What is a Durable Power of Attorney for Health Care?

As we get older, the chances that we might find ourselves unable to speak on our own increase. Many seniors face ailments such as Alzheimer’s, dementia, and other medical issues that can get in the way of our ability to make balanced, rational decisions. The possibility that we may face something like that in our lifetime doesn’t take away our personal preferences and wishes when it comes to healthcare, though.

For many, our positions on medical treatments that can resuscitate or prolong our days with no quality of life are essential. We still want our wishes to be respected even in the event that we can’t speak for ourselves. That’s when a durable power of attorney for health care comes in handy. Your medical POA can represent your wishes when you cannot do so yourself. But what is a medical power of attorney? What is a medical durable power of attorney? What is a non-durable power of attorney?

This guide aims to help readers understand these questions beginning with, “what is a durable power of attorney for health care?” In short, a durable power of attorney (DPOA) for health care is a legal document known as a health care directive or advance directive. In this document, you will name someone other than yourself, your health care proxy, who can make healthcare decisions on your behalf. A durable power of attorney for health care becomes useful when you no longer have the capacity to speak for yourself and express your wishes regarding health care decisions.

Understanding the value of a health care power of attorney requires more detail than this, so let’s jump in to the finer points to understand the importance of a durable power of attorney for health care.

A durable power of attorney starts with choosing someone you trust to represent you in all medical decisions if you cannot speak for yourself. Once you’ve selected the person you wish to serve as your healthcare power of attorney, you’ll legally name them in a durable power of attorney for healthcare document that will require witness signatures or a notary, depending on your state. Once the documents are signed, your healthcare durable power of attorney is official.

The agent you’ve chosen as your durable power of attorney for healthcare will then have a list of responsibilities that they will be expected to perform in the event you cannot speak for yourself. You may need your medical power of attorney if you’re in a coma or have dementia and other ailments that reduce your mental capacity. Your health care power of attorney may have to make some of the following decisions:

• Whether or not to proceed with medical treatments such as dialysis or surgery.
• Which medications to continue with and which you may want to stop.
• Where you may want to spend your final days.
• Who may access your medical records.
• Whether or not to use life-saving procedures to resuscitate, such as CPR or the use of defibrillators.

In short, any medical decisions that must be made regarding your treatment will be made by your durable power of attorney for health care. Through all of these decisions, the agent you have chosen to represent you has a moral and legal obligation to convey your wishes as best they can in all of their choices, even if their feelings conflict with what you want.

In setting up your durable power of attorney for healthcare, you’ll want to consider all of the medical decisions your agent may face on your behalf. It’s essential to go over your wishes with your healthcare power of attorney so that they know how to represent you in all of these decisions.

Unlike a durable power of attorney, a non-durable power of attorney ceases once the principal becomes incapacitated. Your durable power of attorney becomes effective as soon as you sign it and remains in effect, even in the event you can’t speak for yourself. When your power of attorney is non-durable, it is no longer in effect when something happens that results in losing your ability to make your own decisions. A non-durable power of attorney for health care would allow your agent to have access to your medical records and diagnoses to help you with health-related decisions while you are still capable of speaking for yourself, but it would lose its power once you are incapable of your own choices.

Like a durable power of attorney for health care, a durable power of attorney for finances enables a person you name in the document to make financial decisions on your behalf if you cannot do so yourself. However, your durable power of attorney for finances differs from the same for healthcare because the agent you name in the document can only make decisions regarding your assets, bank accounts, and investments — this is the main difference between a financial durable power of attorney vs. a healthcare proxy (or medical POA). Your financial power of attorney cannot make medical decisions on your behalf unless you have named the same person to both roles.

A financial power of attorney may object to some of the decisions made by your durable power of attorney for health care, however, if it affects your financial well-being. For instance, if your health care power of attorney decides to have you admitted to a nursing home, your financial power of attorney may object based on cost. Where your financial power of attorney and your health care power of attorney cannot come to an agreement, the courts will have to decide.

If you cannot speak for yourself or make your own decisions and you have not named a medical durable power of attorney, one will be appointed for you. Often this agent is selected from next of kin, partners, or spouses. Your spouse or guardian will be the first priority, but your surrogate may be your son or daughter, sister or brother, or an aunt, uncle, or cousin. The order of priority in choosing a surrogate differs from state to state. It’s important to note that in this scenario, you will not have any say in who your state-appointed surrogate will be, and you run the risk of having a surrogate who cannot or will not represent your wishes accurately.

A state-appointed surrogate or medical proxy is a person who becomes your medical decision-making agent in the event you are incapable of speaking for yourself, and you have not set up a medical power of attorney. Your surrogate will be chosen based on your state’s rules for such a selection.

In the event you are assigned a state-appointed surrogate, you run the risk of ending up with an agent you may not have wanted. Your surrogate may not be the person you would want to make medical decisions on your behalf.

