The Law in Your Life

Healthcare

Durable Power of Attorney For Healthcare

An Excellent Prevention Tool

In general legal terms when you want a person to act for you, you can create a power of attorney. Depending upon what scope of authority you give to the person you appoint to act for you, the Power of Attorney can be limited or general. Usually a power of Attorney is appointed to act for another person in their business or financial affairs. Recently, however, state laws have begun to recognize the need for "agents" to act for people in making healthcare decisions when these persons may not be able to act for themselves. As an example, if you were in a car accident and were in a coma, but your doctors felt the coma was temporary. This might be a situation in which such a document might seriously assist in the managing of your health decisions.

A Durable Power of Attorney for Healthcare is a legal document, created by you, which allows you to designate a person to make certain decisions for you regarding your medical care, if you cannot make those decisions yourself. Generally, when you prepare a Durable Power of Attorney for Healthcare, you are appointing a "healthcare agent."

When you make such a document, you are making a formal designation of an agent to deal with all medical situations which may arise when you cannot speak for yourself.

More Than End-of-Life Decisions

The typical distinction between a Living Will and a Durable Power of Attorney For Healthcare is that a Living Will usually deals only with medical decisions related to "end of life" situations. Durable Powers of Attorney For Healthcare can be drafted to enable you to appoint an agent for a number of different medical situations which may arise not necessarily related to "end of life" situations. Usually Durable Powers of Attorney For Healthcare give authority for the designated agent to act in a variety of situations where you may be incapacitated or unable to decide for yourself.

Many attorneys recommend that you combine the Durable Power of Attorney For Healthcare into a Living Will. Perhaps a better recommendation might be to simply draft two separate documents, leaving each to its stated purpose. However, if you draft both, be sure of at least two things: (1) that all of your wishes are stated in the same terms if they are the same for each document; and (2) that you consider designating the same person to be your agent for each. Although this second item is not a requirement, it is a good idea from an administrative standpoint, in the event these documents ever had to be utilized. The primary benefit to having the same agent is that there would not be two different interpretations of your wishes.

But, I Am Only 30 Years Old

It is a good idea to have a Durable Power of Attorney For Healthcare, even if you are not advanced in years, since you could have an unexpected accident and be rendered temporarily incapacitated. We urge our clients, no matter what their age, to consider a Durable Power of Attorney For Healthcare, since it can save them, and particularly their family members, a number of headaches.

An example is illustrative. What if your daughter is 23 years old and living at college. Assume that while she is not completely independent, she is responsible for her support. If she is in a coma as a result of a car accident, even if it is temporary, one might think that you, as her parents, could simply tell the doctor what medical treatment to administer or what steps to take for her care. The problem is that this assumption may be totally wrong, even though more than 90% of American families rely on such an assumption in today's society. Because your daughter is an adult and arguably living on her own, many physicians and hospitals will not readily assent to the wishes of the parents, in the absence of any writing evidencing the daughter's intent.

As an added complication, she may have a boyfriend with whom she has been living who might surface to render "assistance" with such decisions. In the presence of such potential conflict, the hospital or medical professions might opt to take no action.

Many people do not understand this legal reasoning. But if you consider another situation, the reasoning may be clearer. Suppose that your daughter, in the same facts, seriously injures a person while driving her car. Under most every state law, with certain possible exceptions, you, as her parents would not be legally responsible for the injuries which she caused in the accident. If one of her passengers was critically injured, she [her estate] might attempt to sue the parents of the daughter, and under most laws [naturally with a few exceptions] parents would not be liable, because the daughter is an adult.

Thus, the same reasoning that insulates parents from liability for any damages caused to any other persons in the car, makes the law consider your daughter to be independent from your control in her personal healthcare decisions in many states.

Thus, if you do not consider a Durable Power of Attorney For Healthcare for your children, you might be creating a number of problems in the event an emergency arose. And, such a document is very easy to draft, as we will see.

Why Prepare a Durable Power of Attorney For Healthcare?

When you draft a Durable Power of Attorney For Healthcare, you are generally looking for an agent who will "stand in your shoes" if a decision regarding your healthcare or medical treatment must be made. You want to appoint someone who will look out for your interests. Physicians and hospitals are generally concerned with their medical treatment and liability issues as they impact their own interests. You want someone to look out for your desires.

Often in emergency or unanticipated situations there is no time to express your interests, and in the event of incapacity, a document on file will help your agent carry out these wishes. Attorneys who work in this area often see firsthand the havoc created by a lack of preparation. No doubt every attorney's advice in this area would be to prepare a Durable Power of Attorney For Healthcare, so that in the event of an incapacity or emergency you will save your family much grief, hardship, and legal expense.

When Does the Durable Power of Attorney For Healthcare Become Effective?

