The Medical Power of Attorney

When I talk with clients about estate planning, I often need to start with the basics, giving them a good solid foundation.  I am not sure I have done that yet on my blogs, so I am excited to do a four part series where I talk about the basic, foundational documents of every estate plan.  Hopefully this will set a good foundation for you.

In my opinion, any estate plan should have these four basic, fundamental, foundational documents:

1. A Will
2. A Financial Power of Attorney
3. A Medical Power of Attorney
4. A Living Will (also called an Advanced Directive)

This blog will talk about a Medical Power of Attorney: what is a Medical Power of Attorney, what should be in a Medical Power of Attorney, and why do you need a Medical Power of Attorney.  This blog only discusses the basics of a Medical Power of Attorney, and is not a comprehensive guide to everything involved in creating a Medical Power of Attorney.

 

Before we begin, let’s cover some fundamental terms to understand for this discussion:

Principal: the individual who creates a power of attorney and gives power to another person

Agent: the individual who receives power or authority from the principal under the power of attorney

 

Medical Power of Attorney: What it is

A Medical Power of Attorney is a document that gives someone power to make medical decisions for you when you are unable to act on your own, known as an agent.

This is a large responsibility, as you are picking someone to make medical decisions for you, so you want to pick the person to make medical decisions wisely.  An agent under a Medical Power of Attorney must act in your best interest, but also needs to understand what your wishes and desires are concerning medical treatment.

Many times, more than one medical treatment option exists.  Surgery may be an option, or physical therapy, or medical drug therapy, or there may be different surgical option – traditional, lathroscopic surgery, non-invasive surgery, or other types of surgical treatment.  Not every person has the same view of medical treatments.  Some people see medical drugs as evil, others see medical drugs as miracles.  Some people see surgery as a last resort, others see surgery as a great first option.  Whoever is serving as your agent should know your views on medical treatments and what you might want.

An agent under a Medical Power of Attorney can choose what the agent believes is in your best interest, even if that treatment option may not be what you would have chosen.  That is fine, but it is also part of why you, as the principal, need to choose an agent who will act in a manner you will approve, or at least live with it once the choice is made!

For example, my in laws have a child who is a doctor, and one who is an accountant (the one I married).  If I give you three guesses which one is their agent under a Medical Power of Attorney, and the first two don’t count, who do you think will be the agent, the doctor, or the accountant?

 

What To Put In a Medical Power of Attorney

You don’t need to spell out all of your wishes and desires for medical treatment in a Medical Power of Attorney.  Instead, you want to give your agent the necessary power to make decisions for you. This can include the power to consent to a medical procedure, refuse a medical procedure, choose among medical procedures, and make other similar medical decisions.  In general, it is also a good idea to include the ability to consent to psychiatric treatment, choose a care facility for someone who may be elderly, or retain the right to visit someone in a care facility.  These are important items to write out, and important powers to give your agent.

Also important to address are the privacy laws that exist concerning medical health information.  HIPAA, or the Health Insurance Portability and Accountability Act, established rules to protect private health information.  In addition, Colorado has its own Colorado Patient Autonomy Act.  The patient privacy part of these law dictate that, a doctor, nurse, or other similar medical professional cannot disclose your private health information to someone who does not have the correct authorization to receive such information.

As part of a Medical Power of Attorney, or in a separate HIPAA authorization form, you will want to give your agent authorization to discuss you private health information.  This will allow your agent to discuss your private health information before making a decision. Can you imagine needing to make a decision without important medical information because you could not discuss private information?  That is a disaster waiting to happen!

 

You Need A Medical Power of Attorney

(Yes, you – yourself, not someone else)

Everyone needs a Medical Power of Attorney, and that means you.  Not someone else, not your mother, father, brother, sister, aunt, uncle, cousin, dog, or cat, or cat in the hat, but you.  You want to put a Medical Power of Attorney in place before a crisis hits. Since you are not currently in crisis, you need a Medical Power of Attorney, and you need one now.

I received a call several years ago from a potential client who told me they needed to set up a Medical Power of Attorney for their uncle.  The uncle was in a skilled nursing rehab center and suffering from dementia.  I met with the uncle and could tell the dementia was bad enough that the uncle would not understand what he was doing to sign a power of attorney.  Since the person was unable to understand the document and what it would do, the person could not create a power of attorney. I advised the person who called me to apply for guardianship to the court.  Apparently a different person got him to sign a power of attorney that gave another person power to act on his behalf. The person who called me had to apply for emergency guardianship to stop the other person from acting, and an expensive, months long court battle ensued.  Don’t let that happen to you.

 

Plan Ahead – Before a Crisis Hits

More likely, you could end up with an emergency medical situation.  As you are driving to the hospital, or riding behind an ambulance taking a loved one to the hospital, it is probably too late to get a Medical Power of Attorney signed.  By planning ahead and getting your power of attorney prepared before a crisis hits, you will be ready. You can start the process by making an appointment here.