Durable Health POA + HIPPA; who judges incapacity?

Thank you both. I'm just so befuddled about this -- very complicated. I'm just lining up the ducks now, in case I have to act. I have found an elder lawyer and she is very helpful. We had a one-hour initial consultation. She's going to work with us on a financial POA, but I guess I'm still confused about what I have already, which my husband and I each have for each other --we did it when we did our wills. Thus far, it hasn't been a problem, I'm just trying to get thing together before it gets worse for my spouse. I'm meeting with the attorney in a few weeks and I'll get straight on this. And I'll share.

The only time incapacity is an issue is if you have a springing POA for your dad. In that case, I think two doctors need to agree on his incapacity. They may not agree, which is a problem with springing POAs. If it is the springing type, the document should define what incapacity means, what incompacities can trigger action by the POA, and who can make that judgment..

If your dad granted a durable healthcare POA, then there is no incapacity or incompetency requirement. The durable HCPOA became immediately effective and actionable by you the day it was signed. That's why the grantor must have unshakable trust and confidence in who he/she names as agent.

To be sure of what type of POA you have and when it become actionable by you, a visit to the attorney who created the documents might be wise.

When my husband was alive, and had vascular dementia, I just had to email his Dr's offices a copy of both my durable and medical POA's, and never had an issue after that. If someone tried to question me,(as they did on occasion), I just told them to look in his file and they would find copies of my POA's. My husband had also signed every year his HIPPA paperwork, stating that I was the one that could get his medical info, so that was never an issue either. I never had to have him judged "incapacitated" as it was notated in his medical records that he had vascular dementia.

Two doctors judge incapacity in my State. Your POA likely says who judges it. But what you need really is advanced health care directive stating who acts for him when he is unable (you) and who has a right to information to make decisions for him when he cannot. That should be a separate document you did at the same time? As wife, as next of kin, and with a husband already in dementia, your copy of your POA should not be presented to your husband's doctor; this will assure him or her that you can receive information. Have they regularly been giving you information now?
There is health care POA and there is financial POA and it is the financial they worry about instituting on someone who CAN act for himself.
I would take all fact and all papers to your attorney now (or to any good elder law Attorney) and tell them the facts of your husband's condition. I would tell you doctor and the doctor who is neuro-psyc you need documentation for your lawyer that your husband should have a health care proxy acting for him now. Ask that Lawyer how you should proceed. This is going likely to cost you about 350.00 in an hours time, but you will have established a relationship that will make things easier going forward, and have someone to go to in time of need.
Incapacity CAN be judged by a doctor or nurse on the phone after being with your husband, but they can't act on anything but legal documentation often enough. With an established relationship with you they themselves can tell you how you should proceed so discuss this with your husband's doctor if your husband is not going to be able to act in his own best interest moving forward.
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