The Durable Power of Attorney For Healthcare is designed to become effective upon the happening of a condition or considerations identified in the document. Generally, this condition is related to your incapacity of some type. You should be sure to properly define the condition(s) under which you wish the Durable Power of Attorney For Healthcare to become effective.

It is often typical to draft a Durable Power of Attorney For Healthcare to become effective immediately, so that it is in effect in the event of any emergency. Unlike a Living Will, which generally contemplates a terminal condition or permanent impairment, one of the main purposes of a Durable Power of Attorney for Healthcare is to make sure that you are covered in an emergency.

A problem one immediately notices is this: if the Durable Power of Attorney for Healthcare is effective immediately, how do I retain any control over my decisions? While there are many ways to deal with this problem, and you should discuss these with an attorney, here are at least two considerations: (1) if you trust the agent, you can simply give him/her the effective Durable Power of Attorney For Healthcare and trust him/her to implement it only if it is needed; or (2) if you are concerned about a possible misuse, you can give the document to a trusted "custodian," a person who agrees to hold it for you until your disability is verified, and only then turn it over to your designated agent. Be sure, however, that you have designated an agent who is trustworthy, or it is not worth preparing the document.

An Examination of a Sample Durable Power of Attorney For Healthcare

For this discussion, please open the sample Durable Power of Attorney for Healthcare. Remember that this form is only approved in about 20 states, and while several other states may approve of this concept, you must check the requirements of your state, usually with your Plan Attorney, or your attorney, before drafting a Durable Power of Attorney For Healthcare.

Page One Warnings: Most noticeable about this document are the warnings on the first page. This page contains at least 10 warnings in bold letters. These are written to the person who is drafting the document, but are required to be included in the document in most states. The real purpose of including these warnings in your document is to show people, including physicians, hospitals and judges, if the need arises, that you have read and considered these warnings. Even though you may have read these warnings at the time you prepared the document, if you are incapacitated, you will not be able to tell anyone you read them. As a result, by including them in your document, they will know that you have considered these warnings and have been appropriately forewarned about the seriousness of the document which you will be signing.

Paragraph 1: This warning is one of the most important. It requires that you fully comprehend the fact that you are designating a person to make decisions for you which may involve serious consequences about your health. This statement specifies that you can limit or restrict this power in any manner. It also specifies that you can limit medical treatment and care and leave these decisions to the care of the designated agent.

One thing many persons may overlook is that by including this paragraph in your document, others, such as a physician, hospital, or a court might later infer that you are stating all of the limitations, restrictions or other specifications regarding your care. Thus, you should take care to ensure that you have given careful consideration to the treatment you wish and specify it accordingly. Just think of your document as stating exactly what you want without you having to state a single word, as you will not be able to utter a single word if the need arises. If your document does this, you have probably been specific enough.

Paragraphs 2 and 3: This warning states that you realize your agent can make these decisions for you. Also, you should realize that you are also giving your agent the power to act "in your best interests" if these interests are not specified clearly, or at all, in your document. Paragraph 3 makes it clear that you realize that your agent might order your physician to halt certain treatment, which the agent believes to be in your best interest. However, the purpose of this warning is to note that you consent to the fact that there is no qualifying language or guarantee that the agent will act exactly as you wish them to act.

Paragraph 4: This warning reminds that this document, unless specified differently therein, may be immediately effective [as soon as signed] and may last for a long period of time. This time period may be limited by state law, even if you do not so specify, but you should know that if you do not specify any time limits, this document could be effective for an indefinite period of time, in some states. Be sure to remember to make the necessary changes or execute a new document, should your agent fall out of your favor, be transferred, become incapacitated or otherwise become not suitable in your eyes to serve as your agent.

Paragraph 5: This warning informs you that as long as you are able to make decisions for yourself, you can. It also permits you to override any decision of your agent, to the extent that you might be able to do so. While medical conditions vary widely, it is not the purpose of this document to attempt to think of every conceivable medical scenario. Remember the basics, your agent will not be making decisions for you unless you are unable to do so for yourself.

Paragraph 6: This paragraph reminds that you can revoke the power of your agent at any time, simply by telling them or by writing to them. However, be sure to consider the obvious. That is, assume you were to execute this formal Durable Power of Attorney For Healthcare and to deliver it to your agent. Then two years later you decide to revoke the power given to the agent. By telling him/her without more written documentation, there is no proof that you ever told the agent of the revocation. You ought to consider executing a formal Revocation of Durable Power of Attorney For Healthcare. Your revocation is not required to take this form, but it is certainly a good idea. Also, you should deliver a copy to your agent and keep a copy of the original with the original of the Durable Power of Attorney For Healthcare.

