Medical Power of Attorney FAQ's

MEDICAL POWER OF ATTORNEY

Also known as a Health Care Power of Attorney

AFTER ACT 169

The most frequently neglected need is one that is made in anticipation of a medical emergency or disability. If you are in an accident, or suffer a disease or disorder that may leave you unable to articulate your own wishes, a medical power of attorney document allows you to choose in advance who will represent your interests, and can impose upon the medical community the restrictions you wish. You may wish to make clear, for example, that the person you choose to represent you is not authorized to override your “living will”, an instrument which limits the right of doctors and hospitals to resuscitate you or to utilize invasive life support to keep you alive.

Most people who engage in estate planning in anticipation of possible disability obtain both a medical power of attorney and a general financial power of attorney from the client.

A general financial power of attorney enables a person to name a trusted loved one to oversee his/her finances while incapacitated.

A medical power of attorney helps your doctors determine when life-supporting measures should be stopped. A medical power of attorney only has this responsibility for healthcare decisions, and cannot make financial or other decisions on your behalf (unless, of course, you've granted both a Durable Financial Power of Attorney and a Medical Power of Attorney to the same person).

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What is a Medical Power of Attorney?
It is a document signed by a competent adult designating a person that you trust to make health care decisions on your behalf should you be unable to make such decisions. The individual chosen to act on your behalf is referred to as an “agent.”

When does the Medical Power of Attorney go into effect and how long is it effective?
It is effective immediately after it is executed and delivered to the agent. It is effective indefinitely unless it contains a specific termination date, it is revoked, or you become competent.

When does the agent have the right to make health care decisions on my behalf?
An agent may make health care decisions on your behalf only if you are unable to communicate your own health care decisions in any manner.

Can the agent make a health care decision if I object?
No. Treatment may not be given or withheld if you object.  And in the Medical Power of Attorney document itself, you may limit the agent's decision-making authority.

How is the Medical Power of Attorney revoked?
A Medical Power of Attorney may be revoked by notifying either the agent or your health care provider orally or in writing, of your intent to revoke. Further, if you execute a later Medical Power of Attorney, then all prior ones are revoked. If you designate your spouse to be the agent, then a later divorce revokes the Medical Power of Attorney.

Do I need a Medical Power of Attorney?
There is a chance in your lifetime that you may be seriously injured, ill, or otherwise unable to make decisions regarding health care. If this should happen, it would be helpful to have someone who knows your values and in whom you have trust to make such decisions for you.

Who should be selected as an agent?
Your agent should be knowledgeable about your wishes, values, and religious beliefs, and in whom you have trust and confidence. In the event your agent does not know of your wishes, that agent should be willing to make health care decisions based upon your best interests.

Can there be more than one agent?
Yes. Although you are not required to designate an alternate agent, you may do so. The alternate agent(s) may make the same health care decisions as the  primary agent if the designated agent is unable or unwilling to act.  You could also name a joint agent.

Who can be an agent?

Anyone over 18 years of age may act as an agent other than the following:

  • Your healthcare provider;
  • An employee of the healthcare provider unless the person is related to you;
  • Your residential care provider;
  • An employee of your residential care provider unless the person is related to you.

Do you need a witness and a notary?
Yes. You and two witnesses must sign the Medical Power of Attorney in front of a notary public. The witnesses must not be:

  • Designated to make a health care decision on your behalf;
  • Your attending physician or an employee of the attending physician;
  • Entitled to a part of your estate;
  • A person having a claim against your estate;
  • An employee of a health care facility in which you are a patient if the employee is providing direct care; or
  • An officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.

What is the difference between a Medical Power of Attorney and a Directive to Physicians?
The Directive to Physicians is a document that is limited in scope, addressing only the withholding or withdrawing of medical treatment for those persons having a terminal or irreversible condition. The Medical Power of Attorney is broader in scope and includes all health care decisions with only a few exceptions. The Medical Power of Attorney does not require that you be in a terminal or irreversible condition before your agent can make health care decisions on your behalf.

What right does the agent have to review my medical records?
The agent may, in the course of making a health care decision:

  • Request, review, and receive information about your physical or mental health, including medical and hospital records;
  • Execute a release required to obtain the information; and>
  • Consent to the disclosure of the information.

To what extent is an agent liable for a decision made under the authority of a Medical Power of Attorney?

An agent, acting in good faith, will not incur criminal or civil liability for a healthcare decision made under a Medical Power of Attorney.

What liability does a physician or other health care provider incur as a result of a decision made by an agent under a Medical Power of Attorney?

The principal's attending physician, or other healthcare providers, will not be subject to civil or criminal liability, or disciplinary action if any act or omission is performed in good faith under the direction of an agent who has a Medical Power of Attorney, provided the act or omission does not constitute a failure to exercise due care in the provision of healthcare services.

Who is liable for the cost of medical care decisions made by the agent?

The agent will not be responsible for the cost consequent to the agent's decision if the principal, if competent, would not have been liable for the costs connected with making the same decision as the agent.