Healthcare Power of Attorney for Older Adults

Creating a healthcare power of attorney can help protect you against unexpected uncertainties. It is an essential legal document should you be rendered incapable of making medical decisions, whether through illness or injury.

A durable power of attorney for healthcare is a legal document giving another person the right to make healthcare decisions in your place. They become your "attorney-in-fact" and can decide medical treatment or end-of-life care decisions.

Your family and loved ones may have to go through an expensive and time-consuming court proceeding to make your medical decisions. A power of attorney or advance healthcare directive prevents the court's involvement.

What Powers Does a Power of Attorney for Healthcare Convey?

Typically, your healthcare agent will gain power of attorney over your medical decision only when you have been declared unable to 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. It is wise to create this document in sound physical and mental health.

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

  • Decide whether or not to continue life support services, even when ending such services would result in your death
  • "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 yet, you can DIY one for a small fee.

When creating your power of attorney, pay particular attention to the powers you're granting your agent and when those powers are triggered.

Who Should be Your Healthcare Agent?

Your healthcare agent should be someone who knows you well and who you trust to carry out your wishes. Before selecting an agent, make sure to discuss what you would want to be done in the event of a medical emergency.

Be sure that they will respect your goals and wishes. Often, individuals select a spouse, child, or close friend as their healthcare agent.

Be aware that your agent might not be available when needed. Designate at least one backup alternate agent in case 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 issues 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 are given your power of attorney for healthcare.

However, to make a decision on your behalf, all or most of your agents must agree. They may have to go to court, creating costly and time-consuming delays if they don't.

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. However, others do not. 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.

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 you to use a universal or generic form to create a power of attorney.

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 directive challenged because of a technicality.

If You've Been Called to Act as Someone's Agent

If you've become the health care agent for someone who is unable to make their own medical decisions, it's important that you act with their best interests in mind.

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

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