Paragraph 7: This paragraph provides a manner in which you can notify the attending physicians or healthcare institutions of any revocation. However, remember that when this document will be used is only in circumstances where you are incapacitated, so your opportunities to notify these parties will be limited, at best.

Paragraph 8: Reminds you that the agent you designated is entitled to review and access your medical records. This means including those records from 20 or 30 years ago. Be sure you realize this possibility and take it into consideration before appointing an agent. Of course, you can limit this right to review your medical records in your document if you so desire. The problem is that it is possible that the agent may need to know information from 20-30 years ago that might be relevant to assessing your medical situation. In addition, such information might be critical to the agent who is engaged in proposing or consenting to certain medical treatment at present.

Paragraph 9: Examines your acknowledgement that any other Durable Power of Attorney For Healthcare is now revoked, in its entirety, when you execute this current document. This means that even a small change in the newest document will revoke the past documents. It reminds you to be sure every item you want to be specified is covered in the new document. Revocation is often interpreted by the courts, and may be interpreted to mean that you intended not to include the provision in the new document, even if it was included in the first document. Your interpretation is likely the opposite: that you just made changes to the provisions you wanted changed and all else should remain the same. Be sure you understand this will likely not be the court's interpretation in the future. The general rule is to include everything you want in any new document [and remember to make sure it does not conflict with any other related document(s).]

Paragraph 10: Suggests that you should consult with an attorney to complete this document. This is excellent advice. While we have provided this sample document as a helpful guide to understanding its significance, this document is of great legal significance and should be drafted by an attorney familiar with your particular situation. No attorney can generally help you complete your own form, as this constitutes the practice of law. Completing forms is an integral part of the practice of law, and attorneys may be barred by the ethical rules of their state bar associations from helping non-lawyers practice law. Until this is changed by each state legislature, you may not be permitted to have an attorney assist you in completing your documents.

After these ten paragraphs of bold-faced warnings the following paragraphs are discussed in the sample document and correspond to the paragraphs there.

Paragraph 1: This specifies that you are creating this Durable Power of Attorney For Healthcare. You should print your full name. Where it suggests that you should designate your agent, you should put the agent's full name address and telephone number, so that any person who needs to can contact your agent.

When you name your agent, you should remember that this is the person who will act for you and will [hopefully] carry out your wishes. This agent cannot be your treating physician or provider of healthcare, an employee of your treating physician or provider of healthcare, an operator of a long-term care, nursing home, or other related care facility, or an employee of such facility. By creating this document before you need it, you will have plenty of time to make the proper selection of an agent who will have your best interest in mind.

Paragraph 2: With this language you are declaring your intention to create the document known as a Durable Power of Attorney For Healthcare.

Paragraph 3: This is a general statement of your intentions. It requires that only in the event you are incapacitated, and incapable of giving instructions or consent to your healthcare decisions, then the provisions of this document apply. You should understand that you are acknowledging that you are giving full power to make decisions to your agent.

These powers include decisions regarding all of the factors listed. You can specify others or you can eliminate one or more of the factors listed if you have any problems or concerns about any provision. Also, in Paragraphs 4 and 6, there is a special place to include your own provisions specifying or limiting treatment about which you may have a particular concern.

Paragraph 4: Here, you can include special limitations on the powers conferred in paragraph 3 above. Be sure to specify these in clear terms so that any physicians or healthcare institution employees or professionals can understand these limitations. Several examples might be that you do not wish to give your agent the power to consent to an abortion, to sterilization, to reverse previous operations such as vasectomies, to commit you to [certain] long-term health care institutions, or to mental treatment or commitment. This list is not exhaustive and you should specify those limitations which you may have which will limit the power of your designated agent. Remember, you might be incapable of deciding yourself, and no one will be able to read your mind. Be sure to specify your wishes.

Paragraph 5: The duration of this Durable Power of Attorney For Healthcare is an important consideration for you. Whether your state law allows you to have an indefinite duration is also a question which should be considered, since your state's law limitations will generally serve to limit the duration of your document. You should carefully consider if you should give your agent an indefinite period of duration. Many things can happen in a ten year or more period, for example. On the other hand, you do not want to draft a new document every year or two. You can also specify a specific date on which this durable Power of Attorney For Healthcare will expire.

Paragraph 6: This provision enables you to state your desires concerning different aspects of healthcare and medical treatment decisions. While you do not have to specify exactly all forms of treatment or care you permit, you should consider what can happen if you do not. If it is unclear what your desires are to the healthcare institution or the physician, it may be necessary to institute a judicial proceeding, even though you have gone to the trouble of preparing this document (and generally avoiding court is the whole reason for drafting this document.)

Thus, it is in your best interest, and also that of your family in terms of time and legal expense, to specify clearly what your agent can or should do in the event of your incapacity. You can add additional choices or alternatives to those suggested in the list in this sample.

