Definition/Introduction

All healthcare providers, at some point in their career, will be called upon to go beyond medical decision-making and traverse into the realm of medical ethics. The intersection of medicine and law has provided physicians with tools to guide this process, especially when attempting to make decisions for patients who cannot make decisions for themselves. This field of advance care planning (ACP) has been defined as “…a process that supports adults at any age or stage of health in understanding and sharing their personal values, life goals, and preferences regarding future medical care.”[1] The essential documents that outline these values, goals, and preferences in one's medical record are too often missing entirely.[2] 

Perhaps the most important tool to be aware of when navigating these kinds of situations is the healthcare power of attorney.

What is Power of Attorney?

A general power of attorney may be a person or an organization, known as the agent or attorney-in-fact, that has been given powers to act on another person’s behalf. While this can extend beyond the scope of making healthcare decisions for a specific individual, health care power of attorney will be the focus of the article here. 

What constitutes a Health Care Power of Attorney?

Health care power of attorney grants in writing a particular agent the power to make healthcare decisions on another's behalf. This decision is usually in tandem with a durable power of attorney, which is essentially a proviso of the health care power of attorney that safeguards the power of attorney if a person loses the functional capacity to make their own decisions. Given that this is the normal circumstance under which a health care power of attorney becomes activated, the form one fills out to designate decision-making powers is usually headlined “Durable Power of Attorney for Healthcare Decisions” (commonly referred to in the literature in acronym form, DPOAHC). A synonym for a durable power of attorney for healthcare decisions is a health care proxy. 

What’s the difference between Health Care Power of Attorney and a Living Will?

A health care power of attorney is as described above. A living will is a written statement by the person in question, whereby specific wishes are stated and made known. It does not designate a particular agent to have decision-making power in certain circumstances; only one’s preferred choices regarding individual decisions should they arise (e.g., if the patient would like resuscitation or intubation as potential life-saving maneuvers). A living will may be used by a designated health care power of attorney to help guide their decision-making.

Can more than one person be designated Health Care Power of Attorney?

Yes, if it is the wish of the patient, multiple people can be selected to have decision-making powers. Additionally, a backup agent should always be designated in the case that the primary agent is unable to serve in their assigned role when needed. It should be clear in these cases if each of the agents can act independent of the others or if they must make joint decisions. While multiple agents allow for checks and balances, and arguably a more reasoned approach to decision-making, it comes at the cost of time and potential disagreements, which can delay the delivery of the necessary care (or lack thereof).

Issues of Concern

Who should designate a Health Care Power of Attorney?

Everybody should designate a healthcare power of attorney. Studies have shown that the prevalence of ACP participation ranges from a mere 18% to 36% among U.S. adults.[3] Even in younger patients with no medical comorbidities, many unforeseen events can lead to a loss of mental capacity. This preparation is vital to ensure that care delivery is in accordance with your wishes. Studies show that especially with regards to end-of-life care involving life-sustaining treatment, the values and preferences of patients disagree significantly from the wishes of family members. Furthermore, while many ACP documents are web-based, many do not link to the electronic health record (EHR), making an early discussion of ACP crucial to honor the patient’s wishes at the end of life.[4][5] A power of attorney only has validity if you are of sound mind when signing the document. If you feel that your mental competence may be in question, you can have a doctor verify it for you in writing at the time of signing. 

Why should Physicians care about Power of Attorney?

In a survey of ED physicians, only 31% self-reported themselves as very/extremely confident that they could find and use ACP documentation for patients under their care, even though 78% found power of attorney documentation as very/extremely useful, and up to 90% finding the same utility in some form of advance-care planning.[6] 

While the EHR is not without its faults, it provides an accessible format with which to obtain, store, and refer to ACP documents such as a power of attorney. Research shows that the presence of an ACP document modality in an EHR has a positive influence on the availability of ACP documents when needed.[7] Along with awareness initiatives at all levels of healthcare, availability of an ACP documentation system should be a directed goal when evaluating an EHR at any institution.

Other initiatives to increase participation in ACP include the use of a patient portal that utilizes electronic messaging with healthcare team members. Recent studies suggest that the use of technology in this way both increases ACP documentation rates as well as the self-reported level of convenience of documentation by patients, a known significant barrier to the creation of these documents.[7][8][9]

The performing of medical care against that patient's wishes violates their autonomy and has even been defined as a form of medical error in the literature.[10] From a role of power within the healthcare community, emergency physicians have both the ability and responsibility to advocate for patients and demand a system that elevates their ability to practice in accordance with the wishes of their patients. 

Clinical Significance

What is the difference between mental capacity and competence, and how are these determined?

Historically, a difference between mental competency (a legal determination) and capacity (a functional, clinical assessment) received emphasis; however, recent literature suggests this distinction is less important than initially thought. The evaluation to determine capacity must be by a physician and can be done so by a trusted physician if specifically requested in the power of attorney document. In time-sensitive situations or when the requested physician is unavailable or not designated at all, two licensed physicians must agree on the mental status of the patient in question.

The process of determining capacity is one of the most vital functions of the physician seeking to enact a power of attorney for decision-making. Broadly, this assessment can take place with the following approach:

• Communication
  • Patients should be able to express not just their wishes, but also their rationale behind their preferences; this allows physicians access to the patient’s motivations and insight, which are vital to assess in determining capacity.
• Understanding
  • Patients should be able to recall conversations about treatment options and recognize causal relationships within the treatment plan. Understanding is often affected by problems with memory, attention, or overall intelligence.
• Appreciation
  • Patients should be able to appreciate the consequences of the illness, treatment options, or the decision to forego treatment, and how the outcome will affect him or her directly. Patients can often be in denial from either a lack of intelligence or emotion about the state of their illness, thus robbing them of their ability to appreciate the consequences of such illness as affecting them directly.
• Rationalization
  • Patients should be able to process the risks and benefits of treatment options and come to the conclusion that coincides with their best interests and goals. The ability to reason effectively can often be diminished by psychiatric disorders, though this is not always the case.

It is important to remember that capacity is not static and can change from absent to present as a patient progresses through the healing process. Similarly, a patient’s non-capacity to make one decision does not necessarily deem that patient not to have the capacity to make any other decisions regarding their care.

Why is the Power of Attorney Important Clinically in the Emergency Department?

The course of patients that enter the hospital links inextricably to the care they receive within the emergency room, and this has important ethical and financial implications for the patient and patient’s family, the physicians involved, and the hospital. It is often the case that upon initiation of treatment that sustains the life of the patient, be it ventilator support for breathing or vasopressor support for proper circulation, it becomes challenging to adhere to the desires of the patient in question. This situation becomes especially true if doing so would mean direct harm to the patient’s immediate chances of survival. 

As frontline providers, emergency physicians are afforded the unique opportunity to broach important ACP questions with patients and their families early, and in doing so can pave the way for all physicians to provide compassionate care that empowers patients to live their last few moments on their own terms. Proactively participating in ACP with families has been shown to fundamentally improve the costs of providing care while also diminishing the likelihood of stress, anxiety, and depression in surviving relatives.[3] Furthermore, ACP was associated with increased quality of end-of-life care, including less in-hospital death and increased use of hospice.[11] The multivariable benefits of ACP availability in patient care should invigorate the moral sensibilities of ER physicians, who carry a fiduciary duty to act per the patient's interests and can better serve these interests by utilizing documentation for power of attorney.