What would you do if you suddenly lost the ability to communicate your health care wishes to others?
This is a question that should be answered sooner rather than later and cannot be covered by a will.
Without the ability for loved ones to make decisions on your behalf, they can be left confused about what to do and this can lead to disputes.
Not everybody wants the same things when they get old and fall sick. Unless you have legally nominated a trusted individual via a medical power of attorney, it is impossible to know that your health care preferences will be observed if you should lose the capacity to communicate.
At The Estate Planning Law Firm, our attorneys help people set up a legally enforceable medical power of attorneys easily and affordably.
What is a medical power of attorney?
A medical power of attorney is a type of “advance medical directive”. You may also hear it called a “durable power of attorney for healthcare” or a “Patient Advocate Designation” in some states.
This essential estate planning document ensures that you have someone (a “patient advocate”) to act legally on your behalf if you are left unable to communicate your wishes.
For instance, if you suffer an accident or a medical problem such as a stroke or condition that leaves you in a coma, you may be left without a “voice”.
Your advocate will then have the legal authority to carry out wishes that you have previously discussed or make decisions in your best interests.
Who should you choose as your medical POA?
Your “advocate” is the person nominated as your medical power of attorney. Only you can make this important decision and you should choose carefully.
The role comes with great responsibility as you may end up trusting this individual with your life. Nominate someone who is capable of making important decisions, who you can make aware of your wishes, and who can act in your best interests regardless of their own opinions.
Your advocate should be able to act calmly and with a level head even in an emergency.
Before making a decision, talk to your preferred individual to make sure that the responsibility is one they can accept.
Many people also nominate a back-up or “successor” agent in case the primary advocate is unable or unwilling to carry out his or her duties.
There are no restrictions on who can act as your patient advocate, providing he or she is at least 18 years old and legally competent to make decisions on your behalf.
What can a medical POA do and not do?
A medical power of attorney document can provide the legal authority for your advocate to make healthcare-related decisions about:
Medical treatment (pain medication, surgery, etc.)
Life support (and its withdrawal)
Mental health decisions
The extent of your advocate’s powers can be as broad or limited as you like. Any limitations should be specified.
Unlike a” living will”, a medical POA does not usually detail in-depth personal wishes. These should be communicated separately to your advocate, as should specific healthcare instructions not covered in your POA.
What will happen if I don’t have a medical POA?
Without a medical power of attorney, your loved ones may need to apply for guardianship through the probate court before important medical decisions can be made legally on your behalf.
Patients have been left “in limbo” on life support or suffering in pain in the hospital because the correct documentation was not in place for quick medical decisions to be made.
Even if the court awards the power to make decisions on the patient’s behalf, spouses, parents, and siblings are often oblivious to the wishes of their relatives as this topic has never been discussed.
If there is no power of attorney and no relatives apply to the court for the right to make decisions, the court may appoint someone to make decisions on behalf of the patient.
This is why it is so important to discuss end-of-life care with loved ones, no matter how tough the topic is to raise.
The bottom line is this: if you want to ensure that a particular person can make medical decisions on your behalf if you are unable to, you need a medical POA.
We recommend that you draw up a medical power of attorney to ensure that your health care wishes are carried out.
In the past, living wills were often used to communicate healthcare wishes but they have increasingly been challenged since 1990 when the Durable Power of Attorney for Health Care (“Patient Advocate”) Statute was passed into law.
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