Why You Need a New Healthcare Power of Attorney


Lee Drizin: Hi, everyone. This is Attorney Lee Drizin. Today, we’re going to be talking about why you need a new durable power of attorney for health care decisions. In 2019, the Nevada legislature made some significant changes to the law which impacted these types of powers of attorney, and we feel strongly enough about it that we’re making recommendations to all of our clients that they need to consider having a new power of attorney for health care executed.

Living Arrangements

The first section that’s really changed is addressing this issue about authority pertaining to living arrangements. We had always believed that the power under the health care powers of attorney was so broad that it included the ability to transfer somebody to a facility if they needed a higher level of care. What the legislature has done is made it clear that not only is that not in existence, but it’s now indicated that if you feel strongly about being at home, the power of attorney gives you the authority of exercising a couple of different options in the document.

While we think that it’s a positive development in some regards, it also, unfortunately, creates some real problems. The first option that you now have in your durable power of attorney for health care is to indicate that you want to remain at home as long as it is safe. This indicates that it’s my intention to live at home as long as it’s safe and my medical needs can be met. That seems very, very reasonable.

My agent may arrange for a natural person employee of an agency or provider of community-based services to come into my home to assist me. When it’s no longer safe for me to live in my home, I authorize my agent to place me in a facility or home that can provide any medical assistance and support in my activities of daily living that I require. Now, those activities of daily living, the ADLs, these are the issues that a doctor looks at in considering whether or not you can be at home by yourself and live independently.

ADLs include things such as can you go to the bathroom by yourself? Can you shower without assistance? Can you change? All those are the types of issues that they evaluate in determining whether or not it’s safe for you to be at home without assistance. This option indicates that before being placed in the facility or a home, you wish for the agent to discuss and share information concerning the placement with you.

It sounds reasonable. However, some of the concerns that we have about this language are that it doesn’t consider other important factors other than safety and making the decision to comply with the principal’s wishes to remain at home. For example, you may not have family or friends nearby to check on a regular basis. A family member, your health care agent may make arrangements for someone to be at home with you to care for you.

The problem is if there’s no one who can check up on them, is that really in your best interest? In addition, while the principal may be able to remain at home and can afford to have the assistance, the concern is, are they just going to be socially isolated? If no one’s visiting them, if they’re not getting out, if they’re not taking trips, they’re not associating or engaging in activities with others of their own age, is that really the best place for them to be?

While this seems like a reasonable option, I think that there are some things that we feel need to get addressed in these documents. The other option that is now available is for the person who does not want to be removed from their home until there’s an appointment of a guardian. This option indicates that it’s their intention to remain at home as long as possible without regard for your medical needs, personal safety, or ability to engage in activities of daily living.

Once again, the agent can arrange for a natural person, an employee of that agency, or a provider of community-based resources to come to the house and provide care. However, you indicate that before I may be placed in a facility in any place other than my home in which I currently reside, a guardian must be appointed. That’s troubling because we create these estate planning documents for our clients to avoid court intervention.

Now, the legislature has provided an option that essentially says, “No. If I check this box, you cannot remove me from my home without actually going into court and seeking guardianship, and then going through the procedures to relocate me.” Guardianship is an expensive and time-consuming process, and it undermines the whole reason why we do these types of estate plans. The concern I have is that this option number two is really only appropriate for the person who wants to remain home under any circumstances and can never envision a situation where they think it’s not in their best interest to continue to be at home.

This option requires court authorization even when the agent, as well as the treating physician, thinks that it’s no longer safe for that person to stay at home. A very interesting option that the legislature has now included in here but should be discussed and thought over carefully before you decide to exercise this. Now, again, I had mentioned that we had always interpreted the powers of attorney to be broad enough to give someone the authority to transfer you to a facility if you needed a higher level of care.

However, as a result of the recent legislation that was enacted in 2019, it’s apparent that this is not the case. The durable power of attorney form that’s inactive by the revised statute indicates that you may insert language in the power of attorney which authorizes this conduct. If you’re not exercising or not including option one or option two about living arrangements, there’s still the ability to have certain language that specifically says that you are authorizing your agent when they think it is appropriate to move you to a higher level of care.

Don’t forget, we have many resources that are affirmed for information about estate planning as well as other topics including our Guide to Nevada Divorce, Understanding Nevada Probate, and A Guide to Nevada Estate Planning. You can go onto our website, download any of these eBooks at no cost, or you can visit our new video library with information about all these types of topics. More importantly, if you still have questions, please don’t hesitate to give us a call and schedule a consultation. I look forward to speaking with you soon. Take care now.