Determining Who Has Authority



The Care Recipient Always Has Final Decision Making Authority

Provided  Competency Is Present


       Determining who has authority and the right to final decision-making is often unclear. The person receiving care always maintains final decision-making authority over his care, as long as he remains competent. However, other family members may want to have a say in the decision-making process. In addition, the caregiver may need the authority to make swift decisions since healthcare providers often come to the caregiver for guidance. Unfortunately, complicating matters for the caregiver may be other family members who have strong opinions in opposition to the caregiver who insists on having a say. Therefore, one of your priorities must be deciding who has decision-making authority and over what matters. 


No Time to Decide Authority During Emergency


          Clarify who should make decisions, the caregiver or another family member, before a crisis occurs. During an emergency, you don’t have time to go to a judge to decide who has the authority to sign papers to make life-determining decisions.

     You may feel uncomfortable talking about the need for a power-of-attorney (POA) at this stage of an illness. Your family member may be doing very well, and you don’t want to appear morbid by asking for decision-making authority. However, it’s best to have a POA in place before an emergency occurs because time can be critical on those occasions.  

Law Designates Next of Kin if Not Specified 

     Why would a caregiver need decision-making authority anyway? Isn’t it true that the law grants authorization based on a designated process if an individual cannot make decisions? Yes, that’s true. However, there are many times when a decision is needed before an individual is declared legally incompetent. Furthermore, if there is a question regarding who should have authority, a court will need to determine the outcome. Court decisions are required when two or more decision-makers of the same authority level are available. It is not uncommon for a decision to be removed from families and placed into the court’s hands due to a family not having a will or legal POA.

 Power of Attorney Used for More than Final Decisions   

     The designation of power-of-attorney serves many purposes. The POA has permission to act as a representative and sign most legal documents on behalf of the person granting authority. If the family member cannot respond to questions, the POA can handle bank matters and contract negotiations. If the care recipient wants to limit someone’s powers, they may write in the restrictions.

Medical Decision Maker Designation Included in Will in Virginia

     In some states, the person’s Will includes reference to the Medical Decision Maker’s identity. In other states, the POA incorporates the medical decision documents, while others are separate documents. In Virginia, they can be part of the POA so that the POA becomes a Medical Power of Attorney and a Power of Attorney. A Medical POA grants you the authority to make medical decisions about the care recipient; however, if there is an advance directive, there is an expectation that you will follow the instructions as directed.

      You, as the caregiver, need to know your boundaries. You want to ensure you are not stepping over an imaginary line that your family feels you should not cross. If you do, it will erode their trust. The family member can decide and spell out explicitly in their Will the limit or breath of the POA as a comprehensive document or make two separate documents–a Will and a Medical Declaration statement.

Rights of Refusal

          Keep in mind that no matter if there is a POA, Will, or anything else, the person who wrote them can always change their mind! They have the final say. Your family member ALWAYS has the last word on every decision about their health if they are of sound mind, meaning they can understand their decision-making consequences. The family may not agree with or like the care recipient’s decision, but that person has a right to decide their destiny.

     On the flip side, even though the family member can make their own decisions, they cannot mandate that YOU do anything TO them that you don’t want to do. Your family member does not have the right to direct you to do anything illegal, unethical, or immoral (such as assisted suicide). Although you have a right to refuse to do as requested, your family member also has the right to fire you.


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