Medical Records and the Law

286 CHAPTER 8: DOCUMENTATION AND DISCLOSURE:SPECIAL AREAS OF CONCERNThe exact wording of durable powers of attorney for health carevaries from state to state and, like that of living wills, is dictated largelyby models contained in the statutes. In general, these documents grantagents full power and authority to make healthcare decisions for principalsto the same extent that principals themselves would if they werecompetent. In exercising this authority, the agent must, to the extentpossible, make decisions that are consistent with the principal’s desiresusing the substituted judgment doctrine, 64 or that are based on whatthe agent believes to be the principal’s best interests. 65 The power of attorneycan enumerate specifically the principal’s desires as to differenttypes of life-sustaining measures, admission or discharge from facilities,pain relief medication, and anatomical gifts. It also should allowthe agent to gain access to the principal’s medical records to be able tomake informed decisions.Of paramount importance is the actual determination of the principal’sdisability or incompetence. The durable power of attorney shouldstate who will determine the principal’s incompetence, and should setthe standards to be used in making that determination. It is best for oneor more physicians, named in the document or chosen according to aprocedure established in the document, to determine incompetence. 66Disability and incompetence should be defined in the durable power ofattorney, and should be mutually acceptable to the principal and physiciansinvolved. Copies of the durable power of attorney should be givento the attorney-in-fact, the principal’s physician, and close familymembers. As an additional safeguard, the document also should be includedin the patient’s medical record.A competent principal can revoke the durable power of attorney atany time. The instrument also may be terminated if it contains an expirationclause. An expiration clause allows the principal periodically toreconsider the directives in the writing.64Substituted judgment means that the decisions of the surrogate should be based on whatthe patient would have decided if he or she had been able to do so at the time; in moststates, it is the legal standard that applies in the absence of an explicit statement of desiresin an advance directive. See, e.g., Idaho Code § 39-4505; D.C. Code § 21-2006(c);Cal. Prob. Code § 4604.65The American Bar Association Commission on Legal Problems of the Elderly hasadopted a model Health Care Powers of Attorney containing this broad grant of authority.See also D.C. Code § 21-2006(c)(2).66The ABA model suggests that incapacity should be determined by the agent and the attendingphysician.