Medical Power of Attorney

What Is a Medical Power of Attorney?

The purpose of any Power of Attorney is to name decision makers to act on your behalf if you are for any reason unavailable.  Typically, the decision makers named in a Power of Attorney are called an "Agent" or an "Attorney-In-Fact."  This does not mean they are your lawyer.  And one does not have to be an attorney to be named as "Attorney-in-Fact".  It means the designated Agent has authority to represent you and act on your behalf for certain specified purposes.

The purpose of a Durable Power of Attorney for Health Care is to designate persons with the legal right to make medical decisions on your behalf if you are unable to make those decisions yourself.

These decisions may include giving consent for medical care, authorizing various medical techniques and surgeries, and generally making decisions as to the type of medical treatment you are to receive. The person named in your Durable Power of Attorney for Health Care is either your "Agent" or your “Attorney-in-Fact.”  Different states use different terms.

What Makes a Power of Attorney "Durable"?

A Power of Attorney is "durable" if it is still applicable even when you are incapacitated.  Historically, a Power of Attorney arose under the legal doctrine of "agency".  A "Principal" appoints an "Agent" to act on behalf of the "Principal".  But the Agent can only do what the Principal has the capacity to do.  So if the Principal is incapacitated and unable to act, so is the Agent.  This, of course, leads to trouble when we want to have an Agent act our behalf at a time when we have medical or age related diminished capacity.  That is why most jurisdictions have laws that recognize that upon certain conditions a Principal's appointment of an Agent can be "Durable" and allow the Agent to act even when the Principal is incompetent.

Notably, contrary to what a lot of people think, once the Principal is deceased, the Agent can no longer act.  While this is technically the case, we have seen countless instances where Agents were still permitted and in some cases even required to act after the Principal had died.

What is a Medical Directive?

A Medical or Health Care Power of Attorney is technically different from a Medical Directive.  A Medical Directive is a decision you have made.  For example, for medical or religious reasons, a person may decide in advance that they do or do not want a particular medical procedure.  Such advance medical decisions are a Medical Directive.  You are directing what you want to have happen medically.  The Medical Power of Attorney, on the other hand, primarily designates who will make such decisions for you if you have not already made them yourself.

So, even if you have a Health Care Power of Attorney, when you go to a medical provider for a particular procedure, they will often ask what you do and do not want among available options associated with that particular procedure.  Your decisions in that regard, are Medical Directives.

If you are going to have a medical procedure and you have not previously give a Medical Directive for that particular treatment, the persons you have named in your Medical Power of Attorney can make those decision for you.

Who Should I Name as Medical Agent or Attorney-In-Fact?

Because of the very personal and intimate nature of the decisions, it is important that you name people who know and will honor your health care wishes as Agent or Attorney-in-Fact under your Durable Power of Attorney for Health Care.  This list can be more expansive than other lists of decision makers.  For example, you may only want two or three persons named in a financial or Durable General Power of Attorney.  The filter suggest for Medical Decision Makers is that you list anyone you trust that would rally round you to help in the event of a medical emergency, and then you rank them in order of decision making priority.

We have seen situations where persons low down on the list far behind others in terms of decision making priority, are nevertheless able to act as an advocate for the patient because they are named in the Medical Power of Attorney.

The Court Alternative to Naming Your Own Decision Makers

Without the Durable Power of Attorney for Health Care, doctors may insist on the court appointing a special guardian to make these medical decisions for you.  This can result in intrusive and complicated court proceedings, attorneys’ fees.  Typically there will be at least one court-appointed physician as well as an investigator or case worker.  This results in significant costs and time delays.  It is better for you to name who you want to make medical decisions on your behalf rather than deferring this decision for the court to make.

A Medical Power of Attorney or Health Care Power of Attorney is NOT the same thing as a Living Will.  Most of the time, a Medical Power of Attorney is invoked when you are not in an end of life situation.  A Living Will is specifically for end of life care management.  Some of the same needs can be satisfied through both documents.

In some instances, if doctors are reluctant to honor a Living Will, a Durable Power of Attorney for Health Care may carry greater weight and be more enforceable.  In this way, the Durable Power of Attorney for Health Care can serve as a backup to the Living Will.

How Often Should I Update My Health Care Power of Attorney?

There is no hard line answer to this question.  The general rule, and our standing recommendation, is that you update your Medical Power of Attorney and related "basic documents" every five years.  That is because people's circumstances and wishes change.  At the same time, we have seen instances where twenty year old documents worked just fine.  On the other hand, we have seen three year old documents fail because of a change in the family such as a death or divorce.

You should review your emergency documents at least once a year.  It is your responsibility to make sure your documents are up-to-date.  Then you should consult with your attorney roughly every five years to check on whether an up-date is appropriate even if you have not had a lot of life changes.  We strongly recommend you consult with your legal counsel on this point.