A Durable Power of Attorney for health care (DPOA) is a stronger form of an Advance Directive than a Living Will because it enables you to appoint a health care agent or proxy to see that your health care preferences are honored. Not only is a DPOA harder to ignore than an Advance Directive with only written instructions, but also a health care agent can then make decisions on matters not covered in the written document. Your agent is someone who knows you well and has a better idea of what you would want than the hospital staff. In addition, your agent has the advantage of NOT being either in crisis or in a coercive inpatient situation, personally. This frees him/her to insist energetically that your advance wishes be respected, at a time when your own self-advocacy skills are likely impaired.
Although the legal authority for setting up a DPOA for all health care decisions was established under the federal Patient Self Determination Act of 1990, these rights must be asserted to make them both real and inclusive. This is true of all new civil rights laws, such as the Americans with Disabilities Act (ADA), also passed in 1990.
Three important elements in making a DPOA work for you:
- Select your agent with care. Will the agent carry out your wishes or will the agent impose on you what they would have wanted for themselves or what they think is best for you? Does your agent know the psychiatric system well enough to be useful in enforcing your wishes? Even more important, does the agent have the gritty determination sometimes needed to go to bat for your preferences even when they conflict with a doctor’s idea of what you need?
- Be as specific as possible in your written instructions in a DPOA. Address physical as well as psychiatric incapacity. Whenever possible, write out instructions of what you do find useful in a crisis: Advance Directives are not only for refusing treatment. For the minority who find it comforting to have the system control them when they lose self-control, state very clearly what treatment you want, by whom, in what circumstances.
- Good lawyers with a fighting spirit are needed to enforce this right. Find a client-friendly lawyer who is willing to challenge the mental health system’s view that mental health patients are not entitled to the same rights as physical health patients. Lawyers who are only adjuncts to the mental health system, content with the status quo of vastly unequal rights, and who fiddle a little to insist on some minimal due process within the framework of far fewer rights than accorded those persons accused of serious crimes, will not help.
A note of caution:
There will always be a certain number of bad outcomes. For psychiatrically disabled persons who can be coerced by providers or others to sign DPOAs appointing agents who will violate their wishes, the critics of Advance Directives are correct: the DPOA will only increase a person’s oppression. The same is true of a Release of Information, which can provide valuable help to allies fighting for a person’s rights, but can also reduce her/his privacy if one is signed under coercion. Until these individuals find the fortitude, spiritual strength and self-love to assert themselves, they will remain impaired and continue as pawns on the chessboard of their own lives. This happens now.
For those willing to use them and able to get good legal back-up, DPOAs are a useful tool for rights. It is my prediction that if pursued, they will eventually be routinely honored, without all the struggles experienced by the pioneers of today. Why should Alzheimer patients have their advance wishes respected more than mental health patients? Where are the advocates for “mental health parity”?
Xenia Williams is a recovered ex-patient working in a psychiatric crisis facility in Vermont. She is co-plaintiff in a DPOA enforcement lawsuit against Vermont State Hospital, as DPOA agent.