Medical Power of Attorney:
Questions & Answers
on Being a Health Proxy,
and the Legal Forms

Exactly what is a Medical Power of Attorney? I've heard different names...

That’s exactly the problem. This function is governed by state law and goes by different names in different places. A Medical Power of Attorney form is needed to make this role legal. Power of Attorney for Health Care, Health Proxy, Health Care Agent, Health Care Surrogate or Attorney-in-Fact all refer to the same function. (I will use the terms here somewhat interchangeably so you start to recognize the language.)

It means a person that you choose and give the legal authority to speak for you and make medical decisions for you if you are ever unable to speak and make medical decisions for yourself. The person you choose is NOT actually an attorney or lawyer; it is more likely a relative or friend that now has certain legal authority to speak on your behalf if you are unable to.

When would a Power of Attorney for Health Care go into effect?

This legal status goes into effect only after a physician has determined that you are unable to make medical decisions for yourself, and only lasts for the duration of your incapacity. For instance, in the case of a temporary illness or surgery, your Health Care Agent no longer has that authority as soon as you are capable of making your own choices.

What powers or medical decision-making authority would they have?

During the time you are unable to make your decisions about your health care and treatment, the Medical Power of Attorney gives the person you name the legal power to speak FOR YOU. They would have full rights to be informed by your doctors of your condition and choose your course of treatment; full access to your medical records; authority to make choices for you about tests, surgery, or medication. They would have the ability to choose doctors, or hospitals or other agencies to provide medical care (e.g. specialized clinics or rehab facilities).

The scope of authority varies slightly from state to state. You will need to read your state's medical power of attorney form closely to understand the specific role in your state. It does not give your health care agent any authority to make your financial or any other business decisions.

Who needs to appoint a Durable Medical Power of Attorney?

If you are legally married, your spouse is already designated by law to speak on your behalf if you become incapacitated. (UNLESS, you choose someone else through using a medical power of attorney form.) If you are a minor, your parents are to speak on your behalf by law. If you are a legal guardian for someone, you are legally charged with their decisions for health care. In all other cases, you should choose someone to designate as your Health Care Power of Attorney.

Therefore, your parents will need to legally appoint you as their Health Care Power of Attorney if they intend for you to be able to consult with their doctors and make medical decisions for them if they are unable to speak for themselves.

The legal authority of Medical Power of Attorney changes as your status changes. If you are married and, then, get a divorce, your ex-spouse no longer has legal status to make emergency health care decisions on your behalf.

Pay attention to this fact of the law. It also works in reverse. If your parent was single or widowed and then remarried, their new spouse would become the Medical Power of Attorney for them unless your parent stated specifically in the legal form required, that someone else hold that responsibility.

Who should Dad or Mom choose for their Medical Power of Attorney?

The choice of a person for your Medical Power of Attorney is serious and important. You will want to urge your parent to give this some thought. There are several considerations. First, they should choose someone that they think would be able to be reached if they have an emergency. Second, that the person they choose would be willing to be very involved in their life and health care crisis. Finally, that the person they choose would be willing to accept the great responsibility of making very serious health care decisions on their behalf (in consultation with their doctors.)

The person they choose is required to be the age of legal majority in your state, in other words, a legal adult. They could be a relative, but that is not necessary. In the case of multiple children, the legal preference is that only ONE person be named as the Medical Power of Attorney. Your parent may wish to choose a second and third person to stand in their place in case their chosen Health Care Proxy is unable to be reached or unable to fulfill their duties.

Some people shy away from completing this task because they do not want to offend or cause conflict among the siblings. The truth is, it will cause many more problems if someone does not have the legal authority to stand in their place. If you anticipate this could be an issue, work with your siblings to assure your parents that you all will collaborate with each other even though only one person must legally be named.

Anyone already involved in your parent's medical care, like their physician, nurse, or staff from a nursing home where they reside is NOT eligible to be appointed as their Health Care Proxy.

How will their Healthcare Power of Attorney know what they would want to do?

This is the heart of the difficulty in choosing and equipping the Medical Power of Attorney to do their job. Your parent must choose someone that they know well and trust with their life. They must, also, be willing to have in depth conversations with the designated Medical Power of Attorney about their life, their values, their preferences, thoughts about end-of-life care, and their spiritual or religious considerations. They can begin to formalize this process with the completion of documents known as Advance Directives, Living Wills, or Health Care Declarations.

But the completion of Advance Directives is only a start. They are limited, in scope and cannot begin to anticipate and address the myriad situations that might need to be addressed by their Health Care Surrogate. Therefore, in-depth conversations about their desires and intentions are ESSENTIAL. (The scope and limits of Advance Directives and related documents, as well as suggestions for how to have these conversations are described in another article.)

Even if the length and complexity of the questions in the Advance Directives seems daunting -- DON'T QUIT NOW. The appointment of a Medical Power of Attorney for your parents is critical. Break the task into chunks. Have the conversation about the necessity of the document and have them decide who to choose. Get that much put into the required legal form and signed appropriately.

Then you can take the rest of the issues in the Advance Directives bit by bit. Feel free to consult your doctor or another health care professional, such as a Parish Nurse in your congregation, if you need help understanding the options or the implications of your choices.

How do I make my Medical Power of Attorney legal?

This process is governed by the laws of each state. Therefore, it is important that you complete the medical power of attorney form that sets forth the information that is required in your state. The information varies slightly from state to state, and the legal status of the Power of Attorney for Health Care signed in one state, may not be fully recognized in another. This is usually not an issue with regard to temporary travel.

However, if your parent resides in another state for part of the year (for example, they live in Ohio and spend winters in Arizona), they should complete a Power of Attorney for Health Care in both states. A simple way to do this is to complete both state's forms at the same time so that the information remains consistent. Then make sure that the both forms are given to the health care power of attorney at the same time. CAUTION: If your parent changes her mind and wants to revise her forms, the forms for BOTH states should be revised and dated at the same time so they remain consistent.

The forms must be signed by your parent, often the person they designate, and, in most states, witnesses who are neither related to them, nor professionally involved in their health care. There are other conditions for witnesses in several states. If both parents are living, each will have to fill out and sign a document individually.

Where do I get the forms?

You can obtain the forms for your state’s version of the Health Care Power of Attorney from your doctor, from a local hospital, a nursing home, online from your state government website or from an online legal provider. The forms that are available will vary in their use of “legalese” and the legal terms might prove confusing. Feel free to consult with a lawyer or your doctor to interpret the intent of these documents, although that is not required by law.

Many states have combined the Health Care Power of Attorney directly to the completion of a Living Will. They will often appear in the same document called Advanced Directives. While that may make the document seem overwhelming, it is possible to obtain versions that are written in simple English with instructions that are easy to interpret. One of the best is Caring Connections for a free medical power of attorney form.

Go to that page, scroll down and click on your state. Do not be put off by the fact that the website is managed by the National Hospice and Palliative Care Organization. They received a grant from the Robert Wood Johnson Foundation and have translated the legal requirements for Health Care Power of Attorney and Advance Directives for EVERY STATE into a clear and easy to understand format. This is even more useful if you need to complete forms in more than one location, or work with aging parents who live in a state that is different than your own.

Ask Dale Susan: Who has power of attorney if my parent remarries? (audio)

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