What You Need to Know about Power of Attorney and Health Care

Excerpted from Power of Attorney Handbook by Edward A. Haman, Attorney at Law © 2004

This chapter discusses the following documents relating to health care issues:

 durable power of attorney for health care;
 living wills;
 do not resuscitate orders; and,
 anatomical gifts.

It also discusses what happens in the absence of any of these documents. This chapter is primarily concerned with the health care power of attorney, but you should also be aware of the other three that are included.

Durable Power of Attorney for Health Care
A durable power of attorney for health care allows you to designate an agent to make all decisions about your health care if you are unable to make these decisions yourself. This applies to all health care decisions, for all types of medical conditions. It is much broader than a living will, which only expresses your desires if you become terminally ill or permanently unconscious and are unable to express your wishes regarding the use of life-prolonging procedures. (There are problems that may arise if you have a health care power of attorney, but do not also have a living will. These potential problems will be explained in the section of this chapter on “Living Wills.”)

The health care power or attorney is not limited to situations where you are terminally ill, in a persistent vegetative state, or in some other condition narrowly defined in your state. It is not limited to life-prolonging procedures either.

Example: Dave is in a automobile accident that leaves him in a coma. His physician expects him to eventually recover, so he is not in a terminal condition, end-stage condition, or persistent vegetative state. While Dave is in the coma, a question arises about whether he should have surgery. If he were not in a coma, Dave would be able to listen to the doctor’s explanation of the relative risks and benefits of having the surgery or not having the surgery, and could make a decision. But since Dave is in a coma, he cannot make this decision.

Dave has a living will, but this does not come into play here because he is not in one of the three conditions provided for in a living will. As Dave does not have a health care power of attorney, his state’s law allows his only son, Jim, to make the decision. Jim has an eighth grade education and is not someone Dave would trust to make important medical decisions. Dave would prefer to have his mother, who is a registered nurse, make such decisions, but under his state’s law, a son out-ranks a parent. Dave should have made a health care power of attorney naming his mother as his agent.

Unless you live in a state that legally recognizes health care powers of attorney, you may have difficulty getting one accepted by doctors and hospitals. However, on the chance that one would be honored, it would still be better for you to have one. You can also ask your doctor or local hospital administrator whether they accept and honor health care powers of attorney.

Statutory Forms
The following states have created health care powers of attorney in their laws: Alabama, Alaska (included in a general financial power of attorney), Arizona, California, Connecticut (included in a general financial power of attorney), Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana (included in a general financial power of attorney), Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico (both as part of the general financial power of attorney, and as a separate form), New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, and Wisconsin. Forms specific for these states are found in Appendix C.

A few states have forms with titles that appear to be health care powers of attorney, but the content of these forms shows that they are really living wills that merely designate someone to communicate your living will desires to health care providers.

Health care authority is also provided as part of a general power of attorney form in Alaska, Connecticut, Indiana, and New Mexico. You can use these forms for health care alone, either by only selecting the health care provisions in the Indiana and New Mexico forms, or by deleting all other provisions in the Alaska and Connecticut forms.

If you live in one of the states listed above as having a specific health care power of attorney form, locate the form for your state in Appendix C. All of the forms are fairly simple to complete. They all require you to fill in your name and identify your agent. Any other places to check or fill in information are very clear as to what is needed. Some forms include provisions for a living will, to state your desires regarding an autopsy and the donation of organs, and to designate your primary physician. Some also contain detailed information about who may and may not serve as witnesses. In any case, be sure to carefully read your state’s form, because many include detailed information and instructions to help you fill in the blanks.

Generic Forms
If you do not live in a state with its own form, you may use form 3. (see form 3, p.106. ) It is a health care power of attorney with living will provisions.

