A living will is an important document to have, but it has limitations. A health care durable power of attorney (DPOA) is a more versatile document that allows you to appoint a health care agent to act on your behalf. Read below to find out why you need a health care durable power of attorney.
What A Health Care DPOA Does
A health care DPOA allows you to appoint a health care agent or representative to make decisions on your behalf if your condition doesn’t allow you to make your own decisions. The health care DPOA applies to all health care decisions for all types of medical conditions, not just when death is imminent or you are in a vegetative state. It gives you an opportunity to outline your philosophy as to the types of treatment you want to receive or decline including end-of-life care. Thus, it is much broader than a living will, which only expresses your desires if you are terminally ill or permanently unconscious and are unable to express your wishes regarding the use of life-prolonging procedures.
Who Can Make A Health Care DPOA
Generally, you must be at least 18 years old to execute a health care DPOA. Additionally, you must be mentally competent to understand what the health care DPOA is and what powers it gives your health care agent.
Benefits of a Health Care DPOA
A health care DPOA may be one of the most important legal documents you will ever sign. Unfor-tunately, you never know when you might suddenly need someone to make medical decisions for you. Every year in the United States over 700,000 people have a heart attack and 800,000 suffer a stroke. A health care DPOA allows you to prepare in advance for this kind of emergency health crisis. The health care DPOA ensures that the right person will be making decisions for you and those decisions are consistent with your personal values and wishes.
Who Makes Medical Decisions For You When You Don’t Have A Health Care DPOA
When you are unable to make medical decisions and do not have a health care DPOA, state laws give family members decision making authority with a spouse having top priority, followed by adult children, parents, adult siblings, and more distant relatives.
This makes sense because generally family members are considered to be in the best position to know what treatment decisions you would make for yourself if you were able. However, there is no guarantee that a decision made by a family member won’t cause problems. When stress is high and a loved one’s health hangs in the balance, conflicts among family members are possible. Further, some family members may make decisions based on ignorance, a desire to end family distress, or downright bad faith and personal motives. Depending on the situation, the most knowledgeable decision maker may not even be a member of the family.
For these reasons, it is much better for everyone– you, your healthcare providers, family, and friends if you have a health care DPOA.
Whether you have a health care DPOA or not, you should have conversations with key people in your life about your wishes for medical treatment. Do this for your family and not just yourself. Let them know what you want them to do if the time comes that they must speak for you.
Why You Need A Health Care DPOA Even If You Are Married
By signing a healthcare DPOA, you help ensure that the right person will be making decisions for you and that you will receive the best and most appropriate health care possible. You should have a healthcare DPOA even if you are married. If you have a spouse and children from previous relationships or adult children, they may disagree about your treatment or which of them should be the decision maker. The appointment of the health care agent will reduce conflict in this high stress situation. If you want to name someone other than your spouse to be the decision maker, you will need a health care DPOA. Additionally, if you and your spouse are in a simultaneous accident, your health care DPOA can name a successor or alternate health care agent to act on your behalf.
Why You Need Both a Living Will and a Health Care DPOA
Preparing for the unexpected means having the right documents in place. As discussed here, a living will and health care DPOA serve different legal functions. A living will is limited to end-of -life situations. It is used to express your wishes regarding life-prolonging measures if there’s no reasonable hope of recovery, for example, in the event of brain death, permanent unconsciousness, or terminal illness.
A healthcare DPOA, on the other hand, covers all health care decisions and lasts only as long as you are incapable of making decisions for yourself. It is also the legal document that allows you to appoint a health care agent to act on your behalf. Therefore, it is important to have both docu-ments. Often state forms combine the two in one document.
Choosing Your Health Care Agent
Whom to Choose
The person you name in your health care DPOA and trust with your healthcare decisions is called your health care agent. (Other terms you may encounter are health care surrogate, proxy, or rep-resentative.) If you cannot communicate or your health prevents you from making decisions, your health care agent will step into your shoes. Your agent will make health care decisions based on what you outline in your health care DPOA, living will, and what he or she understands your wishes to be. Obviously, your choice of health care agent is of critical importance.
When considering whom to choose, look for someone who:
- Knows you well and is willing to talk to you about sensitive issues, including end-of-life care.
- Understands your values and wishes, respects them, and will forcefully pursue them despite opposition.
- Is immediately available, reliable, and willing to serve.
- Is articulate and has strong advocacy skills.
- Understands medical issues.
- Is able to deal with potential family conflicts.
Most people choose their spouse, an adult child, or other close adult relative. But your health care agent does not need to be a relative. A trusted friend is a fine choice. If you have named an agent for financial decisions under a financial durable power of attorney, you may want to choose the same person as your health care agent. As a general rule, you may not name any of your doctors or other health care providers or employ-ees of your health care providers or of the hospital or other facility at which you receive care.
Choosing More Than One Agent or an Alternate Agent
Many states allow you to appoint two or more persons to serve as co-health care agents. For most people, appointing co-agents is not a good idea. The agents may disagree, which can confuse health care providers and delay a crucial decision. The stalemate could even need to be broken by a judge. In most circumstances, the better choice is to name one primary health care agent and one or two successor agents. A successor agent serves only if the first health care agent is unable or refuses to serve.
This is ultimately your decision and should be based on your individual circumstances.
What Decisions Your Health Care Agent Can Make
You can decide what decisions you want your health care agent to make. You can give your health care agent broad authority to make virtually all health care decisions for you if you are unable to make them for yourself. Or you can limit the agent’s power. Some people limit their agent’s power to the instructions in their living wills.
