Durable Power of Attorney for Health Care

In 2016, the number of adults aged 65 and older in the U.S. increased to 49.2 million from 35.0 million in 2000 according to a 2017 U.S. Census Bureau report. Older adults now make up 15.2% of the U.S. population compared to 12.4% in 2000.

Life expectancy has notably increased over the years. Unfortunately, health status has not improved as well which has affected the quality of life for older adults. As such, it’s important for you and your loved ones to under the options available to you should you be unable to make decisions about your personal, care, and financial needs. By the end of this article, you’ll understand how a durable power of attorney for health care works.

Health Care Directives

Consider the following statistics:

  • Nearly 80% of older adults have at least 1 chronic condition.
  • Nearly 70% of older adults have at least 2 chronic conditions.
  • A reported one-third of adults 65 years and older fall yearly.

These chronic diseases and illnesses often affect both mental and physical abilities resulting in dependency on others for assistance with activities of daily living (ADLs). Because of medical technological innovations, these diseases may also lead to injury-causing procedures for those who are frail and terminally ill. Poll results of a Compassion & Choices survey found that nearly 25 million (1 in 4) older adults “experienced excessive or unwanted medical treatment.”

How may an individual protect themselves from a similar experience?

They may make known their medical wishes through an advance health care directive.  Advance care directives allow individuals to legally document their health care wishes before losing their ability to personally communicate them to family, doctors, and other medical professionals.

There are 2 main types of advance care directives:

  • A living will
  • A durable power of attorney for health care

According to the National Institute on Aging, a living will “is a written document that helps you tell doctors how you want to be treated if you are dying or permanently unconscious and cannot make your own decisions about emergency treatment.” This advance directive becomes effective upon declaration of an individual’s medical incapacitation.

We will discuss the durable power of attorney for health care in more detail below.

What Is A Durable Power Of Attorney (POA) For Health Care?

The durable power of attorney (POA) for health care is just one type of power of attorney document. It is created by a principal who is the person capable of granting a power of attorney for health care. The principal appoints an agent or health care proxy to make healthcare decisions on the principal’s behalf if they should become incapacitated. The health care agent may also carry out the principal’s health-related wishes if instructed. A durable power of attorney for health care remains valid even if the principal becomes incapacitated.

The durable power of attorney for health care is a springing durable power of attorney document meaning it does not take effect immediately. Instead, it only becomes effective upon an individual’s infirmity, illness, or injury-related mental incapacitation. Incapacitation must be proven by the assessment, determination, and written certification of one or two doctors, a licensed psychologist, and an attorney or judge, depending on one’s state regulations.

California was the first state to enact the durable power of attorney for health care in the 1980s when there was only a durable power of attorney for financial matters. Now all states and the District of Columbia allow the designation of a health care proxy, patient advocate, or substitute decision-maker to consent on behalf of a sick and incapacitated patient.

When an individual appoints a trusted party to speak for them through a durable power of attorney for health care, they determine what powers they will grant to their health care agent—and willingly give authority to this chosen person in good faith. Durable power of attorney for health care granted authority and limitations vary by state, however, these powers may include:

  • Accepting, withholding, or refusing care, treatment, and pain management in temporary and permanent situations.
  • Decisions on life-sustaining treatment, end-of-life decisions, and advance directives.
  • Admitting or discharging an individual from hospitals and long-term care facilities such as assisting living facilities (ALFs), nursing homes, continuing care retirement communities (CCRCs).
  • Accessing personal health information such as medical records.
  • Instructions on how to handle a person’s real property and other tangible personal property.

It is important to note that a chosen health care proxy cannot make financial decisions under a durable power of attorney for health care. For financial matters, an individual must create a durable power of attorney for finances.

What Can Happen Without A Durable Power Of Attorney For Health Care?

If an individual becomes incapacitated without a durable power of attorney for health care, a family member may appeal to the court for a legal guardianship (or conservatorship, depending on the individual’s state) to take control of their health care decision-making. Otherwise, the court may step in and appoint a guardian (or conservator) to make medical decisions on an individual’s behalf.

Advantages And Disadvantages Of A Durable Power Of Attorney For Health Care

It is impossible to predict when a crisis may occur, however, if a durable power of attorney for health care document is in place, an individual will have someone they trust to make health decisions on their behalf. However, in the decision-making process, it is important to also consider disadvantages. Below we will consider some of the advantages and disadvantages of establishing a durable power of attorney for health care document.

Advantages

1. Flexibility in appointment choice and granted powers

A court-appointed guardian is not usually able to honor an individual’s care goals and wishes because they will not know the individual. However, with a durable power of attorney for health care, the individual has the ability to appoint someone who knows them and who will come to know their personal care wishes and goals. An individual may:

  • Appoint someone willing to become familiar with their wishes and personal care goals and who is willing to carry them out.
  • Limit the granted powers if they choose.

