A medical power of attorney is a document that gives the person you name as your agent the authority to make healthcaredecisions if you’re unable to do so yourself.
The power of attorney may be durable and take immediate effect or be springing and only go into effect when you are incapacitated (unable to care for your own health).
This article lists six characteristics to consider when choosing an agent for your medical power of attorney. It also explains how to organize a power of attorney for a parent or family member in declining health or someone who is already incapacitated.
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What Legal Rights Does a Medical Power of Attorney Grant?
The person you designate to make medical decisions for you is called an agent. The medical power of attorney gives the agent broad powers to make any healthcare decisions unless you specifically restrict their authority.
The rights vary by which type of power of attorney is issued:
- Durable powers of attorney: With a durable power of attorney, the power to make medical decisions can be immediate. These are often issued if someone is already incapacitated and a court has deemed them incapable of making their own decisions.
- Springing powers of attorney: With a springing power of attorney, the powers only spring into effect when a qualified physician legally attests that you are incapacitated.
A durable power of attorney can ostensibly be a springing power of attorney if it is stipulated that the powers are only granted when you are deemed incapacitated. However, with a durable power of attorney, the powers may be permanent, while springing powers of attorney are generally written so that the rights are rescinded once you are no longer incapacitated.
Healthcare Proxy vs. Medical Power of Attorney
The terms “healthcare proxy” and “medical power of attorney” are often used interchangeably. But a healthcare proxy generally implies that the agent can step in to make decisions while you are incapacitated but the right is rescinded when you are no longer incapacitated. With a medical power of attorney, the right to make decisions may be permanent unless otherwise stipulated.
What Are the Limitations of a Medical Power of Attorney?
The issuance of a medical power of attorney doesn’t give the agent unlimited rights. Some of the limitations may involve:
- Advance directives: The power of attorney generally does not override other advance healthcare directives, like a do-not-resuscitate (DNR) order, unless legally specified.
- Comfort care: An agent cannot deny or withhold treatments or medications intended for palliative care (comfort care).
- Abortion: Even in states where abortion is legal, state law may limit an agent’s ability to consent to an abortion, though some states make exceptions to save the life of the pregnant person.
- Psychiatric procedures: An agent cannot force you to undergo inpatient psychiatric procedures, like electroconvulsive therapy.
- Transfer of rights: The agent cannottransfer authority to another person.
- Financial or legal decisions: Unless stipulated, an agent can make no financial or legal decisions on your behalf, including the disposal of assets to pay for medical expenses. Upon your death, the power of attorney expires.
At the same time, a medical power of attorney is not granted in perpetuity. Depending on the state, it may only be valid for a certain number of years once it springs into effect.
Who Should You Pick as Your Agent?
Most people select their spouse, a relative, or a close friend to be their agent. But you can name anyone you want.
Remember that selecting an agent is not about choosing the person closest to you but rather someone who can represent your best interests. The key is that you trust the person completely and feel comfortable discussing your healthcare wishes with them.
The last thing you need is to deal with family peer pressure or worry that your wishes will not be carried out.
To this end, there are six characteristics you should look for when selecting the agent for your medical power of attorney:
Choose Someone Nearby
Keep in mind that your appointed agent may need to get to the hospital or care center quicklyin an emergency to make an immediate decision.
For this reason alone, choosing someone who lives out of state may not be the best choice. Even if they are willing to jump on the phone 24 hours a day, they should be able to see you to make an informed judgment call.
Choose Someone Trustworthy
When choosing an agent, it is important to consider the person’s character. In the end, your agent is going be entrusted with arguably the biggest responsibility a person can be tasked with.
Ask yourself:
- Are they likely to follow through on the wishes?
- Are they swayed by other people’s judgment?
- Will they “pass the buck” if faced with a difficult medical decision?
Choose Someone Who Is Assertive
Being an appointed agent is not always an easy task, especially when emotions are running high. Before selecting an agent, think about theircommunication and leadership style.
As yourself:
- Are they assertive or passive?
- Are theyable to hold their ground when under pressure?
- Might they fall apart if faced with a terrible medical situation?
- Are they in the habit of second-guessing themselves?
