A medical power of attorney is awarded to a person who can make medical decisions on your behalf if you are unable to. For instance, if you cannot speak, or are in a comatose state, your medical power of attorney is the person in charge of making decisions about your health care. Your medical power of attorney can take charge of your medical care after any accident or illness leads to an inability to make your own decisions.
Other Terms for Medical Power of Attorney
A medical power of attorney may also be called a health care power of attorney, healthcare proxy, durable power of attorney for healthcare, or a healthcare agent, among many other titles.
Medical Power Of Attorney vs Financial Power Of Attorney
Both medical and financial power of attorney are legal terms that require legal documentation, but a standard power of attorney document is designed to allow someone to make financial decisions for you only while you are capable of making decisions for yourself. For instance, if you have an accident that leaves you incapacitated, a standard power of attorney document becomes void in most states.
If you become incapacitated, either physically or mentally, a medical power of attorney or durable medical power of attorney is a document that allows a named person to make medical decisions on your behalf, and the document does not take effect until you become unable to make your own decisions.
Discuss your wishes with the person named as executor of your medical power of attorney, and work with a lawyer to create a living will to ensure your personal choices are honored when you can’t voice your wishes yourself.
Do I Really Need An Advance Directive?
If you plan on allowing your family to make decisions for you, you should check the laws in your state. Some states do not allow family members to make decisions, particularly when the treatment provided is life-sustaining. For instance, unless you have a living will, medical professionals determine whether life support should be continued unless there are legal documents allowing an agent to make the decision. Because state laws vary significantly, an advance directive is a must when you want to make your own choices or allow a family member to make those choices for you.
An advance directive also offers you the advantage of choosing the person who makes your medical decisions when you are no longer able, and a living will ensures your wishes are known. Another advantage of having an advance directive is that your family is able to confidently make decisions regarding your care even in the most challenging situations. An advance directive is a simple way to relieve your loved ones from the worry, guilt or regret that may come with making medical decisions on your behalf.
Are Both A Living Will and Medical Power of Attorney Necessary?
Both a living will and a power of attorney are needed to ensure your wishes for care are honored. A medical power of attorney appoints an agent to make your medical decisions for you when you are incapacitated, while a living will allows you to make specific decisions regarding your care while you are able to make decisions.
The Benefits Of Appointing A Healthcare Agent
The benefits of appointing a healthcare agent include being able to communicate your wishes to a person that you know and trust, and allowing you to verbally share your wishes with someone close to you. The benefits of having a living will are also important to consider.
The Benefits Of A Living Will
When your appointed agent must make a decision to continue or discontinue medical treatment, your living will provides your agent with the guidance that they need to make the right decision.
Your living will also provides emotional reassurance to your agent and provides other caregivers with a plan for your care if your agent isn’t available. A living will is active even if your agent cannot make decisions for you, and the document must be honored even if someone else is making the decisions.
When You Cannot Appoint An Agent
If you don’t have someone who is willing to act as your agent, you should complete a clear, detailed living will. Make sure that your primary physician has a copy of your living will in your medical record, and provide all medical organizations, such as hospitals or hospices, with a copy of your living will to put in your medical record.
You can also discuss your living will and the decisions that you want to be made on your behalf with a person who is close to you. Family members, close friends, social workers, or case managers are all options if you don’t have a specific person to appoint as your agent. Your pastor, priest or other spiritual leader are also good choices to talk to if you don’t have an agent to appoint.
How Soon Does My Advance Directive Become Effective?
Your advance directive becomes legally recognized immediately upon signing the document in front of the witnesses required in your state. The document cannot be used until you are incapacitated, however. For instance, the document does not allow anyone else to make medical decisions for you as long as you are physically and mentally able to make your own decisions.
The advance directive becomes active, or can be used, when your health condition meets the criteria for incapacitation according to state and local laws.
When Does My Living Will Become Active?
Typically, two licensed medical doctors must declare you unable to make your own decisions before a living will becomes active. The state’s living will law can impact the exact time that your living will becomes active, but in most states the living will is used when the person is rendered permanently unconscious. A person who is able to make sound decisions is not obligated to follow the instructions in their living will.
When Does My Medical Power of Attorney Become Active?
A physician must determine that you are unable to make your own decisions before a medical power of attorney becomes active. A person who regains their ability to make decisions is no longer obligated to follow the decisions of their agent. Your state may also have other laws concerning when your agent can act for you. For example, your medical power of attorney may only be active when the decision concerns using life-sustaining medical treatments.