2. The inclusion of specific instructions

With a durable power of attorney for health care document, an individual may provide specific instructions for their health care proxy. These instructions may include but are not limited to:

  • Life-support treatment choices
  • Other treatment preferences
  • Wishes concerning their quality of life, beliefs and philosophies, death and burial

An individual should take the opportunity to properly communicate these wishes and goals with their chosen health care proxy or health care agent which will assist this individual in making the best medical decisions possible should the need arise.

Disadvantages

1. Inability to anticipate every possible incapacitating event

When creating a durable power of attorney for health care, the principal may provide specific instructions to their health care proxy or agent as noted above. However, it is difficult to anticipate every possible illness, infirmity, or injury. Because of this, it may be more difficult to prepare and provide instructions to prepare for these events. In these circumstances, their appointed agent will be responsible for making the best possible decisions.

2. Chance of potential confusion in health care decision-making

If the principal does not properly communicate with their health care proxy or agent, the proxy or agent will not be in the best position to make decisions in accordance with the principal’s values and beliefs. They may find it difficult to determine what is important to the principal and find it difficult to make decisions in unforeseen circumstances.

Selecting A Proxy For Durable Power Of Attorney For Health Care

Setting up a durable power of attorney for health care as soon as possible is one of the most important things an individual can do if they are concerned about designating someone to make healthcare decisions on their behalf should they become unable to do so. This is important to do when one is of sound mind because an individual cannot execute a valid durable power of attorney for health care and grant powers to a trusted person when they are mentally incapacitated.

When an individual selects a health care proxy or health care agent, they legally designate someone to express health care wishes to family, doctors, and other medical professionals if an illness and incapacitation should affect their ability to communicate. Before completing the durable power of attorney for health care paperwork, an individual should give careful consideration to whom would be an appropriate health care proxy to represent them. It is important to select someone who will respectfully carry out one’s wishes in collaboration with one’s doctor.

Characteristics Of A Health Care Proxy

Before selecting this person, research state requirements and restrictions for information on who can and cannot be a health care proxy. When deciding on a health care proxy or agent, an individual should consider the following qualities:

  • Integrity and honesty - Someone they can trust to honor their wishes and make care and treatment decisions according to the principal’s preferences.
  • Knowledge and education - Someone with a willingness to become knowledgeable about the specifics of their medical situations, treatment options, benefits and risks.
  • Courage - Someone who will make difficult health care decisions in accordance with their wishes despite the possibility of disapprovals and disagreements from others.
  • Assertive communication - Someone who will speak out and advocate for their needs and wishes.
  • Thoughtfulness and consideration - Someone who will patiently listen to and learn their preferences, wishes, values, and beliefs, and take action in accordance with them.

An individual should also consider the following factors:

  • Location and proximity - Someone who lives close enough to travel to the hospital when needed.
  • Availability - Someone who has the availability to take on the responsibility of helping the individual with future health care decision-making if the need should occur.

Other Considerations

After reviewing the qualities and factors above and identifying a person for the durable power of attorney role, an individual should inform the person they have selected. The chosen individual may not want to assume this role for a variety of reasons so another individual may need to be chosen and approached. Some questions to discuss with the person one chooses include:

  • Will they take on this responsibility?
  • Will they respect and carry out all health care wishes as desired?
  • Will they make the best available decisions based on your expressed goals and preferences?

If the person agrees to take on the responsibility of being an individual’s health care agent, they should be prepared to assume this role as soon as possible.

The appointed health care proxy needs to be made aware of the following:

  • The health care agent’s responsibilities and powers.
  • The principal’s values, goals, spiritual, and moral beliefs.
  • The principal’s medical desires for minor and serious illnesses and as well as end-of-life issue.

The principal should also be prepared to answer any questions the proxy may have. The principal wants their health care proxy to know these things well enough to make the decisions they would make, if they were able to communicate.

Before beginning a conversation with a potential health care proxy, an individual may find it helpful to download and read The Conversation Project’s Starter Kit which includes a starter statement for having this discussion with a representative.

It is important to note that these qualities and factors also apply to the process of choosing an alternative or successive health care agent. If an individual chooses an alternate or successor agent, they should also inform them about their decision and determine their willingness to fulfill the obligations of this role.

An individual should also remember to discuss the durable power of attorney for health care paperwork and health care proxy decision with family. An individual will want their family to be aware of their declared wishes and their chosen health care proxy early so they will be well-informed should the document need to be executed at a later date.

Creating The Document

If an individual is legally married, they may assume that their spouse will automatically become their medical power of attorney or health care proxy. An individual may also assume that one of their adult children would automatically become their primary decision-maker if they have adult children or if their spouse was unable to assume this role. Legally, this is true, however, an individual does not know if their health care proxy will run into issues and need proper legal authorization to act on their behalf.

