Healthcare Power of Attorney for Older Adults

healthcare power of attorney (POA) is an important part of long-term care planning. It is a type of advance directive in which you choose someone to decide for you when you can no longer do so.

Creating a healthcare POA, also known as a medical POA, can help protect you against unexpected medical uncertainties. It is an essential legal document should you become incapable of making medical decisions, whether through an illness such as Alzheimer's or an injury that renders you incapacitated.

General vs. Durable Power of Attorney

It is important to note the difference between a general power of attorney and a durable power of attorney. A general power of attorney is "non-durable." This means that the person appointed to act on behalf of the principal can no longer do so once the principal becomes incapacitated.

A "durable" power of attorney for healthcare is a legal document that allows someone to make your healthcare decisions when you no longer can. That person becomes your "attorney-in-fact" and can decide medical treatment or end-of-life care decisions. Older adults often choose an adult child, sibling, or other relative as their attorney-in-fact.

If you do not have a durable power of attorney, your family and loved ones may have to undergo an expensive and time-consuming court proceeding to make medical decisions. A power of attorney or advance healthcare directive prevents the court's involvement.

A qualified elder care lawyer or estate planning attorney can help you get started on your healthcare power of attorney forms.

What Powers Does a Power of Attorney for Healthcare Convey?

Your healthcare agent will typically gain a durable POA over your medical decisions only when you cannot act for yourself. This usually happens due to mental incapacity or physical disability.

Someone of "sound mind" will still be able to make their own decisions, even if this document exists. Creating a power of attorney document in sound physical and mental health is wise.

Suppose the day comes when you lack decision-making ability. In that case, you want a trusted healthcare proxy to make important treatment decisions on your behalf. Under most powers of attorney, your loved one or family member acting as a healthcare agent will be able to:

  • Decide whether to continue life support services, even when ending such services would result in your death
  • Make "do not resuscitate" decisions and end-of-life treatment preferences
  • Agree to or refuse treatment plans, medications, medical care, and pain management
  • Access your medical records and information
  • Sign contracts for your healthcare services or healthcare providers
  • Determine which doctors and specialists will treat you
  • Decide about organ and tissue donations, autopsy, and disposition of remains

You do not have to allow your healthcare agent to make every decision above. You can determine your healthcare agent's authority and grant only the powers you wish to give your agent.

Similarly, your healthcare agent cannot go against other directives you may have made, such as a living will. If you do not have a living will, create one using FindLaw's DIY living will form.

When creating your power of attorney, pay particular attention to the powers you're granting your agent. Note when those powers take effect, as well. State laws regulate POAs, so it is also important that your POA meets your state's requirements.

Who Should Be Your Healthcare Agent?

Choose someone who knows you well, and you trust to fulfill your wishes to be your healthcare agent. Before selecting an agent, discuss what you want in a medical emergency.

Be sure that the agent you choose will respect your goals and wishes. Often, people select a spouse, child, or close friend as their healthcare agent.

Be aware that your agent might not be available when needed. Name at least one alternate agent if your primary healthcare agent cannot make decisions on your behalf.

Important Issues To Keep in Mind

It's important to avoid any issues preventing your power of attorney for healthcare from operating properly. Some points to keep in mind include:

  • Naming multiple agents or co-agents
  • Divorcing after naming a spouse as a healthcare agent
  • Naming separate healthcare and financial agents
  • Legal requirements of your state

Using Co-Agents

More than one person can act as your healthcare agent. This is most common when two or more children have your power of attorney for healthcare.

But to decide on your behalf, all or most of your agents must agree. If your agents cannot agree, they may have to go to court, creating costly and time-consuming delays.

Using a Divorced Spouse as an Agent

Many people make a power of attorney directive naming their spouse as their healthcare agent. If they divorce later, some states, such as Texas, will automatically revoke the healthcare power of attorney. Check the laws in your state to ensure you update your power of attorney correctly.

Conflicts Between Healthcare and Financial Agents

If you have created a power of attorney for healthcare, you may have also created a financial power of attorney. A financial power of attorney allows someone to make financial decisions on your behalf.

As with co-agents, your healthcare agent and your financial agent may disagree on your best interests, creating burdensome conflicts. It's important to select agents who you believe will work well together.

State Requirements for Medical Power of Attorney

Every state allows for medical power of attorney directives, but the exact requirements vary from state to state. For example, Ohio and Texas don't allow a universal or generic form to create a power of attorney. Other states, like California and New York, impose strict notary public and witness requirements if you're in a nursing home.

Consulting with an attorney before creating a power of attorney for healthcare can help you avoid having your advance directive challenged because of a technicality.

If You Are Someone's Agent

If you've become the health care agent for your elderly parent or a loved one who cannot make their own medical decisions, you must act with their best interests in mind.

Actions that directly or indirectly benefit you may be suspect. An attorney can help explain the actions available to you and any precautionary steps you can take to prevent challenges to your decisions.

Get Legal Guidance for Powers of Attorney

If you're considering creating a power of attorney for healthcare or are someone's healthcare agent, contact an experienced estate planning lawyer or elder law attorney to discuss your options.

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