Finally you should realize that if you do not specify a particular treatment or condition, you will be likely to receive this treatment, since it should be expected that healthcare institutions, and physicians tend to act in their best interests, i.e., avoiding lawsuits, and not always yours.

Paragraph 7: This provision allows you to designate an alternate agent. You do not have to do so, but it is a great idea, if you can decide who this alternate might be, to designate that person at the time this document is being drafted. This avoids any need to amend the document at a later date, in the event something would happen and your original agent could not serve. Remember that this person would have the exact same powers as the first, without limitations. Also remember that this person would not act unless the original agent cannot or will not. They are not required to confer and if the alternate agent has a different opinion, it is of no consequence, if the original agent makes a different decision. Any such differences might also result in legal action by one of the other, and you should designate these persons with such potential problems in mind.

Paragraph 8: This statement recognizes that by drafting this Durable Power of Attorney for Healthcare, you are revoking, completely, any previously drafted Durable Powers of Attorney for Healthcare. You should also remember that when you revoke a document, you are generally considered to have revoked the entire contents of the document. You should be sure to include every provision from any old document which you desire to remain in effect in the new document, or you may lose it from consideration in the new document. This is a critical point to understand, since many people decide that since they specified it in the old document, it does not need to be repeated in the new document. The safe course of action is to include it in the new document without question!

Notary Public Acknowledgement: This is a typical notary public attestation clause, whereby an authorized notary in effect signs this document and states that you appeared, made yourself known to him/her and signed this document in his/her presence. The purpose of this provision is if there are ever any questions of undue influence or whether you were of sound mind, the notary can be called into court to testify about the facts surrounding your appearance before him/her.

Depending upon state law, you may be required to have a notary sign and attest to your signature along with two witnesses who also sign, or you may only be required to have a notary sign and make the attestation, or only two witnesses may only be required to sign without a notary.

Witness Statements and Signatures: The state laws vary regarding the proper form of witness statements in this document. To be sure you have properly prepared your document, you should be sure that the Witness Statements are needed.

If they are, this statement provides some suggested language which may help a later party or court understand that the witnesses made certain representations regarding your signing of this document. Be sure that you do not sign the document first, and then ask them to sign that they witnessed your signature, since they will be unable to come to court and testify that they saw you actually sign the document. This is critical in a case where it may be alleged that you were unduly influenced in signing this document.

Also, you should note the restrictions on witnesses. It is best if they are not interested in your estate, or related to you or any healthcare provider, physician or care facility.

This particular form provides that the witnesses sign under penalty of perjury. Not all states require this attestation and while it is a good idea, be sure that there is no statement which is not true being made or adopted by any witness that would prevent them from signing under penalty of perjury.

Revocation of Durable Powers of Attorney For Healthcare

We have provided a sample of a Revocation of a Durable Power of Attorney For Healthcare. Once again, just as it was critical under the Revocation of Living Wills section, the revocation process is critically important to making certain that your revocation is effectuated.

A Durable Power of Attorney For Healthcare can be revoked in a number of ways. Tearing it up, marking it "revoked" or "canceled" will also serve to revoke this document, so long as the Declarant intended that it be revoked. Several other ways to revoke a Durable Power of Attorney For Healthcare may not be so clear, and like Living Wills revocation, might surprise you. First, by making a new Durable Power of Attorney For Healthcare, you might revoke all other Durable Powers of Attorney For Healthcare.

Interestingly, courts are full of cases where people sought to simply add a new provision to their Durable Power or to simply change one paragraph, or even a word, in the other Durable Power. The problem created is one of interpretation, and if there is any conflict between the first and the second Durable Power, the court may declare the first revoked.

Also, making another legal document, such as a Living Will, after you have made the Durable Power of Attorney For Healthcare which is inconsistent with the provisions of the Durable Power, might operate to revoke the Durable Power.

In some instances, a court might indicate that a person's circumstances changed so much from the time the first Durable Power was made, that this "changed circumstances" standard should be used to determine that the Durable Power may be considered revoked. Of course, significant proof at the time of a legal battle would have to be presented by the person seeking to have the Durable Power revoked. But it happens all the time.

Thus, it is critically important that if you are preparing a Living Will and a Durable Power of Healthcare, you should prepare all of the documents regarding this subject at the same time, and that any updates or changes be made to the whole group of documents. It is important to realize that the changes in one may impact the effectiveness of the other.

Finally, there are some states that automatically revoke a Durable Power of Attorney For Healthcare after a number of years. Regardless of whether you have one, if it is more that the number of years set by the state, there may be a problem with it being honored at the time you seek to implement the provisions of this document. Your state's laws should be consulted to make certain that you know of any such provisions.

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