Health Care Agent in Colorado: Roles, Responsibilities and What to Expect

Part 1: What is a Health Care Agent?

Your very responsible friend/family member — the one who makes to-do lists and actually checks off the boxes — has a job for you. They hired an attorney to draw up an estate plan and nominated you to be their medical agent, or, as most people say, their “medical power of attorney.” Because you would never deny your friend/family member anything so important (that’s why they picked you), you say “yes”, and make a note to Google “power of attorney” when you get home.

Congratulations! You were the right choice for the job because you care and are not afraid to ask questions. Those two qualities, more than anything else, ensure that you will do a good job when called upon to participate in medical decisions when your friend/family member is in crisis and cannot speak for themselves. We, at The Limbaugh Law Firm, applaud your efforts and want to help you understand what the job entails so you can do it well.

First, let’s get the terminology. If you have been named as someone’s decision maker in a power of attorney or advanced directive, you may be referred to as the person’s agent, attorney-in-fact, surrogate, fiduciary, or representative. The person who nominated you is most often called the principal.

Next, what is your job? What is your friend/family member actually asking you to do in this crisis situation?

Your duties begin when your friend/family member loses the ability to make or communicate health care decisions. Generally, you will have authority to make any and all decisions a patient would otherwise make for him or herself, including:

1. Conferring with the medical team.
2. Reviewing the medical chart.
3. Asking questions and getting explanations.
4. Discussing treatment options.
5. Requesting consultations and second opinions.
6. Consenting to or refusing medical tests or treatments, including life-sustaining treatment.
7. Authorizing a transfer to another physician or institution, including another type of facility (such as a hospital or skilled nursing home).

Wow, that is a lot! But this is your friend, someone you trust and who obviously trusts you and your judgment. You were probably chosen because you know this person’s heart and what is important to them. They know you will act for them as they would for themselves. You are trusted to make decisions that you never conceived as even happening.

If you find yourself in this position and your authority is being questioned or you just want to speak to someone who has experience in these difficult situations, please contact us.

Part 2: I Am Designated as Someone’s Health Care Agent, Now What?

Now that you are your friend/family member’s personal agent, you want to do your job well. The Limbaugh Law Firm understands your desires to help and protect your loved ones in a time of crisis. We have experience in these situations and have learned what works and what works better.

Here are eight things you can do to obtain good care for your friend or loved one.

1. Prepare: Have a heart-to-heart talk with your friend/family member and ask the hard questions. What are their spiritual and religious beliefs and how do they impact decisions on living or dying? How do they feel about aggressive or alternative treatments? Do they want family member’s notified or involved in crisis situations? As hard as it is, you need to do this before your loved one loses the ability to make decisions for themselves or to communicate their desires. This will also help prepare you in advance of an emergency situation. You also want a digital copy of the advance directives.
2. Identify yourself: Make yourself and your role known to the medical staff. Remind staff that there is an advanced directive and if they do not have a copy, offer to email them one before any decisions are made.
3. Stay informed: Medical conditions change. Staff at the hospital change. Identify the person who can best keep you informed of your loved-one’s condition. Try to read the medical record everyday; stay involved and be flexible. This does take time, but your involvement will increase your comfort in the type of care provided.
4. Use your voice: Push to make someone responsible for overall care of your friend/family member. Usually there are many medical personnel involved in the patient care, none of which want to take full responsibility for the entire patient. Insist that one person be given overall responsibility to manage your loved one’s care and provide the necessary continuity during the entire period of care.
5. Share information, maybe: Keep the family informed, if appropriate. You have the legal authority to make medical decisions, even if family members disagree with you. Thoughtful and consistent communication can foster consensus and build support when difficult things need to be discussed. If you are in a situation where family members are not in support of you or your decisions, you might be able to get support from the hospital/facility’s patient representative or ombudsman, social worker, clergy or spiritual advisor.
6. Anticipate transfers: Make sure when the patient is moved from one section of the hospital to another, or to a different facility, you know what treatments need to be continued or begun after the transfer. Meet with the medical team or head nurse to ensure that they are aware of the ordered treatment.
7. The squeaky wheel gets the…: Some medical professionals may not be as comfortable as others with your involvement. You may disagree with the doctor’s recommendations; it can be difficult to disagree with medical professionals and authorities. Be tactful and assertive. Insist that medical issues be explained to you in words you can understand. If their resistance becomes a problem, or if you feel you are not being heard, ask for help from the facility’s patient representative or ombudsman, social worker, clergy or spiritual advisor, ethics committee or ethics consultant.
8. Delegate: Retain the help of a private care manager if you are unable to work with the medical team on your own. A care manager usually has an advanced nursing or social work degree. They can help you understand the medical record, attend care conferences, and advise you if the care is deficient or inappropriate.