With broad powers, your health care agent will be able to:
- Access your medical records.
- Decide in which medical facilities you will receive care. Choose your health care providers.
- Visit you when you are in a hospital or medical facility
- Consent to or refuse most types of medical and mental health treatment. State law may provide that certain treatments cannot be authorized by your health care agent. These typically include abortion and some extreme mental health treatments. Your agent also cannot authorize treat-ment or withdrawal of treatment in conflict with your living will. Furthermore, your agent must make your health care decisions according to the agent’s knowledge of your wishes, which is why it’s so important for you to have a candid discussion with him or her. If the agent does not know your wishes, the agent must base the health care decisions on your best interests.
So long as you have full confidence in your agent, consider giving him or her broad powers to make decisions for you as it can be difficult to foresee what anyone’s medical needs may be in the future. Giving your agent full authority may reduce the chances of having the issue end up in court.
Executing And Distributing Your Health Care DPOA
Execution Requirements For A Health Care DPOA
Each state has its own execution requirements for a completed health care DPOA to become effec-tive. Some states provide a form, the use of which may or may not be mandatory. You will need to verify your specific state’s requirements and may want to consider seeking counsel to advise you. After the document is completed, it will need to be executed. Most states require you to sign and date the document in front of either two witnesses or a notary. Certain persons may be disqualified as witnesses such as relatives, beneficiaries of your estate, the person named as your agent, and your health care providers.
What To Do With Your Health Care DPOA
Once you have properly executed your health care DPOA according to your state’s requirements, you should keep the original document in a safe, but accessible place. Tell someone you trust where it is and make sure that person can access it.
Provide copies to your regular health care providers, to your agent, and to any alternates. Your agent may need a copy to prove his or her authority to medical personnel. If you are admitted to a hospital or care facility, provide it with a copy as well.
When A Health Care Dpoa Goes Into Effect
Your health care DPOA goes into effect when you become unable to make your own health care decisions. Until then, you have the right to make your own health care decisions.
Before your health care DPOA goes into effect, state law typically requires at least one doctor to certify that you lack the capacity to make your own health care decisions. Lacking capacity usually means (1) you cannot understand the health care choices that are available to you including the risks, benefits, and alternatives to these choices, or (2) you are unable to articulate your wishes in any way, including orally, in writing, or through other gestures.
Some states permit you to give your health care agent the authority to manage your medical care immediately without waiting for a doctor’s determination of incapacity. Even if you choose this option, your health care agent must always act in your best interests and diligently try to follow any health care wishes you’ve expressed in your health care DPOA and living will.
Circumstances Under Which Your Health Care DPOA Might End
Your executed health care DPOA will remain in effect as long as you are alive unless you or a court takes action to terminate it. Below are some circumstances in which your health care documents can become ineffective:
You Revoke Your Health Care DPOA
You have the right to amend or revoke your health care DPOA at any time as long as you remain mentally competent (see G below). If you revoke your health care DPOA make sure your agent(s) and health care providers know the document has been revoked and is no longer effective.
A Court Determines Your Health Care DPOA is Invalid
Although very rare, under certain circumstances, the validity of your health care DPOA may be questioned. In these situations, a court may need to determine the validity of the document. Challenges tend to be more common when family members disagree with choices your health care DPOA expresses, or people have issues with your health care agent. Some reasons a court can rule on your health care DPOA include:
You Lacked Mental Capacity
If someone doubts that you had the requisite mental capacity at the time you prepared your health care DPOA, that individual can file a motion in court to invalidate your health care DPOA. The person bringing the motion in court bears the burden of proof. This means the law presumes you had the mental capacity and the person filing the case has to prove otherwise.
Execution Was Improper
Every state has specific execution requirements for a health care DPOA. If your document was not properly executed, a court can invalidate it. An example might be if you did not have the document notarized and state law requires notarization for the document to be valid. However, in these situations, your intentions outlined in the health care DPOA may still be relevant and used as evidence of what your wishes are. In a United States Supreme Court case, Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the Court determined that an improperly executed health care DPOA can be used as strong evidence of someone’s wishes for care and still be honored. In other words, your wishes should not be ignored simply because of a technical error.
Your agent’s authority is revoked
A health care agent is obligated to make decisions based on your wishes in your health care DPOA. If your health care agent does not act according to your best interests or wishes, any concerned person can ask the court to review the health care agent’s behavior. If a court finds that your agent is acting improperly, it will revoke the agent’s authority. Then, the authority will pass to the alternate agent you named in your document. If your health care DPOA does not name an alternate, a conservator or guardian may be appointed to make health care decisions for you.
A health care DPOA is no longer valid once you die. However, some of the directions or instructions in the document may remain effective after your death for some very limited purposes. For example, your health care agent may be allowed supervise the disposition of your body, including authorizing an autopsy or organ donation if your health care DPOA gives these powers.
A divorce will have no effect on the validity of your health care DPOA, but if you named your spouse as your health care agent, his or her authority is automatically revoked in some states. In this circumstance, if you named an alternate, he or she will become the agent. How-ever, to avoid confusion, it is best to execute a new health care DPOA after a divorce.
Changing Or Revoking Your Health Care DPOA
Over time circumstances can change and you may want to change or revoke your health care DPOA. You will need to take an affirmative step to revoke the document, usually by physically destroying the actual document and all copies or executing a written revocation. Make sure to check your state’s revocation requirements. Once you revoke your health care DPOA, you should notify your health care agents and your health care providers of the revocation.
Additionally executing a new health care DPOA revokes any previous document as long as it so states. Make sure your health care agent and your health care providers are notified and have copies of the new document.