The All-In-One Power of Attorney
As discussed previously, it is possible to have one document serve as both a financial and health care power of attorney. If you wish to have such an all-inclusive power of attorney, see the section on “Durable Power of Attorney” in Chapter 4. However, you will still need a living will, as explained later in this chapter. Also, if your state has a specific form in its statutes for a health care power of attorney, you should use your state’s form. Check Appendix C to find out if there is a specific form for your state.

Your Health Care Agent
You should give careful thought to the choice of a health care agent. After all, you may end up trusting this person with your life. Your agent should be someone you are close to and trust completely. A agent’s responsibilities are often set forth in a state’s laws. Generally, an agent may be expected to consult with health care providers and make informed decisions. Therefore, you should choose someone who is capable of understanding medical matters when explained by a doctor or other health care provider.

An agent is generally expected, or even required, to make decisions based upon what he or she believes you would decide under the circumstances. Therefore, you and your intended agent should discuss various possible injury and illness scenarios and what type of treatment you would or would not want in certain circumstances. Some questions that should be asked and answered include the following.

 How do you feel about life-prolonging procedures?
 What types of medical procedures would you, or would you not, want?
 Do you feel the same about these things in relation to being in a permanent coma as you do in relation to a terminal condition?
 If you were to be withdrawn from life-prolonging procedures, would you want that to include withholding water and feeding by artificial means?

These are just a few of the types of questions to be considered and discussed. You might also want to discuss your religious beliefs. All of this could help your agent make decisions for you. It might even help your agent defend his or her decision if challenged by another family member about what you would really want. Of course, one of the best ways to help your agent deal with certain conditions is to write down your wishes in a living will.

Those Who Can Make Medical Treatment Decisions
In some states, there is no law regarding who may make medical treatment decisions for another person. Other states have detailed laws on this subject. Of course, if you are mentally capable of understanding the options and expressing your wishes, then you always have the sole right to make the decision. However, if a patient is either mentally incapable of making the decision or is unable to communicate a decision, the following categories of people may be authorized to make decisions for the patient:

 an agent pursuant to a health care power of attorney;
 a court-appointed guardian who has been specifically authorized to make health care decisions;
 the patient’s spouse;
 the patient’s adult child, or a majority of his or her children;
 a parent of the patient;
 an adult brother or sister of the patient, or a majority of siblings;
 an adult relative of the patient; or,
 a close friend of the patient.

You may want to review this list and think about who might end up making life or death medical decisions for you. If this causes you some worry, a health care power of attorney, especially together with a living will, may alleviate your concern.

Living Wills
A living will is a legal document in which you express your wishes for the type of medical treatment you do, or do not, want in the event you suffer an illness or injury that leaves you in a particular type of medical condition. A living will typically only applies to what are considered life-prolonging procedures and only covers certain serious medical conditions that are defined by law.

Depending upon the state, laws generally provide for a living will to cover one or more of the following types of medical conditions:

 a terminal condition—typically defined as a condition caused by injury, disease, or illness from which there is no reasonable probability of recovery and which, without treatment, can be expected to cause death;
 a persistent vegetative state—typically defined as a permanent and irreversible condition of unconsciousness in which there is no voluntary action or cognitive behavior and an inability to communicate or interact purposefully with the environment; and,
 an end-stage condition—typically defined as a condition caused by injury, disease, or illness which has resulted in severe and permanent deterioration, indicated by incapacity and complete physical dependency, and for which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective.

If at least one of the authorized conditions exists and you are either unable to make decisions or are unable to communicate your decisions, a living will expresses your decisions about whether you want to receive life-prolonging procedures.

A typical definition of a life-prolonging procedure is:

any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function.

The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain. To cover any other medical procedures you would need a designation of health care agent.

Therefore, the following statements are true.

 As long as you are able to make and communicate decisions about your care, a living will has no effect.
 If at least one of the medical conditions described in your state’s laws does not exist, a living will has no effect.
 If the medical procedure at issue is not a life-prolonging procedure, a living will has no effect.

