Power of Attorney

An Introductory Guide to Healthcare Power of Attorney

A healthcare power of attorney (POA) is an essential tool that serves the function of protecting your medical wishes, should you become incapacitated or otherwise unable to make medical decisions yourself. In this introductory guide, we cover important issues to consider as part of your planning.

What is a Healthcare Power of Attorney?

A healthcare POA gives a trustworthy family member, friend or individual (the agent) the decision-making power to care for the principal should they become incapacitated or is unable to handle matters related to healthcare. The powers of an appointed agent can be broad or limited in scope, depending on how the POA document is drawn up. While it is common to appoint the same person to handle both financial and medical decisions for the principal, in some cases it makes sense to separate the two. The power can be immediate or only upon incapacity.

A healthcare agent may be called a lawyer-in-fact under a power of attorney and a healthcare proxy under an advance directive or living will. State laws determine the specific types of decisions that healthcare agents can make, but more generally, here is what a healthcare agent can do:

• Agree to or refuse treatment
• Withdraw treatment on your behalf
• Use information in your living will, past statements, and what they know about you personally to make medical decisions on your behalf
• Consent to surgery on your behalf
• Refuse to have you placed on life-support machines
• Request that you be taken off life support

According to WebMD, you should discuss “your desires, values, fears, and preferences about medical care in various situations. The more your agent knows about you and your values, the more likely he or she will be able to make the kinds of decisions you would make if you were able.”

Should I Choose the Same Person for Financial and Healthcare POA?

While many choose the same person for both their financial and healthcare POA, this shouldn’t be an automatic choice.

A financial POA assigns your agent the power to oversee your finances should you become physically or mentally incapable of handling your affairs, or when it isn’t convenient for you to be present. A healthcare POA assigns your agent to make medical decisions on your behalf when you are no longer able to do so, whether the situation is temporary or more long-term.

There are reasons to ask different individuals to take on these roles. Property management decisions are in a different category from medical decisions, which are often life-and-death concerns. Unless this is an individual who can competently handle both sets of affairs, then it’s worth considering two separate POAs.

Overseeing someone’s financial affairs “does not demand the intimate knowledge of end-of-life wishes or religious beliefs that a healthcare proxy holder ought to have. Some people may even choose a family attorney or their CPA for the role.”

Separating the two could potentially help you to choose the best person for each job. However, if you do select different people for each role, you will need to ensure that they can work together in your best interest should any overlapping issues arise. 

Additionally, many people fear getting a financial power of attorney because they think the agent will mismanage their estate. Legally your financial POA is bound by the fiduciary obligation to protect your best interests and can’t act against them. However, it’s critical that you choose someone you trust for your financial POA—someone who has integrity and enough business experience to understand the agent’s role and responsibilities.

In both cases, you are looking for an individual who is trustworthy and transparent with your best interests in mind, even if their beliefs differ from yours with respect to financial and healthcare decisions.

How do I Choose a Healthcare POA?

A starting point for the kinds of questions that should be asked when choosing someone to be your healthcare proxy.

1. Will they be able to make difficult healthcare decisions for you, even if their own wishes are different from yours?
2. Will their emotional connection to you complicate or obstruct their capacity to make difficult healthcare decisions on your behalf?
3. Will they stand up for you when you are incapacitated and unable to represent yourself and your needs? Are they a genuine advocate of your best wishes?
4. Will they be comfortable asking direct questions when communicating with doctors and other healthcare providers?
5. Are they competent at asking for clarification?
6. Are they efficient with their decision making in changing situations? Do they remain calm under pressure or in stressful circumstances?

The best candidate for your healthcare proxy is someone who can remain calm under stress, assertive on behalf of your needs, and unwavering in their commitment to you even if their beliefs differ from yours.

Though this varies from state to state, POA paperwork often allows you to name multiple healthcare proxies in succession. Multiple designations are something you may have to consider. But it’s important to note that there are complexities in choosing multiple healthcare proxies.

A primary concern that arises with multiple designations is how to handle a disagreement between co-agents. You will need to stipulate how the treatment options should be decided (by majority vote or another method), so that in the event of disagreement between co-agents, you don’t end up with less than optimal healthcare or a court battle.