You’ll want someone who can communicate calmly but assertively. Choose someone who can remain calm under pressure and will not be swayed when carrying out your wishes, no matter how much grief they get.
Choose Someone With an Understanding of Medical Processes
Remember, your appointed agent will be making healthcare decisions on your behalf. As such, you’ll want to select someone who has some understanding of how medical processes work.
This does not mean you need a doctor or a nurse in the family. They simply need to know how to ask the right questions, especially about medical tests, prognoses, and the benefits and risks of any proposed treatment.
Find someone who is more of a critical thinker, who is curious and can make informed judgments decisively and independently.
Choose Someone Who Is Articulate
Think about how your prospective agent communicates. They will be the main liaison with your medical team and loved ones. You, therefore, need someone who can communicate clearly to all parties, sowing cohesion rather than chaos or confusion.
Ask yourself:
- Are they more calm or more emotional?
- Do they beat around the bush or get to the point?
- Do they answer a question with 20 words or 200 hundred words?
- Do they get tongue-tied or burst out when frustrated?
No matter how much you might trust someone, remember that they are speaking on your behalf.
Choose Someone Who Is Willing to Serve
Be sure that anyone who you would like to be your agent is willing to do so. Pressuring or “guilting” someone into the role serves no one, least of all yourself.
Give the prospective agent time to think. Encourage them to be honest, and be gracious if they decide not to be your agent; in the end, they may be doing you a favor.
How to Get Power of Attorney for a Sick Parent or Loved One
There are times when you need to step and organize a medical power of attorney for a sick parent or loved one, such as when dementia makes it harder for them to make decisions. It’s a situation that many families are forced to make as populations grow older and live longer.
For a power of attorney to be legal, your loved one must be of sound mind and be able to grant you this power of their own free will. To be of sound mind means they fully understand what it means to sign over power of attorney and the kind of decisions that may be made on their behalf.
To help them along, provide your loved one with as much information as needed (if possible, in the presence of an attorney or legal advocate specializing in healthcare).
The questions may be hard to ask but should include:
- When do you foresee needing me to make medical decisions for you?
- What financial and medical decisions would you want me to make?
- What would you not want me to do?
- If you were hospitalized, how would you want me to pay your medical bills?
- Would you want me to try any risky or costly medical procedures?
- Would you ever want to be placed on life support?
- At what point would you want treatment to stop?
- Are there financial concerns I should be participating in?
- Is there a doctor you would want to participate in decision-making?
Ensure that all of your loved one’s wishes are included in the draft document. Allow your loved one to review it in the presence of legal counsel. To help ease any stress, hire a mobile notary public when they are ready to notarize the document.
If your loved one is already mentally incapacitated, it is possible that they may have already granted you the necessary authority in their living will or other advance directive. If so, you may not need a separate medical power of attorney.
Activating a Power of Attorney
How to Get Power of Attorney for Someone Who Is Incapacitated
It is arguably more difficult to be placed in the position of having to organize a power of attorney for someone who is already incapacitated (such as a loved one involved in a serious accident or who has had a severe stroke).
To obtain a power of attorney in this instance, you would need to be granted conservatorship or guardianship over your loved one. This requires an attorney who can petition the court and presenta written statement from a physician certifying incapacity. The lawyer will also need to argue why you are the best agent for the job.
In emergency situations, an immediate hearing may be arranged. If it is not an emergency, it can take time to schedule a court hearing.
During this time, court costs can mount (particularly if there are legal challenges from other family members), so discuss ways to keep costs under control. Some lawyers will work on a fixed fee.
If the conservatorship or guardianship is granted, you will likely need to file paperwork regularly with the court. The better able you are to keep all medical records and bills in order, the fewer legal costs you will be faced with.
Summary
A medical power of attorney is a legal document that grants an authorized agent the power to make medical decisions on your behalf if you are incapacitated. There are durable powers of attorney that can take immediate effect and give the agent broad powers over medical decisions, and springing powers of attorney that are only activated when a physician declares you incapacitated.
You can limit certain powers when organizing a medical power of attorney. Work with a lawyer who can legally document your wishes, and choose an agent who you can trust to carry out your wishes even under pressure.