Now, take a deep breath. This is a big job that you might have to do. Remember, you are ensuring that your friend/family member continues to have a voice in their care, should the unimaginable situation occur. Steps 2-8 will be difficult, but good preparation can make the difference between you being ready to assume this responsibility or overwhelmed and unable to fulfill you obligation.

The Limbaugh Law Firm is here to help answer questions, support your decisions, or direct you to resources so that you will feel successful.

Part 3: As a Health Care Agent, What Do I Need to Know to Make Sound Medical Decisions?

If you have read through Part One: What is a health care agent?, and Part Two: I am designated as someone’s health care agent, now what?, you probably want to know how you can be effective in the roll of advocating for and making solid medical decisions. Unfortunately, experience in these situations is the best way to learn what to do and what to not do. Fortunately, The Limbaugh Law Firm has been supporting families for almost twenty years and we have learned a lot in the process.

Below is some of the best information we have gleaned through our experiences.

1. Find out the medical facts by speaking with the doctors and getting a complete picture of the situation. Questions you can use:

• What is the name of the condition or illness?
• If you don’t know exactly what is wrong, what are the possibilities?
• Are tests needed to know more?
• Will the outcome of more testing make any difference in how you treat? (If not, why do the test?)
• What is the purpose of each test?
• What are the risks associated with the tests?
• Is the information you need worth the risk of the test?
• How do you explain the symptoms?
• What usually happens with this disease?
• What do you think will be the likely course of this disease or condition?
• How severe or advanced is the situation?

2. Find out the options. Make sure the physician describes the risks and benefits of each option. You may want to ask:

• How will this option make him or her improve or feel better?
• What is the success rate?
• What does success look like?
• Can this procedure be done on a trial basis and then re-evaluated?
• What is an appropriate amount of time for a trial? Are you willing to stop after an agreed upon trial.
• What will it mean to his or her quality of life?
• What are the possible side effects?
• What option do you recommend, and why?

3. What Would (Judy) Do? (insert name of your friend/loved one). You have three possible approaches to making the decision:

• If you know the preferences, follow them.
• If you do not know your friend’s/family member’s wishes for the specific decision at hand, but you have evidence of what they might want, do your best to figure out what they would decide. This is called substituted judgment and it requires you to imagine yourself in the patient’s position. Consider their values, religious beliefs, past decisions, and past statements. The goal is to choose as the patient would most likely choose, even if it is not what you would choose for yourself.
• If you have very little or no knowledge of what the patient would want, then you and the doctors will make a decision based on what a reasonable person in the same situation would decide. This is called making decisions in the patient’s best interest. Evaluate the benefits and burdens of the proposed treatment. For example will the treatment cause the patient any pain or suffering? Is it likely to make the patient fee better or recover?

I bet you never thought you would end up here, when you Googled “power of attorney”! I know this is “adult” subject matter, but The Limbaugh Law Firm believes that knowledge gives you the power to make solid, educated decisions. We are happy to share what we have learned over the years, and if needed, answer any questions you might have. Contact us today.