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Roses are Red, Nuedexta is Too, So a POA's the Thing to Do

by David Sheffield

Arizona Elder Law Attorneys and the general public have been watching developments in the unfolding story about the drug Nuedexta and its use in nursing homes. As reported here [http://www.cnn.com/2017/10/12/health/nuedexta-nursing-homes-invs/index.html] by CNN, Nuedexta is a drug which was approved to treat a rare condition usually associated with ALS and MS but has recently been marketed to nursing homes for use with dementia patients.

The medical benefits of the drug for dementia patients are questionable but marketing the drug to nursing homes has been undeniably profitable for Avanir, the drug's manufacturer. The drug has also been growing in popularity among nursing homes, especially those which customarily use mental health drugs to help manage the mood and outbursts of dementia patients who tend to be emotionally unstable. State and federal regulatory agencies are investigating the marketing and use of this drug in particular, but this case is a good general reminder that in addition to designating someone to make medical decisions, it can be helpful to create a mental health power of attorney as well.

In Arizona, anyone of sound mind over the age of 18 can (and should) create a medical power of attorney to designate one or more agents to make medical decisions when the principal is unable to do so for themselves. Arizona law also allows a person to grant certain mental health powers either as part of a valid medical power of attorney, or as a separate document. Doing so is a good idea because increasingly common issues like the use of psychiatric medication, an agent's access to therapy records, and whether a person can be placed in inpatient mental health care are often not addressed in a standard medical power of attorney.

A well-drafted mental health power of attorney also allows a person to express their preferences about mental health treatment in advance, which can be very helpful to the people chosen to act as health care agents when faced with the decision about whether and how to medicate a principal with mental health concerns. Naturally, the answers to such questions are usually informed by the person's doctors and care facilities, but they should also be informed by a clear document from the principal describing when and how they consent to mental health treatment. While a mental health power of attorney may not prevent an agent from following the advice of a doctor or a care facility with a conflict of interest, it can remind the agent to check for such instructins and to stop and think about whether the advice they receive is what's best for their loved one

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