Durable Power of Attorney for Health Care

A power of attorney for health care (POA) is the form that a senior completes designating who he wants to make decisions for him regarding his healthcare.  The person named in the document as primary decision-maker is called a health care proxy or attorney-in-fact.

A senior can complete a power of attorney as long as he has the capacity to make decisions, meaning that he knows who and where he is, the general date, and understands what he’s signing.  If the senior lacks the capacity to make informed decisions, he certainly can’t make the decision as to who should be named as his attorney-in-fact for health care.  As long as he has the capacity to make decisions, the senior has the right to direct his care; while the health care proxy he’s named can make decisions, that person can’t override the senior’s wishes.

If a senior can no longer make informed decisions, his power of attorney must contain a statement called a durable provision in order for the form to remain in effect.  A durable provision says that the power of attorney remains in effect after the senior no longer has the capacity to make decisions.  Most powers of attorney contain durable provisions so this shouldn’t be a problem; however, without a durable provision the patient has no legal document in effect directing who can make decisions.

If no power of attorney was ever completed (or there was no durable provision in one completed), it’s possible that healthcare providers will allow a family member to make decisions.  Each state has a law that addresses which family member can be responsible for making decisions; if there’s no family member available or if there’s a disagreement amongst the family, a legal guardian might have to be appointed.

It’s important to update your advanced directives on a regular basis, because the power of attorney you completed ten years ago naming your ex-wife as your healthcare proxy might possibly upset your new wife. It’s also important to take into account that the person you name might not be available – for example, a husband who dies before his wife – which is why you should also name alternate attorneys-in-fact.

The person designated as durable power of attorney for health care can be whomever the senior wants, such as a good friend or significant other.  The wishes of family members can’t take precedence over the decisions of a person named health care proxy, which can be distressing when the health care proxy is a life-partner of the senior and the family doesn’t accept the relationship.  If the senior has a life-partner who he never named as his power of attorney, it’s possible that the family will ignore the partner’s wishes and even ban them from visiting the senior.

A client of mine lived with his girlfriend for over 20 years, but they chose not to get married.  She said that they had discussed advanced directives on several occasions, but they never put anything in writing.  He had a stroke, and the niece that he had named to make all decisions long before he met his girlfriend took her job very seriously. This cut the girlfriend out completely, which was especially unpleasant because the girlfriend and he lived in a home he owned – and the niece had her evicted.  His promises of taking care of his girlfriend forever were left unfulfilled.  All of this would have could have been avoided if only they’d completed some end-of-life planning.

Powers of attorney completed in accordance with state law must be accepted in every state, an issue that comes up when a person on vacation becomes ill.  Occasionally hospital personnel won’t honor powers of attorney completed in another state; if that happens to you, insist upon speaking with the hospital administration and there shouldn’t be any further problems.

A person who is alert & oriented can revoke (withdraw permission for the form to be valid) a durable power of attorney for health care at any time simply by stating in front of witnesses that he wants to revoke the document.  The revocation needs to be done in front of witnesses because the person who was named as the health care proxy can take the matter to court, and without witnesses it may be difficult for the judge to verify what the senior’s wishes were at the time.  It isn’t necessary to have a revocation recorded with a city or county clerk any more than it was necessary to register the original power of attorney.

Each state has laws regarding powers of attorney; for additional information the Area Agency on Aging should be able to provide some direction.