I have a durable health POA for my husband, who has Parkinson's related dementia. I'm wondering how the POA gets invoked - when do I need to produce it. It has a clause about my serving as Personal Representative for the purpose of HIPPA. All this can become effective in the case of my husband's "incapacity." Does anyone know, who judges "incapacity"? Is it just a matter of what the attending doctor or nurse on the phone thinks?
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.
Those ones that expire every year are a source of much heartache for people because they usually need it when their loved one is incapable of executing a new one.
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.
Update us if you will.