Power of Attorney for Healthcare

Creating a power of attorney for healthcare can help protect you against uncertainties that arise should you be rendered incapable of making your own medical decisions, whether through illness or injury. A power of attorney for healthcare is a legal document giving another person the right to make health care decisions in your place. If a power of attorney directive is not in place, your family and loved ones may have to go through an expensive and time consuming court procedure in order to make your medical decisions.

What Powers Does a Power of Attorney for Healthcare Convey?

Typically, your healthcare agent will gain power of attorney over your medical decision only when you have been declared unable to act for yourself due to mental or physical disability. Under most powers of attorney, your healthcare agent will be able to:

  • Decide whether or not to continue life support services, even when ending such services would result in your death
  • Agree to or refuse treatment plans, medications, and pain management
  • Access your medical records and information
  • Contract for your healthcare services
  • Determine which doctors and specialists will treat you
  • Decide about organ and tissue donations, autopsy and disposition of remains

You do not have to allow your healthcare agent to make every decision above. Your power of attorney can grant only the powers you wish to give your agent. Similarly, your healthcare agent cannot go against other directives you may have made, such as a living will. When creating your power of attorney, pay particular attention to the powers you're granting your agent and when those powers are triggered.

Who Should be Your Healthcare Agent?

Your healthcare agent should be someone who knows you well and who you trust to carry out your wishes. Before selecting an agent, make sure to discuss what you would want done in the event of a medical emergency. Be certain that they will respect your goals and wishes. Often, individuals select a spouse, son or daughter, or close friend as their healthcare agent.

Be aware that your agent might not be available when needed. Designating at least one back-up agent can help you avoid any complications should your primary healthcare agent be unable to make decisions on your behalf.

Important Issues to Keep in Mind

It's important to avoid any issues that would prevent your power of attorney for healthcare from operating properly. Some issues to keep in mind include:

Using Co-Agents

More than one person can act as your healthcare agent. This is most common when two or more children are given your power of attorney for healthcare. However, to make a decision on your behalf, all or a majority of your agents must agree. If they don't, they may have to go to court, creating costly and time consuming delays.

Using a Divorced Spouse as an Agent

If you make a power of attorney directive naming your spouse as your healthcare agent and you two later divorce, some states, such as Texas, will automatically revoke the power of attorney.

Conflicts Between Healthcare and Financial Agents

If you have created a power of attorney for healthcare, you may have also created a power of attorney for your finances. As with co-agents, your healthcare agent and your financial agent may disagree on your best interests, creating burdensome conflicts. It's important to select agents who you believe will work well together.

State Requirements

Every state allows for medical power of attorney directives, but the exact requirements vary from state to state. For example, Ohio and Texas don't allow you to use a universal or generic form to create a power of attorney. California and New York impose strict witness requirements if you're in a nursing home. Consulting with an attorney prior to creating a power of attorney for healthcare can help you avoid having your directive challenged because of a technicality.

If You've Been Called to Act as Someone's Agent

If you've become the healthcare agent for someone who is unable to make their own medical decisions, it's important that you act with their best interests in mind. Actions that directly or indirectly benefit you personally may be suspect. An attorney can help explain the actions available to you and any precautionary steps you can take to prevent your decisions from being challenged.

If you're considering creating a power of attorney for healthcare or have been designated as someone's healthcare agent, contact an experienced estate planning lawyer to discuss your options.

Next Steps

Contact a qualified elder law attorney to help you and loved ones plan care and address problems.

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