If you have a health care power of attorney surrogate that authorizes your agent to make decisions about life-prolonging procedures, you may wonder why do you need a living will. The answer is that a living will can help your agent make decisions based upon what you want. Your agent’s duty is to make decisions based upon what he or she reasonably believes are your desires. Therefore, at some point, you need to tell your agent your desires in certain situations. This can be orally or in writing.

If there is no written direction, your agent will rely on conversations you have had in which you expressed such things as what you would want if you were terminally ill, in a permanent vegetative state, etc.; as well as anything you may have said about your religious or philosophical beliefs. Through a living will, you can leave more concrete evidence of your wishes. The following case will
show how this can be important.

Example: Jane and Bill are married. Jane has told Bill that if she were ever in a terminal condition or a permanent coma (i.e., permanent vegetative state), she would not want to be kept alive with any machines, feeding tubes, etc. Jane is in an automobile accident that leaves her in what her doctors have deemed a permanent vegetative state. After ten years of keeping her alive with a feeding tube, Bill finally decides that it is time to honor Jane’s wishes and withdraw the feeding tube. Jane’s parents, who cannot stand the thought of losing their daughter and therefore refuse to accept that she is not going to recover, file a lawsuit to stop Bill from having the feeding tube removed. Jane’s parents claim they have evidence that Jane never told Bill about her attitude toward the type of situation she is in. It could take years for this case to wind its way through the various trial and appellate courts, while the feeding tube remains. If Jane had executed a living will, there would be little room to question her desires.

Some state’s forms also allow you to designate a person to assure that your wishes are carried out. However, unlike a health care power of attorney, a living will does not allow the person you designate to make health care decisions for you. It only allows that person to insist that your wishes expressed in the living will are followed. However, as discussed above, a living will can be very helpful to support decisions made by your health care agent. Paragraph 4 in the Durable Power of Attorney for Health Care is essentially a living will. (see form 3, p.106.)

Do Not Resuscitate Orders
A do not resuscitate order is a form that notifies medical care providers, such as hospital staff, nursing home or assisted living facility staff, and paramedics, that no resuscitation efforts are to made in the event the patient’s heart or breathing stops. You may also hear this referred to as a no code order, or abbreviated DNR. Basically, do not resuscitate orders are used when the patient has a terminal condition and resuscitating the patient would do nothing more than briefly delay death and prolong discomfort.

A do not resuscitate order is typically signed by the patient’s physician. In addition, depending upon the state, it may also be signed by one of the following:

 the patient;
 the patient’s health care agent if the patient is incapacitated; or,
 the patient’s court-appointed guardian who has the authority to make health care decisions.

This form is then posted in the patient’s hospital or nursing home room, or somewhere in the patient’s residence. Since this form will be provided by the physician, it is not included in Appendix C.

Example 1: Bill is 95 years old, is mentally competent, and is suffering from severe congestive heart failure. He is only expected to live, at most, a few more months. Bill decides that, if his heart stops, there is no point in the hospital staff resuscitating him so that he can only be in discomfort for a few more weeks and have to go through another heart attack. Bill and his doctor sign a do not resuscitate order.

Example 2: Margaret is 82 years old and has late-stage Alzheimer’s Disease leaving her bedridden with no quality of life. She has a health care power of attorney that appoints her daughter, Jean, as her surrogate. After consulting with Margaret’s doctor, Jean decides that there would be no point in resuscitating Margaret so that she could continue in a vegetative state for a few more weeks or months. Jean and her mother’s doctor sign a do not resuscitate order.

Anatomical Gifts
An anatomical gift is when a patient, or other person with authority to make health care decisions, agrees to donate organs, other body parts, or the entire body upon death. In some states, such gifts are provided for on a person’s driver’s license. You may also have an opportunity to sign a document for an anatomical gift when being admitted to a hospital. Forms may also be available from various medical facilities, doctors, government agencies, organ banks, etc.