Health Care Power of Attorney: No Better Time Than Now

Monday, October 4, 2010

Powers of attorney take two general forms: health care and asset management. In this post I will discuss the power of attorney for health care (health care POA).

What Is a Health Care POA?
A person is entitled to maintain control of his or her end-of-life health care, even after losing mental capacity to do so. This is accomplished by executing a valid health care POA while the person is of sound mind.

The health care POA grants decision-making power to a trusted agent regarding hospitalization, life-saving treatments, resuscitation attempts, and disposition arrangements (i.e. whether the remains will be buried or cremated after death).

Who Is Who?
The person granting power is the grantor or principal, while the person being given the power is the agent.

What Are the Advantages of Executing a Health Care POA?
There are at least four reasons to execute a health care POA.

1. Maintain control over end-of-life issues

Your wishes for how to spend the final days and weeks of life may be different from the wishes of those who love you and believe they know you best. Your health care POA speaks when you no longer are able, because, once signed, notarized, and witnessed, it becomes a binding document that attests to your desires. It must be followed. Some people are concerned that health care providers disregard even validly executed, clearly written POA documents. To avoid this problem, give your primary doctor and the local emergency room a copy of it.

2. Minimize stress and confusion

Emotions are especially charged among loved ones during the final days and weeks of life. Unfortunately, one of the sources of stress for many families is their lack of knowledge of the desires of the dying family member. If those desires are clearly stated and communicated through a valid health care POA, much of the confusion and stress can be avoided. Again, just as you ought to share this document with your doctor, you should give a copy to your agent(s) and other trusted family members for their information. The time for questions about what it contains is now, not after you have lost the ability to express your wishes.

3. Enjoy peace of mind for yourself and loved ones

Having a valid health care POA can be a source of comfort for you, as well as for the person(s) to whom you are giving power to make decisions on your behalf. Knowledge of your desires regarding end-of-life care is a powerful antidote to fear and apprehension.

4. Avoid court-supervised conservatorship/guardianship process

Perhaps the biggest reason to execute a health care POA now is to avoid the court-supervised conservatorship process. In other states, it is also called a guardianship. The court oversees a petition process and ultimately grants a person authority to make decisions on behalf of an incapacitated person. The process is lengthy, complicated and expensive, and it creates a mountain of paperwork. It often ends after the death of the person needing conservatorship, making the process nearly worthless. This nightmare is easily avoided if a person creates a valid health care POA while he or she has mental capacity.

What is mental capacity?
When attorneys and physicians speak of mental capacity, they refer to a person’s ability to think and process information rationally, such that he or she is able to comprehend information and appreciate the effects of his or her decisions. Capacity does not necessarily have to be constant and unwavering; there are instances where a person’s capacity comes and goes. It becomes apparent, therefore, how a person might be abused.

Certain safeguards have been built into valid health care POA documents. First, they must be signed and dated by the person giving power-of-attorney. Second, they must be signed in the presence of two adult witnesses who attest to the mental capacity of the principal. Finally, they must be notarized and stamped with an official notary seal.

Can I have more than one agent?
It is possible–in fact, common–to grant power-of-attorney to more than one person. They act together as co-agents. It is also possible (and recommended) to name a successor or two in the event the first chosen person is unwilling or unable to act.

For more information
Please call (916) 442-5835 to discuss powers of attorney in more detail, and to have one drawn up for you today.

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