Having a medical power of attorney, as well as a living will, can help assure you receive the medical treatment you desire if you are incapable of making or communicating medical treatment decisions. Together, these documents are sometimes called advance directive documents.
What Is a Medical Power of Attorney?
A medical power of attorney (also known as a health care power of attorney or durable power of attorney for health care) is a legal document that authorizes someone you trust (called an agent, attorney-in-fact, or surrogate) to make medical decisions on your behalf. The agent only has this authority if it is determined by your doctor that you are incapable of making such decisions, or you are unable to communicate your wishes, if you’re in coma, for example.
Difference from a Living Will
A living will (sometimes called an advance directive, health care directive, or advanced medical directive expresses your wishes regarding medical treatment in very specific situations. It is more limited than a health care power of attorney. A living will does not appoint anyone to make decisions for you, and only applies if you are in a terminal condition, or in a permanent unconscious condition. A few states also permit a living will to be effective when “the burdens of treatment outweigh the expected benefits.” Therefore, if you are temporarily incapacitated but are expected to recover from an illness or injury, a living will does not come into play and does not allow someone to make treatment decisions for you. Only a medical power of attorney would help in this situation.
A living will and a medical power of attorney may be incorporated into a single document, or can be separate documents.
Selecting Your Agent
Legally, an agent must be a mentally competent adult. In most states, the law provides that someone who is your health care provider may not serve as you agent. It does not need to be a family member. As a practical matter, your agent should be someone you trust to carry out your wishes and to act in your best interest. You should make sure that your agent understands your wishes regarding various treatments you would, or would not, want if you are terminally ill or injured; and will honor those wishes. Communicating your wishes can be through a discussion with your agent, through a living will, or both.
You want an agent who is not easily intimidated by doctors or other medical professionals. Your agent may need to take a strong stand to follow your wishes if they go against the medical advice. It would also be a benefit to have an agent who is fairly knowledgeable about medical science, even if not formally educated in the subject.
You want to be sure that your agent will follow your wishes, even if they don’t agree with your choices. For example, if you want all medical treatment withheld if you are in a terminal condition, you may not want to select as your agent someone who has strong religious beliefs that life should be preserved at all cost.
Your agent should also be someone who is willing to accept the responsibility. Some people are better suited than others to make the difficult decision to stop life support and let the person go. Many people appoint a spouse or adult child as their agent, but will that spouse or child be able to make such an emotionally traumatic decision?
Can There Be More Than One Agent?
Although you can name more than one agent, it is not a good idea because problems will arise if the agents can’t agree. If there is more than one person you would trust to be your agent, it would be better to name one as a successor or alternative agent, who would have authority in the event the primary agent is not available or declines to act when the time arises.
About three-fourths of the states have developed a fill-in-the-blank medical power of attorney form, which is incorporated into the state law. Many incorporate a living will into this form. State forms may also include a comprehensive power of attorney document that gives the agent a wide range of financial authority in addition to medical authority. Some states also have a form specifically for mental health decisions.
You are not required to use the form adopted by your state, but it is a good idea to use it since the health care providers in your state will be more likely to accept the state form without question.
You will need to sign the form before witnesses, and in some states this must be done before a notary. The law in many states provides that certain persons may not serve as a witness—this typically includes health care providers and anyone who may inherit from you.
Using Advance Directive Documents
A medical power of attorney and a living will are only useful if your health care providers know they exist. You agent should have the original, and your regular doctor should be provided with copies to keep in your medical records file. If you are planning to enter a hospital, you will probably be asked prior to admission to provide the hospital with copies of your documents.
However, in an emergency the hospital probably won’t be aware of your documents until your agent is contacted and produces them upon arriving at the hospital. In this case your agent should only use the medical power of attorney at first. Only if someone questions whether your agent is acting according to your wishes would the living will be produced to support the decisions being made.
With a health care power of attorney medical decisions can be made in accordance with your beliefs and wishes in the event you are incapacitated. Legally designating a trusted friend or family member to speak for you will help assure your desires are carried out.