ESTATE PLANNING 101 – “Health Care Power of Attorney”
By: Joseph Langworthy | Published September 14, 2022
In the past several posts, I introduced the concept of a power of attorney, and dove a little deeper into the financial power of attorney document. Today, I want to discuss the other commonly used power of attorney document: the healthcare power of attorney.
The healthcare power of attorney is a document that gives an individual (the “agent” or “attorney-in-fact”) the ability to speak with doctors and make medical decisions for another individual (the “principal”), in the event that the principal does not have capacity to make the decision or cannot communicate that decision. This document, also known as a healthcare “proxy”, is an important part of any estate plan. In fact, the importance of the document is so widely agreed upon in the legal profession that the Missouri Bar has created a free form for the public to create their own Healthcare Power of Attorney. Under the Federal Patient Self Determination Act, hospitals and doctors are required to ask patients if they have a healthcare power of attorney/advanced directive in place before procedures, as they need to know who they can speak to in case something goes awry. Those institutions may have their own forms as well.
While a properly executed healthcare power of attorney does give the agent the ability to make medical decisions for the incapacitated principal, it does not give the agent any insight into how the principal would want the decision to be made. That is why healthcare powers of attorney are routinely combined with an “advanced directive,” which lays out what treatments the principal does or does not want to have administered if they are in a persistently unconscious state (i.e., in a coma with no realistic chance of recovering) or in the end-stages of a terminal illness. Advanced directives, also sometimes called living wills, medical directives or healthcare declarations, help the agent by laying a foundation for how the principal wants to be cared for if and when it becomes necessary for the agent to make decisions for the principal. This is where a principal indicates their desire for life-saving treatment to either be administered or withheld if they become persistently unconscious. This is also where a principal can state their preference for or against organ donation.
In a slight contrast to the financial power of attorney, the powers of the agent appointed under a healthcare power of attorney do not necessarily end immediately at death. The principal can also designate that the agent has the authority and responsibility to follow the principal’s wishes with regards to the disposition of the principal’s remains. This means following through with the principal’s desire to donate (or not donate) their organs and arranging for the disposition of the principal’s remains after their death. You may see this referred to in documents as the “right of sepulcher.”
If you are interested in discussing your own healthcare power of attorney, or any other aspect of your personal estate plan, please get in touch with our office and schedule an appointment to meet with me. I would be more than happy to assist you.
I look forward to speaking with you!