Is My Advance Directive Honored When Receiving Treatment Outside a Medical Facility?
EMTs do not honor healthcare powers of attorney or living wills. If you experience an emergency situation at home, or you are in a region where you medical records aren’t readily available, the emergency personnel is not required to honor your advanced directive unless you can present a non-hospital do not resuscitate (DNR) order.
A non-hospital DNR order prevents emergency personnel from performing CPR when the heart or breathing stops. The non-hospital DNR order does not prevent any treatments aside from CPR.
Without an non-hospital do not resuscitate document, emergency personnel provide the treatment necessary to stabilize you and move you to a hospital, where your records may be available. Your advance directive becomes active after a licensed physician evaluates your condition and determines the cause and treatments for the condition.
Are Advanced Directive Honored in Other States?
Each state has specific laws concerning advance directives. Some states do honor out-of-state advance directives, while others do not. If you are traveling outside your home state for an extended time, you can review the laws in the state to determine whether your advance directive is honored. For those frequently visiting other states, prepare an advance directive for each state you regularly visit to ensure your wishes are honored.
How Do I Change My Advance Directive?
If you want to change or update your advance directive, you must create a new document. Review your advance directive at least once annually, and make updates as needed to reflect new decisions.
Do I Need a Witness?
All states require a witness when creating an advanced directive. Most states require at least two adults be present at the time the document is signed, or a notary may act as a witness when signing the document. The witnesses are required to ensure the document is signed by the person named in the document, to ensure a person isn’t forced to sign the document and to help prevent a person from signing a legally binding document when they aren’t of sound mind and body.
You do not have to allow witnesses to read your advanced directives, but you cannot allow your agent or an alternative agent to witness the signing. Additionally, some states require the witnesses to be someone other than a relative, and prevent anyone who might benefit from your estate from witnessing the signing of the document. To avoid nullifying the document, read the requirements for witnesses in your state before signing your advance directives.
Where Do I Keep My Advance Directive?
You should keep your advance directive in an easily accessible place, and make copies of the documents for your agent, alternative agent, doctor, and others who may be in charge of your care. Make sure that your loved ones or caregivers can easily find the documents, and do not store your advance directive in a safety deposit box or other inaccessible location. Without access to the document, your agent won’t be able to make medical decisions on your behalf should you become incapacitated and in need of emergency care.
Other people, such as your spiritual leader, can also be provided with a copy of your advance directive. If you are concerned that your agent may not be available in the event of an emergency, ask your local hospital to put a copy of your advance directive in your medical record. Make sure to provide the hospital and other caregivers with an updated advance directive as needed.
Can Healthcare Providers Face Legal Consequences for Honoring My Advance Directive?
Advance directives typically include a section that specifically prevents healthcare providers from being legally responsible for following the orders in the document.
Is My Healthcare Provider Required to Honor My Advance Directive?
If your advance directive conflicts with the healthcare providers moral, ethical, or religious beliefs, they are not required to honor the advance directive. Talk to your physician or other healthcare provider to determine whether your advance directive conflicts with their beliefs, and consider switching to a new healthcare provider if your advance directive is not currently honored.
What If I Don’t Have An Advance Directive?
If you are unable to make your own medical decisions, and do not have an advance directive, your healthcare decisions are typically made by your primary physician and your family. Some states have decision-making statutes that identify the family member or person able to make decisions for an incapacitated person. Your family and physician must use current laws to determine who is in charge of making your medical decisions.
Federal Laws Concerning Advance Directives
The Patient Self-Determination Act, or PSDA, is the federal law that addresses advance directives. The law states that any medical institution that processes federal healthcare payments, such as Medicaid, to have a process for handling and executing advance directives, and requires the institution to advise patients of their right to have an advance directive according to current laws.
The law doesn’t require medical institutions to provide any forms related to advance directives, and does not force patients to have an advance directive.
Can I Include My Organ Donation and Burial Wishes in My Advance Directive?
Many states allow you to include your wishes concerning organ donation in your advance directive, while other states prefer organ donors to complete an organ donation form. Make sure that your caregivers or agent knows that you want to be an organ donor.
Burial wishes are not included in an advance directive because the directive is designed to address medical situations that occur while you are living. Burial wishes may be included in a standard, non-medical will, or you can talk to your agent, family members, friends, or a leader of your religious organization about your burial wishes.