If you have a POA but do not agree with the POA and you are competent, alert and oriented who has decision making capacity?
If my POA calls an ambulance for me to be transported to the hospital and I do not want to go and I am alert and oriented, who does ambulance staff have to listen to? Me as a competent adult or my POA?
With respect to #1 above, Powers of Attorney are typically drafted in one of two ways: as a "Durable Power of Attorney" or "Springing Power of Attorney". Some states, like Florida, no longer permit Springing Powers of Attorney.
A Durable Power of Attorney grants the Agent immediate powers upon execution of the document irrespective of the Principal's capacity.
A Springing Power of attorney grants the Agent powers only upon an event(s) specified in the document (usually incapacity).
With respect to #2 above, an agent can only exercise those powers specified in the document. Typically, a POA is drafted to address only financial and contractual matters and a separate document (Health Care Surrogate) is drafted to cover health care decision making and HIPPA authorization.
Some POA's whether Durable or Springing, include health care decision making and HIPPA powers.
The delineated powers in the document rule; there are rarely "implied" powers (although state statute may have clarifying language).
If the Principal has capacity they retain the ability to revoke the POA at anytime. Usually the Agent(s) must be notified in writing of such revocation.
The above is not to be considered legal advice. Consult competent counsel in your state regarding your particular circumstances.
Talk with an elder law attorney in your state. In my state (Massachusetts) a person may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy.
You are presumed to have the capacity to revoke a health care proxy unless determined otherwise pursuant to court order.
POA doesn't control you, or dictate your life. You can revoke POA at any moment. Only a legal guardian has the level of control you're POA is trying to exert.
You, as long as you can make a competent decision. If the person you chose to be POA is making decisions for you that go against your wishes or forcing you to do things you do not wish to do you may want to rescind the POA and select someone else.
A competent person always retains control - their POA can act only at their direction - say handling some business matter, etc. But they are NOT in charge - for that you are talking about a legal guardian, a court process. A DPOA is a durable power of attorney and may act according to the terms of the DPOA agreement should the giver of the DPOA be unable to act or do decision making, say if you are unconscious after an auto accident.
Lisa, your post does raise the issue: why are you placing power of attorney in the hands of someone whose views you know to be in direct conflict with your own?
If you can't, at the very least, have confidence that this person will honour your stated wishes even after you have lost capacity, then for heaven's sake pick someone else!
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1. The construction of the document.
2. The powers provided for in the document.
With respect to #1 above, Powers of Attorney are typically drafted in one of two ways: as a "Durable Power of Attorney" or "Springing Power of Attorney". Some states, like Florida, no longer permit Springing Powers of Attorney.
A Durable Power of Attorney grants the Agent immediate powers upon execution of the document irrespective of the Principal's capacity.
A Springing Power of attorney grants the Agent powers only upon an event(s) specified in the document (usually incapacity).
With respect to #2 above, an agent can only exercise those powers specified in the document. Typically, a POA is drafted to address only financial and contractual matters and a separate document (Health Care Surrogate) is drafted to cover health care decision making and HIPPA authorization.
Some POA's whether Durable or Springing, include health care decision making and HIPPA powers.
The delineated powers in the document rule; there are rarely "implied" powers (although state statute may have clarifying language).
If the Principal has capacity they retain the ability to revoke the POA at anytime. Usually the Agent(s) must be notified in writing of such revocation.
The above is not to be considered legal advice. Consult competent counsel in your state regarding your particular circumstances.
You are presumed to have the capacity to revoke a health care proxy unless determined otherwise pursuant to court order.
malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter201D/Section7
The laws and cases in your state can give you guidance on what you need to do to express your wishes.
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If the person you chose to be POA is making decisions for you that go against your wishes or forcing you to do things you do not wish to do you may want to rescind the POA and select someone else.
Choose someone else if you feel that person will not honor your wishes.
All the best to you!
If you can't, at the very least, have confidence that this person will honour your stated wishes even after you have lost capacity, then for heaven's sake pick someone else!
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