The main thing to keep in mind is that you’re choosing someone who has the necessary qualities to be a great healthcare proxy. They will understand your health condition, symptoms and medical history. Other qualities to look for:

• Attention to detail
• Good communication skills – empathetic, good listener, assertive
• Fully committed to their duties as a healthcare proxy
• An understanding of how you want to be treated
• A full understanding of the treatments you want and don’t want

Once you’ve considered who might be a strong candidate to fill this role, you will need to have a thorough conversation with them about the responsibilities of the position and your healthcare decisions for the future. If you feel undecided about the right person to serve as your proxy, this conversation will help you get closer to determining whether they have the essential qualities.

The 5 Main Types of Power of Attorney

The type of power of attorney you choose depends on the requirements of your current situation. The main types include: non-durable, durable, special or limited, medical, and springing.

Non-durable POA: Used for a set period of time and usually for a particular transaction, in which the agent is granted authority to act on the principal’s behalf. Should the principal become incapacitated or once the transaction is completed, the non-durable POA ceases.

Durable POA: Much more encompassing than the non-durable POA, the durable POA can be used to allow an agent to manage all of the principal’s affairs, should they become unable to do so. Durable POAs do not have a set time period and can become effective immediately or upon the principal’s incapacitation, expiring upon their death. 

Special or Limited POA: Often used for one-time financial or banking transactions, or for the sale of a particular property, this type of POA is most often used when the principal is unable to complete the transaction due to prior commitments or illness. An agent is appointed to act on their behalf for a limited basis. 

Medical POA: Should the principal become incapacitated, this type of POA grants the agent authority to take specific control over their healthcare decisions. 

Springing POA: This type of POA is the most flexible of the five types listed here. It becomes effective at a future time upon the occurrence of a specific event, such as the incapacitation of the principal, or an event that occurs when the principal is unable to act upon it.

What You Need To Do: A Simple Healthcare POA Checklist

1. Consult with a lawyer. An estate planning attorney can help you with a healthcare POA, advance directive/living will and think through different medical scenarios, so you can identify what it is that you really want documented.
2. Execute the Proper Documents State law will need to be followed to properly execute your documents. Your signature is required to make it valid and legally binding; some states require notarization and the signature of two witnesses. You should consult with a lawyer.
3. Talk to your inner circle. Tell your doctors, family members and those closest to you that you have selected your healthcare agent.
4. Distribute copies of the form. After you have finalized all of the documents, you’ll need to distribute them to the correct people. Ask your lawyer who may need a copy after you have given copies out to the following (partial) list: primary care physician, any specialist who regularly treats you, anyone designated as a co-agent (if you have chosen multiple agents), close family members and friends you want included on this decision, the administrator of your assisted living facility (if you have one), and the hospital or medical clinic at which you primarily receive treatment.

What is the Difference Between a Living Will and a Power of Attorney for Healthcare?

Depending on state law, an advance directive or living will allows you to declare your preferences if you are terminally ill, persistently unconscious, or face other end of life conditions. A healthcare POA generally addresses minor healthcare decisions. It may not be obvious at first what the difference is between a living will and an assigned POA for your healthcare decisions. You should consult with a lawyer about these important decisions. Once you’ve appointed your proxy, you should discuss your wishes with them about medical care, including resuscitation, artificial nutrition and hydration, quality of life, and other end-of-life concerns.

What Can’t a Healthcare POA Do?

The POA document can assign broad or narrow powers to the healthcare agent. If it doesn’t contain any limitations, then the agent has broad power over medical decisions. But there are still things that a healthcare POA can’t do, including:

• Change a principal’s will
• Make decisions on behalf of the principal after their death (except where the principal has also named the healthcare POA as the executor of their will, or the principal dies without a will and the agent petitions to become administrator of their estate)
• Change or transfer POA to someone else
• Break their fiduciary duty and act against the principal’s best interest

A healthcare agent can decline their appointment at any time, but unless the principal named a co-agent or alternate agent in the POA document (or is capable of choosing another POA to act on their behalf), the agent can’t choose who takes over their duties.

The advantage of appointing a healthcare agent is to clearly state who has the authority to make medical decisions on your behalf. Without a POA or a living will in place, your family members may disagree about the type of medical care you should receive in case of incapacitation. Decisions about your healthcare may be made by doctors, hospital administrators or judges, depending on the state you live in.

Instead of having this crucial decision left in the hands of those who you haven’t personally appointed, you should consider completing an advance directive/living will and healthcare power of attorney. LegalShield can help you with this process.