Dementia afflicts a new patient every 3 seconds somewhere in the world. Currently, over 55 million people suffer from the disease worldwide, and that number is suspected to rise to over 130 million by the year 2050. Dementia is just one of the many ailments that can take your ability to speak for yourself. There is a good chance that each of us may face a day when we can’t voice our wishes independently.

If you have not named a durable healthcare power of attorney, a state-appointed surrogate will make your decisions for you. That means you could find yourself represented by someone who does not know your wishes and cannot represent them. You may find yourself undergoing treatments and being administered medications that you would never have wanted to be subjected to.

Naming your medical power of attorney now will protect you from having someone appointed for you. It allows you to sit down with the person you’ve selected and explain to them what your wishes are in different medical situations. You can ensure that your medical power of attorney understands what is important to you and is informed enough on your wishes to effectively represent them no matter what medical decisions are thrown their way. Putting together a medical power of attorney document takes minimal effort and time, and the benefits from having one are incalculable.

A durable power of attorney for health care and a living will certainly cover a lot of the same subject matter. In a living will, you outline your wishes for specific medical events. These are the same medical events about which your medical power of attorney would have to make decisions. In that sense, there is some overlap between the two documents. However, a living will is limited to the specific scenarios laid out within the document.

In contrast, a durable power of attorney can make decisions in the face of events outside these predetermined scenarios. A durable power attorney is a thinking, questioning human being who can also ask your doctor questions and familiarize themselves with the facts, risks, benefits and represent your wishes every step of the way. A living will is incredibly valuable when it comes to the specific scenarios discussed in the document, but things don’t always fall neatly into those scenarios. Your power of attorney is better suited to tackle the gray areas.

Your durable power of attorney should be, first and foremost, someone you trust. When considering who to select as your medical power of attorney, you’ll want to choose someone who can represent your wishes even when they may not coincide with their own feelings. Will your power of attorney be able to set aside any strong emotions they are feeling about the situation in order to stick with what you would have wanted? You may have people in your life who you fully trust but who may be in too much distress to make rational decisions in the event you are incapacitated. You want someone to represent you in all medical choices who will be able to keep a clear head and stick to what you would have wanted.

It’s also essential to select someone you find easy to talk to about difficult things. As your medical power of attorney, the person you have chosen will have to sit down and talk to you about your wishes and decisions regarding events that may not be easy to talk about.

Your medical power of attorney can be anyone of your choosing as long as they are a legal adult in your state and can enter into a contract. You can’t choose your doctor or healthcare provider, but you may choose a family member, a friend, or a peer from your place of worship. To make a choice a little bit easier, you may choose to speak with people close to you and get a feel for who might be able to represent you in medical matters best.

If you find that more than one person fits the bill, you may decide to name backups in case your first choice is unable to fulfill their responsibilities as your medical power of attorney.

The short answer is yes, but it gets more complicated. There are two ways to appoint more than one agent. First, you may decide to name successive agents or backups, as we briefly touched on in the last paragraph. Second, you can name co-agents or two people who share the responsibilities equally. Naming successive agents in your medical power of attorney document is good practice and can protect your wishes if your first choice cannot fulfill their duties. However, naming co-agents as your medical powers of attorney can sometimes be a poor decision. That’s because disagreements between the two agents can quickly arise. Rifts can be formed in families, and courts may have to become involved to settle disputes. If you can find one person who can make decisions based on what you would have wanted, it’s usually the best choice to go with one power of attorney for health care.

What if your choice for medical power of attorney can no longer fulfill their duties? Is it possible to name someone new to serve as my durable power of attorney for health care? The answer is yes. You can change your mind about your medical power of attorney at any time. All you have to do is shred the old documents, including any copies you may have given to your power of attorney, your lawyer, or your doctor, and then fill out new documentation naming your updated selection.

It’s good to revisit your medical power of attorney decisions every few years and change them as needed.

Designating a durable power attorney for healthcare starts first with making your selection. Before you make your decisions, you may wish to speak with several people you trust and get a feel for how they might handle the responsibility. Once you’ve decided, you should talk with the person you’ve selected and make sure they are okay taking on the role. It’s also a great time to go over your wishes and positions on different medical issues and scenarios so that they are able to make decisions for you as you would have.

Now that you’ve got a solid choice and you know that person is willing to take on the role of your medical power of attorney, you need to make it official. Each state has different documents with different requirements to name a medical power of attorney. You can find your state's process and conditions on this page. Some states will require witnesses to sign your power of attorney document, while others may need the document to be notarized. Familiarize yourself with the forms and requirements in your state and follow the instructions to fill out your medical power of attorney papers.

Once you’ve completed the documentation and your witnesses have signed it, or it has been notarized, you’ll want to put it somewhere safe. You should always keep the original in a locked box, safe, or filing cabinet that you have access to. Copies should also be made and given to your healthcare providers as well as the person you have named as your agent.

Our content is created for educational purposes only. This material is not intended to provide, and should not be relied on for tax, legal, or investment advice. Everdays encourages individuals to seek advice from their own investment or tax advisor or legal counsel.