incompetency that you have had to assume all control over decisions, then the only difference is that in the a.m. you can explain it to him a bit, and in the evening--probably not.

You have your husband formally diagnosed. Sounds like DH is in the early stage. Sundowning is usually the first sign Dementia is involved. Read your POA, if immediate your POA is in effect. If you need a doctor/s signing off then u get that done by having him formally diagnosed.