What rights do I have as a healthcare agent?

A fellow caregiver asked...

My father has signed a durable power of attorney for healthcare, naming me as his healthcare agent. I'm a little unclear about my legal rights and obligations. I'd rather know now than in an emergency.

Expert Answer

Ashley Biteler is a trusts and estates attorney in Chesapeake, Virginia.

Congratulations on planning ahead. Now you need to learn what you've signed up for! If your father hasn't done so already, ask for a copy of the durable power of attorney for healthcare, naming you his healthcare agent. This document will spell out your duties. The better drafted the document, the more clearly it outlines your rights and responsibilities.

Ideally, this document specifically gives you the right to procure long-term and/or hospice care for your father, and to hire and fire medical providers. It should also include a specific clause allowing you to seek psychiatric treatment for him, which is key if you see signs of dementia or Alzheimer's. It's also important to have a specific clause allowing you to sign releases discharging him from a hospital against medical advice. This comes into play if your father has a terminal illness and wishes to forgo certain treatment and die at home, for example.

The document should also spell out whether your father intends to pay you for any health services you might provide him. This can solve family arguments over money and responsibilities ahead of time, provide you with adequate funding to care for him, and offer a way to pay down his estate if he tries later to qualify for Medicaid. You can head off a lot of griping by including this information. Remember, though, that you'll have to pay income tax on this money. To come up with a fair rate, generally a geriatric specialist will come in and assess what type of care a client needs, and what it would cost to buy privately. Home healthcare aides make between $16 and $20 an hour. Anything in that range shouldn't raise any eyebrows.

A good attorney will include a HIPAA (Health Insurance Portability and Accountability Act) release, which will give you access to your father's medical data. It's also important that your father have a living will that outlines his wishes for his care and treatment at the end of his life. A good living will spells out exactly what measures your father wishes to receive and what he wants withheld, including pain medication (even if it hastens death), IV or tube feeding, and even water and hydration.

A durable power of attorney for healthcare document typically runs about nine pages long. If your father's is much shorter, it may not cover all the ground it should. Ask him for a copy so that you'll know his wishes. Once the two of you have had a chance to review and discuss it, that's the time to talk about making revisions.