Do You Know What Your Health Care Agent Can and Cannot Do?

A Durable Power of Attorney for Health Care Decisions (a “DPOA”) enables you (the “principal”) to provide instructions to a third party (the “agent”) regarding crucial decisions when you are incapacitated and are no longer able to manage your health care decisions without assistance. Properly executed DPOAs will authorize your agent to provide assistance without having to resort to filing for guardianship proceedings in the Clark County District Court.

The scope of the agent’s authority

DPOAs contain a general statement of authority which provides that in the event that the principal is incapable of giving informed consent with respect to health care decisions, the agent is granted full power and authority to make health care decisions for the principal before or after death, including consent, refusal of consent or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose or treat a physical or mental condition; to request, review and receive any information, verbal or written, regarding physical or mental health, including, without limitation, medical and hospital records; to execute any releases or other documents that may be required to obtain medical care and/or medical and hospital records, subject to any specific limitations that the principal included in the DPOA. Accordingly, as long as you can provide informed consent, the agent has no authority to act on your behalf regarding medical decisions.

Informed Consent

The determination as to whether you are capable of giving informed consent is made by your treating physician. NRS 442.253 provides that a physician or dentist has conclusively obtained the consent of a patient for a medical, surgical, or dental procedure if the physician or dentist has:

  1. Explained to the patient in general terms, without specific details, the procedure to be undertaken;
  2. Explained to the patient alternative methods of treatment, if any, and their general nature;
  3. Explained to the patient that there may be risks, together with the general nature and extent of the risks involved, without enumerating such risks;
  4. Obtained the signature of the patient to a statement containing an explanation of the procedure, alternative methods of treatment, and risks involved.

In summary, informed consent requires that the patient understand what the procedure is, why it is being done, and what the risks and benefits are. The patient must have the ability to weigh the pros and cons and to make an informed decision on how to proceed.

What an agent cannot do?

Assuming that your physician has determined that you are unable to provide informed consent, a health care agent is still precluded from authorizing certain procedures. NRS 162A.850 provides that an agent may not consent to commitment or placement of the principal in a facility for treatment of mental illness; convulsive treatment; psychosurgery; sterilization; abortion; aversive intervention; experimental medical, biomedical or behavioral treatment, or participation in any medical, biomedical or behavioral research program; or any other treatment to which the principal, in the power of attorney for health care, states that the agent may not consent.

Authority pertaining to living arrangements

In the past, it was assumed that the broad authority granted a health care agent included the ability to arrange for the transfer of the principal to an assisted living or skilled nursing care facility when appropriate since it was not specifically excluded. However, as a result of the recent legislation, it is apparent that this was not the case.

As a result of recent changes by the Nevada Legislature to the laws pertaining to DPOAs, it is now clear that the agent does not have the authority to arrange for a transfer to an assisted living or skilled nursing care facility, even if the principal’s treating physician agrees it is in the person’s best interest. However, you may insert language into the statutory DPOA which authorizes this conduct, even in the event you desire to remain at home as long as it is safe and your medical needs can be met.

It is important to understand the implications of a durable power of attorney for health care decisions and you should be aware of what the agent can and cannot do before executing the document. The durable power of attorney for health care decisions is an important part of your estate plan and should be discussed with an experienced estate planning attorney.

Footnote: In 2017, the Nevada Legislature enacted NRS 449A which provides for Advance Directives for Psychiatric Care which are also known as Psychiatric Advance Directives (“PADs”). PADs permit people to determine what treatment they will receive if and when they lose the capacity to make treatment decisions. However, a PAD is an expression of desired treatment and does not authorize a family member to commit someone to a mental health facility.

For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada

Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.