Choosing your Medical Power of Attorney
If an accident or illness left you unable to provide the kind of input needed for your care, a durable Power of Attorney for Health Care (DPAHC) would allow you to give a health care agent as broad or as limited powers as you like.
The person selected as your Power of Attorney for Health Care can be called by a variety of names depending on the state you live. Some of those names include: Power of Attorney for Health Care, Health Proxy, Health Care Agent, Health Care Surrogate or Attorney In Fact. By selecting a Power of Attorney for Health Care, you potentially authorize the person you’ve selected to make any and all decisions concerning your health care treatment including personal care in the event that you are unable to do so yourself. A potential list of decisions your health care agent would be authorized to make include:
- The right to consent to or withdraw any medical treatment, hospitalization or healthcare including life-sustaining treatment.
- The right to select or discharge any care providers or institutions utilized in your care.
- The right of making any anatomical gifts.
- The right to access medical records.
- The ability to authorize an autopsy.
- The disposition of your remains.
Even though the creation of a DPAHC is a relatively simple document to create, the choice of a health care agent is one of the most difficult decisions you’ll ever make. Picking the wrong person for a medical Power of Attorney can cost you your life. (See this story on how it can go wrong.) Obviously, if you are going to give someone that much control over your health and wellbeing, you should take the time necessary to make a good selection. Unless you choose someone else, if you are legally married, your spouse is already designated by law to speak on your behalf in case of incapacity issues. Most people name their spouse, partner, a relative or close friend but those individuals may not be your best option. Aside from trust issues, the job can be time-consuming and stressful. Here are some suggestions for characteristics to look for in a good health care Power of Attorney.
Location: In a true medical emergency, your health care agent may need to make around the clock decisions about your care and may be needed for an extended period of time, in which case, you’ll want that person to be relatively close-by and available at all times.
Medical Understanding: Choose someone capable of understanding your medical situation or use language in the Power of Attorney to require the hiring of a professional such as a Geriatric Care Manager (if you need a Geriatric Care Manager, call 1(877)762-4464) to aid in making the best decisions for you. Your attorney in fact does not have to be medically trained but rather they must prove that they can listen and make rational decisions about medical care and do so without being emotionally squeamish. Discuss your medical situation and any medical decisions you’d like to have made before you sign the document.
Sense of loyalty: Your choices will be carried out in the face of emotional stress and turmoil. Choose someone who has your best interests at heart, is willing to follow your own healthcare wishes even when they are in disagreement with their own beliefs or wishes and has no personal grudges against any of your family members. Don’t grant any power to an agent that you don’t feel comfortable giving.
Willingness to serve: As was stated before, acting as someone’s medical Power of Attorney can be time consuming. Make sure the person you select is not only able to serve in the function you have assigned him or her but is also capable of setting aside the time to do so or use language in the Power of Attorney to require the hiring of a professional to help balance the load. (On a separate note, if you are going to require the hiring of someone you need to make provisions to make that possible.) If you choose your adult children, consider splitting the duties to match their abilities. A geriatric care manager can help with an assessment to provide some direction on what kind of care may be needed in the future.
Assertive: There’s nothing like family or in some cases your future self to get in the way of your own wishes. It’s important that the person or people you’ve selected are able to stand up in the face of opposition from family members and potentially you. In cases of cognitive decline, it’s not unusual for an individual to become oppositional, making it difficult for the attorney-in-fact to address your needs. A formal family meeting can be used to discuss the obligations of the person or people you have selected. This is a good time to consider hiring an outside mediator such as a lawyer or Geriatric Care manager to help facilitate the meeting. You can use the family meeting as an opportunity to talk about your wishes such as protecting your assets, avoiding becoming a burden on others and avoiding institutional care.
Some dos and don’ts
Choose a backup: People go out of town or otherwise become incapable of fulfilling their roles as Power of Attorney at the least convenient times. Make sure you have someone who can act in case the primary is unable or unwilling to serve in that capacity.
Provide copies: Copies should be given to your regular physician, your medical Power of Attorney and any family members, providing you with the opportunity to talk about the decisions you’ve made about your future healthcare.
Update documents: There’s no time limit on a Power of Attorney but it’s generally a good idea to re-visit your decisions and update the document every few years.
Have the document witnessed: It’s generally not necessary to have a Power of Attorney witnessed in Washington state but if you go out of state or have family members who are likely to make a fuss about a decision, a witness may help to avoid a legal challenge. No one related to you by blood or marriage can serve as witnesses.
Have a formal family meeting: The goals of most people include protecting your assets, avoiding institutional care against your wishes and avoiding a burden on others, but you need to tell your loved ones what that means for you. No one can achieve those goals alone so you need to get buy-in from the interested parties because if a Medical Power of Attorney is enacted, you’ll be relying on them to work together to see that your wishes are adhered to.
Don’t choose someone already involved in your care: Doctors, nurses, people who work at the nursing home where you reside cannot be legally appointed to be your Power of Attorney.
Don’t choose someone too young: No matter how responsible someone is, if he or she has not reached the age of majority in your state, he or she cannot make decisions for you.
A Medical Power of Attorney goes into effect when a doctor determines you lack the ability to make your own health care decisions either because you cannot understand the nature of the decisions you need to make or because you are unable to communicate your wishes. By having a Power of Attorney for health care you do not revoke the right to participate in your own medical care. Unless you state differently, a DPAHC only becomes effective when you no longer have the capacity to give, withdraw, or withhold informed consent regarding your care.
Your DPAHC remains in effect until you change or revoke it. This can happen at any time but you should make sure that your providers realize you have done so and if possible destroy the document. After your death, certain rights (such as authorization for autopsy or organ donation) may still be in existence unless you have specifically withheld those rights.
Don’t assume your loved ones will come up with the right answers on their own. It’s not the lack of a Power of Attorney that puts people into a nursing home. If you plan to see an elder law attorney for estate planning, a DPAHC will be part of the process anyway. You can also get one from your doctor or local hospital. However you get one, putting one together should be the beginning of a conversation with your family, loved ones and a medical or legal professional and not the end.
Additional articles you may find of interest: