Medicolegal Issues

Autonomy vs abuse: Can a patient choose a new power of attorney?

Current Psychiatry. 2015 March;14(3):37-40

References

1. Black PG, Derse AR, Derrington S, et al. Can a patient designate his doctor as his proxy decision maker? Pediatrics. 2013;131(5):986-990.
2. Pope TM. Legal fundamentals of surrogate decision making. Chest. 2012;141(4):1074-1081.
3. Araj V. Types of power of attorney: which POA is right for me? http://www.quickenloans.com/blog/types-power-attorney-poa#4zvT8F58fd6zVb2v.99. Published December 29, 2011. Accessed January 11, 2015.
4. Moye J, Sabatino CP, Weintraub Brendel R. Evaluation of the capacity to appoint a healthcare proxy. Am J Geriatr Psychiatry. 2013;21(4):326-336.
5. Whitman R. Capacity for lifetime and estate planning. Penn State L Rev. 2013;117(4):1061-1080.
6. Duke v Kindred Healthcare Operating, Inc., 2011 WL 864321 (Tenn. Ct. App).
7. Soliman S. Evaluating older adults’ capacity and need for guardianship. Current Psychiatry. 2012;11(4):39-42,52-53,A.
8. Katona C, Chiu E, Adelman S, et al. World psychiatric association section of old age psychiatry consensus statement on ethics and capacity in older people with mental disorders. Int J Geriatr Psychiatry. 2009;24(12):1319-1324.
9. Carr D, Moorman SM, Boerner K. End-of-life planning in a family context: does relationship quality affect whether (and with whom) older adults plan? J Gerontol B Psychol Sci Soc Sci. 2013;68(4):586-592.
10. Majesko A, Hong SY, Weissfeld L, et al. Identifying family members who may struggle in the role of surrogate decision maker. Crit Care Med. 2012;40(8):2281-2286.
11. Fulmer T, Guadagno L, Bitondo Dyer C, et al. Progress in elder abuse screening and assessment instruments. J Am Geriatr Soc. 2004;52(2):297-304.
12. Horning SM, Wilkins SS, Dhanani S, et al. A case of elder abuse and undue influence: assessment and treatment from a geriatric interdisciplinary team. Clin Case Stud. 2013;12:373-387.
13. Lui VW, Chiu CC, Ko RS, et al. The principle of assessing mental capacity for enduring power of attorney. Hong Kong Med J. 2014;20(1):59-62.
14. Acierno R, Hernandez-Tejada M, Muzzy W, et al. National Elder Mistreatment Study. Washington, DC: National Institute of Justice; 2009.
15. Wilber KH, Reynolds SL. Introducing a framework for defining financial abuse of the elderly. J Elder Abuse Negl. 1996;8(2):61-80.
16. Mukherjee D. Financial exploitation of older adults in rural settings: a family perspective. J Elder Abuse Negl. 2013; 25(5):425-437.
17. Lifespan of Greater Rochester, Inc., Weill Cornell Medical Center of Cornell University, New York City Department for the Aging. Under the Radar: New York State Elder Abuse Prevalence Study. http://nyceac.com/wp-content/ uploads/2011/05/UndertheRadar051211.pdf. Published May 16, 2011. Accessed January 10, 2015.
18. Hall RCW, Hall RCW, Chapman MJ. Exploitation of the elderly: undue influence as a form of elder abuse. Clin Geriatr. 2005;13(2):28-36.
19. Kemp B, Liao S. Elder financial abuse: tips for the medical director. J Am Med Dir Assoc. 2006;7(9):591-593.
20. Kemp BJ, Mosqueda LA. Elder financial abuse: an evaluation framework and supporting evidence. J Am Geriatr Soc. 2005;53(7):1123-1127.
21. Stiegel S, Klem E. Reporting requirements: provisions and citations in Adult Protective Services laws, by state. http:// www.americanbar.org/content/dam/aba/migrated/ aging/docs/MandatoryReportingProvisionsChart. authcheckdam.pdf. Published 2007. Accessed January 9, 2015.

People who have good marital or parent-child relationships are more likely to select loved ones as their POAs.⁹ Family members who have not previously served as surrogates or have not had talked with their loved ones about their preferences feel less confident exercising the duties of a POA.¹⁰ An evaluation, therefore, should consider the prior relationship between the designator and proposed surrogate, and particularly whether these parties have discussed the designator’s health care preferences. Table 2 lists potential pitfalls in POA evaluations.^{2,4,5,8,11-13,16}

Responding to abuse
Accompanying the request for Dr. P’s evaluation were reports that the current POA had been stealing the patient’s funds. Financial exploitation of older people is not a rare phenomenon.^14,15 Yet only about 1 in 25 cases is reported,^16,17 and physicians discover as few as 2% of all reported cases.¹⁵

Many variables—the stress of the situation,⁸ pre-existing relationship dynamics,¹⁸ and caregiver psychopathology¹¹—lead POAs to exploit their designator. Sometimes, family members believe that they are entitled to a relative’s money because of real or imagined transgressions¹⁹ or because they regard themselves as eventual heirs to their relative’s estate.¹⁶ Some designated POAs use designators’ funds simply because they need money. Kemp and Mosqueda²⁰ have developed an evaluation framework for assessing possible financial abuse (Table 3).

Although reporting financial abuse can strain alliances between patients and their families, psychiatrists bear a responsibility to look out for the welfare of their older patients.⁸ Indeed, all 50 states have elder abuse statutes, most of which mandate reporting by physicians.²¹

Suspicion of financial abuse could indicate the need to evaluate the susceptible person’s capacity to make financial decisions.¹² Depending on the patient’s circumstances and medical problems, further steps might include:
• contacting proper authorities, such as Adult Protective Services or the Department of Human Services
• contacting local law enforcement
• instituting procedures for emergency guardianship
• arranging for more in-home services for the patient or recommending a higher level of care
• developing a treatment plan for the patient’s medical and psychiatric problems
• communicating with other trusted family members.^12,18

Bottom Line
Evaluating the capacity to appoint a power of attorney (POA) often requires awareness of social systems, family dynamics, and legal requirements, combined with the psychiatric data from a systematic individual assessment. Evaluating psychiatrists should understand what type of POA is being considered and the applicable legal standards in the jurisdictions where they work.

Disclosures
The authors report no financial relationships with any company whose products are mentioned in this article or with manufacturers of competing products.

Autonomy vs abuse: Can a patient choose a new power of attorney?

References

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