Damar Hamlin Illustrates POA Importance

Football fans everywhere stood stunned last Monday night when Buffalo Bills safety Damar Hamlin collapsed on the field. He was resuscitated, then carted off to the hospital. He’s now recovering from the cardiac arrest, talking and breathing on his own. But for several days, he was sedated while his medical team assessed his condition.

Hamlin’s Situation Informative

No one expects such a thing for a 24-year-old athlete. It’s a startling reminder that a crisis can leave any of us unable to make our own medical decisions. That’s important because we can plan for that. Any typical estate plan will include powers of attorney, which designate “agents” to act on your behalf if you ever are unable to make your own decisions. Powers of attorney come in two varieties: finances and health care. You need both.

In addition, a “Living Will” can give your agent and medical team instructions about your wishes for care–or when care should stop. The Health Care Power of Attorney and Living Will are collectively go by the term “Advance Directives.”

In a situation like Hamlin’s, there are a variety of power-of-attorney issues that come to mind. Obviously, he easily obtained the best care possible, so he likely had proper documents in place. (One would hope his employer would insist, given the risks involved in his profession.)

Power of Attorney Basics

They Are for Everyone. Hamlin’s collapse is exactly why health-care powers of attorney are important for every adult – even young people. If there’s no health-care agent named, state statutes may provide a mechanism for selecting a decision maker. In Arizona, A.R.S. 36-3231 sets out an order of priority. It’s 1) court-appointed guardian, 2) spouse, unless legally separated 3) adult child, or, if more than one, consent of majority 4) parent (either one), 5) if unmarried, domestic partner, 6) brother or sister, or 7) a “close friend” of the patient.

Avoids Guardianship. If there are disagreements among family members, a court proceeding may be required to appoint a guardian to make decisions for the incapacitated person. Such proceedings are often time-consuming and emotionally and financially draining. In the end, someone other than the incapacitated person’s intended person could end up with decision-making power. This is particularly true with unmarried partners; domestic or same-sex partners may not be on the priority list at all. (In Arizona, “domestic partner” comes after parents.) Appointing an agent can avoid this process.

Other Notable Issues

Take Care With Care Directives. Hamlin was on a ventilator for the better part of three days. Many Living Wills specify that the agent not authorize use of a ventilator. Situations like Hamlin’s (and those who have survived COVID-19 hospitalization) suggest such provisions may be more restrictive than makes sense for many of us. It’s a good idea to review your Living Will and really think about what you might want; Google the terms, if needed, so you make an informed decision.

Who’s In the Room? Arizona has a visitation statute, which allows you to grant your agent the authority to determine who can visit if you are unable to decide. Hamlin’s situation illustrates how such authority could play out. Hamlin’s mother mostly raised him; his father spent several years jailed on drug charges. One can assume his parents haven’t always gotten along. Assume Hamlin had an Arizona POA, named his mother as agent, and granted her the power to determine visitation. She could then exclude Hamlin’s father from visiting for whatever reason. On the other hand, if she didn’t have visitation authority and dad were disruptive, she would need to get a court order to exclude him. In real life, both have been at his side. In some families, keeping the peace could involve a schedule.

Hamlin’s Case Illustrates More

Resuscitation? Hamlin’s case also illustrates what it can mean to have a “prehospital medical directive,” commonly referred to as a “DNR.” In Arizona, A.R.S. 36-3251 allows you to execute a document that “directs the withholding of cardiopulmonary resuscitation” by emergency personnel. These documents are applicable only in emergency situations. Like when Hamlin collapsed. If he had executed one of these forms, emergency personnel should have done nothing to revive him. The forms do not mean you wish to withhold ordinary medical treatment.

Where Are We? Even if Hamlin executed a health care power of attorney, his agent could have faced challenges. He collapsed in Cincinnati; he plays for Buffalo; and he’s from a small town outside Pittsburgh. Why does it matter? State law governs these documents. It’s unlikely Hamlin’s POA was an Ohio document. Although most states have a reciprocity provision, each can limit acceptance to the degree a document is consistent with state law. People who frequently travel should consider having documents for both states (make sure neither revokes the other) or ensure  home-state documents conform to the laws of your vacation hot spot.

What About the Money? For health care, states often have statutes that can help designate a “surrogate” for making decisions. But with financial matters, there is no such equivalent. In Arizona, if accounts are held in an individual’s name and there’s no agent named in a power of attorney, a court proceeding to name a conservator is required to manage finances. That’s right, even spouses cannot act for an incapacitated person who holds accounts in his or her sole name. A conservatorship proceeding, like a guardianship proceeding, can be time-consuming, and emotionally and financially draining. A simple power of attorney can avoid that.

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