Something that the COVID-19 pandemic has highlighted is that no matter how healthy you are and how cautious you approach a situation, you never know when a health-related emergency with pop up. When that time comes, can you be sure that your best wishes are being followed? By creating a medical power of attorney, is possible to assign a legal agent to carry out your medical wishes, even if you aren’t able to express them yourself!
What Is a Power of Attorney?
A power of attorney (POA) is a legal document that gives one person (the agent or attorney-in-fact) the power to act for another person (the principal).1 From there, the agent is then given legal authority to make decisions on the behalf of the principal. A standard POA ends if the principal is rendered physically or mentally incapable of making decisions, but it is possible to establish what is called a durable power of attorney (or DPOA), which stays in effect even under such circumstances.2 There are several different types of POA documents, each of which provides authority under specific areas of interest. The most common POAs focus on legal or financial matters, such as when the principal is unable to sign important legal documents or complete financial transactions.3 However, another popular form of POA is a medical POA, which (as the name suggests) is centered around health and medical care.
What is a Medical Power of Attorney?
A medical power of attorney (sometimes called a healthcare proxy) is a legal document that appoints someone to make healthcare decisions for you if you are rendered incapable of making them for yourself. Your agent will make health care decisions on your behalf based on the instructions that you have provided in the document. It can include provisions for a wide range of medical actions, including personal care management, hiring a personal care assistant, deciding on medical treatment, and making decisions on medical treatments overall.4 Since it often covers scenarios where you are physically or mentally incapable of making decisions for yourself, a medical POA is usually also considered a DPOA.
A medical POA focuses only on health-related decisions and will be written according to the exact specifications of the principal. For this reason, a medical POA can vary greatly in terms of length and specificity, depending on what the principal wants to cover. Though generally any competent adult can be your agent for a medical POA, there are certain exceptions. In certain states, your physician, health care provider, residential health care provider (a nursing home, etc.) cannot serve as an agent, nor can their employees unless they are a relative of yours.5
What is a Living Will?
Along with a medical POA, you can also fill out another legal document called a living will, which lays out treatment directives that both healthcare providers and caregivers are expected to follow, including what types of medical procedures or post-care routines that principal does or does not consent to.6 It typically focuses more on end-of-medical medical treatment, along with some medical matters that occur after death, such as organ and tissue donation. Unlike a medical POA, a living will only go into effect if the principal is rendered unable to speak for themselves.
While you can choose to have just a living will or just a medical POA, it is suggested that generally a good idea to have both. Doing so will ensure that you have someone assigned to make well-considered decisions for you while also guaranteeing that they follow your exact instructions on certain matters. Along with a living will and a medical POA, you should also consider some other stand-alone medical planning documents, such as a DNR (Not Resuscitate Order) Order and a DNI (Do Not Intubate) Order.7
The Security of a Medical Power of Attorney
It doesn’t matter how prepared you are for the future if you don’t share those plans with others and give people the ability to act on them. By choosing someone that you trust to serve as your agent for a medical power of attorney, you ensure that all of your medical wishes are followed, no matter the situation. It eliminates much of the uncertainty involved in what can be a very scary situation, helping to put one’s mind at ease in the process.
1. Kagan, J. (2021, May 19). Power of Attorney: Allowing One Person to Act on Behalf of Another. Investopedia. https://www.investopedia.com/terms/p/powerofattorney.asp.
2. 5. Irving, S. (2020, August 11). The Durable Power of Attorney: Health Care and Finances. NOLO. https://www.nolo.com/legal-encyclopedia/durable-power-of-attorney-health-finances-29579.html.
3. Kagan, J.
4. Rubin, H. (2021, April 30). Financial vs. medical power of Attorney: What’s the difference? Investopedia. https://www.investopedia.com/articles/managing-wealth/042216/medical-vs-financial-power-attorney-reasons-separate-them.asp.
5. Hannibal, B. S. (2019, October 9). State restrictions on health care agents. NOLO. https://www.nolo.com/legal-encyclopedia/state-restrictions-health-care-agents.html.
6. U.S. Department of Health and Human Services. (n.d.). Advance Care Planning: Health Care Directives. National Institute on Aging. https://www.nia.nih.gov/health/advance-care-planning-health-care-directives.
7. U.S. Department of Health and Human Services. (n.d.). Advance Care Planning: Health Care Directives. National Institute on Aging. https://www.nia.nih.gov/health/advance-care-planning-health-care-directives.
About the author
Founder/Attorney, CCSK Law
I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so affordably. I love the opportunity to break through the legal jargon to clarify issues. We find success when we work through a person’s situation and put the law to work for them.