Durable Power of Attorney for Healthcare: A General Guide
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A Durable Power of Attorney for Healthcare (DPAHC) allows a person to appoint someone to make healthcare decisions if they're unable due to illness or injury. In addition, a durable power of attorney for healthcare is essential to any comprehensive estate plan. It ensures that an individual's healthcare decisions are made according to their wishes, even if they cannot express them.
How Durable Power of Attorney for Healthcare Works
A Durable Power of Attorney for healthcare grants someone the authority to act as a representative on behalf of the principal in various matters, including medical, financial, and legal affairs if the principal cannot do so. Commonly, Durable Power of Attorney for healthcare is given to partners, spouses, adult children, siblings, parents, grandparents, and attorneys.
The individual chosen to act as a Durable Power of Attorney for healthcare should be someone the principal trusts explicitly, as they will make decisions on their behalf. It is also recommended to choose someone with whom the principal has a good level of communication to ensure that they understand the principal's preferences accurately.
Additionally, a Durable Medical Power of Attorney, also referred to as a "durable power of attorney for medical care," is a type of healthcare directive specifying the medical care the principal wishes to receive if they cannot express their preferences. The principal designates a trusted individual to manage their medical care and make healthcare decisions on their behalf. Depending on the jurisdiction, the person appointed may be referred to as an "attorney-in-fact," "agent," "medical care proxy," "health care surrogate," or a similar term.
The healthcare representative must follow the principal's documented medical choices to the extent they know them.
To articulate their preferences, the principal may create a healthcare directive or living will, which outlines their medical instructions to their healthcare providers or representative. In some states, the durable power of attorney for medical care and the health care directive are combined into one document called an "advance directive" or "advance health care directive."
It is important to note that a durable power of attorney ends when certain conditions are met, and the principal may revoke it at any time at their discretion. However, a durable power of attorney for medical care automatically terminates upon the principal's death.
Essential Elements in a Durable Power of Attorney for Healthcare
When creating a Durable Power of Attorney for Healthcare (DPAHC), it is essential to include specific elements to ensure it is legally binding and effective. These elements are as follows:
- Appointment of a Healthcare Agent: The DPAHC must identify the person the individual appoints as their healthcare agent. This individual must be someone the individual trusts to make healthcare decisions.
- Authority Scope: The Durable Power of Attorney for Healthcare should specify the extent of the healthcare agent's authority. It may include the power to make medical treatments, surgical procedures, and end-of-life care decisions.
- Instructions: The individual may include specific instructions about their healthcare preferences in the Durable Power of Attorney for Healthcare. This can include their stance on receiving life-sustaining treatments, how they want to be cared for, and any religious or cultural beliefs that may affect their care.
- Authority Duration: The Durable Power of Attorney for Healthcare must specify when the healthcare agent's authority begins and ends. Typically, this is when the individual becomes incapacitated, but it may include other circumstances.
- Signatures and Witnesses: The Durable Power of Attorney for Healthcare requires the individual's signature and at least two witnesses unrelated to the designated healthcare agent.
By including these elements in the Durable Power of Attorney for Healthcare, individuals can ensure that their healthcare preferences and decisions are legally recognized and carried out in the event of incapacitation.
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How to Create a Durable Power of Attorney for Healthcare
To create a Durable Power of Attorney for Healthcare (DPAHC), the following steps should be taken:
- Select a Healthcare Agent. The person creating the Durable Power of Attorney for Healthcare should choose someone they trust to make healthcare decisions on their behalf, such as a close friend, adult child, or spouse.
- Discuss Healthcare Preferences. The individual should converse with their chosen agent to ensure they understand their healthcare preferences and are willing to follow them.
- Draft the Durable Power of Attorney for Healthcare. A pre-printed Durable Power of Attorney for Healthcare form is available from various sources like legal websites, hospitals, or an attorney. It should contain all the necessary elements discussed above.
- Sign and Notarize the Durable Power of Attorney for Healthcare. The individual must sign the Durable Power of Attorney for Healthcare in the presence of two witnesses unrelated to the healthcare agent. Additionally, the document should be notarized.
- Share Copies. The person should give copies of the Durable Power of Attorney for Healthcare to their healthcare agent, primary care physician, and other relevant healthcare providers.
Durable Power of Attorney vs. General Power of Attorney
One key distinction between a durable power of attorney and a general power of attorney lies in their respective scopes of authority. Specifically, a general power of attorney typically grants broad decision-making power to the designated agent, enabling them to manage various financial and legal matters on behalf of the principal. By contrast, durable power of attorney is typically more narrowly focused on healthcare-related decisions concerning treatment options, medical procedures, and end-of-life care.
Another key difference between these two types of powers of attorney is their duration. While a general power of attorney may remain in effect until the principal revokes it, a medical power of attorney is often designed to terminate automatically upon the principal's incapacitation or death. Depending on the situation, one or both types of powers of attorney may be necessary or advisable.
For example, a person facing a serious medical condition may want to appoint both a medical power of attorney and a general power of attorney to ensure that their financial, legal, and healthcare-related needs are all properly addressed. Eventually, choosing which type of power of attorney to use will depend on the individual's specific circumstances and needs.
Key Terms for Durable Power of Attorney for Healthcare
- Principal: The person who creates the durable power of attorney and designates an agent to act on their behalf.
- Incapacity: A state in which a person cannot make decisions for themselves, typically due to a medical condition or injury.
- Agent/Attorney-in-Fact: The person designated to act on behalf of the principal in a durable power of attorney.
- Springing Power of Attorney: A durable power of attorney that only becomes effective when the principal becomes incapacitated.
- General Power of Attorney: A type of durable power of attorney that grants broad powers to the agent to act on behalf of the principal.
- Limited Power of Attorney: A type of durable power of attorney that grants specific powers to the agent to act on behalf of the principal.
Final Thoughts on Durable Power of Attorney for Healthcare
A durable power of attorney is an important legal document that grants a trusted person the authority to make financial and healthcare decisions on behalf of another individual in the event of incapacity. It is a proactive step that provides peace of mind to the grantor and their loved ones by ensuring that their affairs will be handled according to their wishes.
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I help small business owners build and protect their dreams. I always thought that I would just be a litigator. Then I joined an intellectual property clinic in law school. We were helping nonprofits and small businesses reach their goals. I fell in love with the work and decided to open my own firm so I could keep helping them. When I decided to start Victrix Legal, I decided that it would be a modern law firm designed to serve professionals. It would be different from every other law firm. In my experience, my law firms are designed to promote inefficiency and reactionary lawyering. Because in most firms, you make more money when you spend more time on a project. And you lose money if your client doesn't get sued. In my opinion, that's a built-in conflict of interest. My firm is different. I use flat fees for most basic projects to keep costs predictable for you and incentivize efficiency. I offer long-term advisory plans and legal audits to prevent issues from happening. I want my clients to see me as their business partner, not just the guy they call when they are in trouble. If any of that interests you, please reach out to me. I offer free consultations. Let's set aside some time and talk about what your legal needs are.
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