11.3 Powers of Attorney and Advance Directives

Power of Attorney (POA)

Variable by state, a power of attorney (POA) is a written designation of authority to act for another person in specified matters (Table 11.3). It is one type of advance directive. Medical or health-care power of attorney gives the designee (agent), who must be over the age of 18, the permission to make decisions in the event the designator (principal) is incapacitated. A person living with mental illness may experience episodes of incapacity for decision-making, whether this involves psychological detachment from reality, extreme social withdrawal, or mental health crisis, including self-harm or danger to others, so it often makes sense to appoint a power of attorney in case these situations arise. Limitations of the POA are that no one can transfer authorization and no decisions can take place after the death of the principal.

Power of attorney status, in general, authorizes the agent to manage personal and business matters for a principal person. These matters may include financial, personal property, real estate, or contracts. The health-care power of attorney can speak for the person if the person cannot make their own health-care decisions. The health-care POA will follow the person’s known wishes or directions as documented in the advance directive. Agents only make decisions if the principal is unable to do so. Agents may have access to the medical record and make decisions regarding admission/discharge, treatment, and medication.

Proxy Directives

Proxy means representative. As with all advance directives, proxy designation varies in the United States by state. A health-care proxy, also called durable medical power of attorney or health-care surrogate, is a person with legal authorization to represent a client in their health-care decisions. The proxy will decide as the person would have decided. The designated health-care proxy may have limited or broad authority, as designated by the principal, including whether any other persons may be involved in decisions. An alternative proxy can be named, should the primary proxy be unreachable at a needed time. In mental health-care situations, proxies are often involved with decisions regarding quality of life and end-of-life care.

According to Medicare Rights (2023), there are specifics to consider when planning for representation in health-care matters, such as:

• Someone designated as health-care proxy may have access to the person’s medical record. Any limits on this access should be designated.
• Persons should ensure the proxy is aware of their beliefs and attitudes about care during illness and end of life, as well as preferences for facilities or providers. Documents should be updated if preferences change.
• The person may change the proxy. If so, a new document is required.

Laws and guidelines vary by state, so persons should be aware that:

• The proxy is a decision-maker for health care; arrangements concerning health-care costs and health insurance may be categorized as financial decisions.
• State law may designate a decision-maker in the absence of the person’s documented directives.
• States may combine the living will and health-care proxy in the single advance directive document.

Domingues et al. (2022) advocate for the person diagnosed with a mental health disorder to outline health-care proxies and advance directives during periods of stability. A person faced with death may cycle through thoughts and reactions related to multiple emotions. These changing emotional states may not coincide with actions specified in the advance directive. In these cases, or in periods of exacerbation of psychiatric symptoms, some forms of paternalism within the health-care systems may not sanction death without intervention for a person diagnosed with a mental illness (Domingues et al., 2022). While acknowledging that medical education and research should address these concerns, Domingues et al. (2022) assert that persons’ autonomy is fundamental to health care.

In a comprehensive literature review, Wilkinson et al. (2007) describe end of life as a “value-laden issue” due to the many aspects of chronic disease and the multiple methods of prolonging and sustaining a living state. End-of-life issues also apply to those clients who may have a mental health problem. Wilkinson et al. (2007) cite the concern of significant others to those with psychiatric diagnoses and found that “facilitated discussion” was helpful. Further, this review of literature found studies to support the interest and ability of persons living with mental illness to complete advance directives for psychiatric care. Specific to end-of-life care, nearly half of older persons studied who were diagnosed with depressive disorders had “do not resuscitate” orders and more than 10 percent rejected ventilation at end of life (Wilkinson et al., 2007).

Concerning designation of proxy decision-makers, Wilkinson et al. (2007) cited a community study of those living with mental illness, which found more than 70 percent supported the idea of proxy and more than 60 percent were able to select a proxy.

Concepts for end-of-life care include:

• safety and comfort
• client’s self-determination
• client may be offered a life review with a therapist
• pain management
• spiritual care
• support for survivor grieving

Implications of Psychiatric Advance Directives

According to the Substance Abuse Mental Health Services Administration (SAMHSA, 2023), psychiatric advance directives (PAD) must comply with the state guidelines and typically include a notarized signature page with two additional witnesses signing. Frequently, the PAD may contain a statement of the person’s intent in creating the PAD; the designation of another decision-maker if the person is adjudicated incompetent; designation of a guardian if a court appoints one; the person’s preferences for hospitalization, alternatives to hospitalization, specific medications, or the use of electroconvulsive therapy; the person’s preferences for emergency interventions, which may address the use of seclusion, restraint, and emergency medication administration; willingness to participate in experimental studies or research; people to notify upon the person’s admission to a psychiatric facility; the person’s preferences regarding visitation if hospitalized and the care of dependent family members or pets; and the person’s right to suspend or terminate an advance directive while incapacitated, as allowed by state law (SAMHSA, 2023).

When conducting client and family education with regard to PAD, nurses should discuss the following benefits and barriers to encourage informed decision-making. Collaborative care with social services and counselors is helpful. Benefits and barriers associated with PAD as defined by the Joint Commission (2023) include:

• Benefits
  • client’s autonomy
  • improved relationships with providers
  • treatment adherence
  • less coercive interventions, especially if the person has specified certain medication
  • better follow-up after discharge
• Barriers
  • lack of safe storage or ready access to the document
  • lack of awareness or understanding by others
  • lack of communication among treatment staff, especially emergency response teams
  • some state laws provide for court petition to overrule the PAD