By completing the necessary durable power of attorney for health care documentation, the principal ensures their chosen representative will have a legal right to make health care decisions on their behalf.

There are 2 ways an individual may create a durable power of attorney for health care document:

1. An individual may complete their state’s standard health care proxy form

Some states combine their standard health care proxy and living will forms into a single advance directive form. Whether one or two separate documents, all states allow an individual to name a person as their representative for health care decision-making.

State formalities differ from one to another. But, besides the principal's signature, many states also require the presence and signature of two adult witnesses or a notary. Some require two adult witnesses and a notary public, whereas others require the signature of the principal, the signature of your health care agent, and the signature of two witnesses.

If an individual completes their state’s statutory form, then they will know their durable power of attorney for health care paperwork follows their state’s guidelines and laws.

An individual can usually download these health care proxy forms via the state's:

  • Health department website
  • Bar Association website
  • Attorney General website

They can also download state-specific advance directive forms with instructions from the National Hospice and Palliative Care Organization’s CaringInfo website.

2. An individual may hire an estate planning or elder law attorney to draft up a durable power of attorney for health care document.

An estate planning or elder law attorney can help an individual create an up-to-date durable power of attorney for health care document to represent the individual’s personal situation and needs.

If an individual decides to hire an attorney, they may find the following websites helpful in estate planning or elder law attorney search: National Academy of Elder Law AttorneysNational Association of Estate Planners & CouncilsNational Elder Law FoundationAmerican Academy of Estate Planning Attorneys, and the American Bar Association.

Issues To Address In The Document

A loss of mental capacity, whether temporary or permanent, may happen at any time. If it happens to an individual without a durable power of attorney for health care, then the court may appoint a guardian to handle their health care decision-making and affairs. With a court-appointed guardian, an individual risks the possibility of someone, with no knowledge of their values, beliefs, and wishes, acting on their behalf.

By planning ahead and preparing a durable power of attorney for health care document, an individual may choose someone they know to be their health care proxy or agent. Before choosing a health care proxy and completing the necessary paperwork, an individual should take some time to consider their health care and medical wishes.

Here are 6 questions to reflect on and answer while considering an individual’s wishes and instructions for future care and treatment.   

1. What religious, spiritual, moral, and cultural beliefs should a doctor and other health care professionals respect when delivering care and treatment?

2. What is the individual’s health history?

  • Have they had medical issues in the past? If so, what were they?
  • Are they dealing with health problems or issues right now? Any chronic conditions?
  • Are they taking prescribed or over-the-counter medications? How often?
  • Are they allergic to any drug medications?

3. What kind of life-support treatments would the individual want to receive, if they were in a short-term or permanent comatose state? If they were in a persistent or permanent vegetative state? If they were facing a terminal illness or an end-stage condition?

  • Artificial nutrition and hydration
  • Cardiopulmonary resuscitation (CPR)
  • Mechanical ventilation
  • Dialysis
  • Surgery
  • Antibiotic treatment

4. Would the individual be interested in palliative care to aid in their comfort should they become seriously ill?

  • Pain and nutritional management
  • Emotional and social support
  • Physical, occupational, and integrative therapies

5. If the individual could choose, where would they like to receive care for terminal or end-stage illnesses?

  • In their home
  • In a hospital
  • In a hospice facility
  • In a nursing home
  • In a continuing care community

6. What are the individual’s funeral and burial wishes? Would they like to donate all their organs or only certain organs and tissues, if any? And for what purpose should the donated organs be used for (e.g. transplantation, research, teaching purposes, etc.)?

These are a few starter questions to consider. For further reflection and clarification concerning individual wishes, it may be helpful to explore the American Bar Association’s Toolkit for Health Care Advance Planning (free) and Aging with Dignity’s Five Wishes document ($5.00 cost).

Once an individual is clear about their wishes, they will then provide these instructions to their health care proxy in a durable power of attorney for health care document.

Distributing And Protecting The Document

A durable power of attorney for health care form is a document an individual will want to keep properly stored and protected. After executing the durable power of attorney for health care, an individual should store both the original document and copies in a place where the individual, their health care agent, and family may find them when needed.

Some states have registries for electronically storing and accessing copies of advance healthcare directives such as durable powers of attorney for health care and living wills. To date, these states include:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Maryland
  • Michigan
  • Montana
  • Nevada
  • North Carolina
  • Oklahoma
  • Vermont
  • Virginia
  • Washington

California, Louisiana, and North Carolina charge a filing fee for registration. An individual also has the option of registering this document with the U.S. Living Will Registry for a fee.

Distribution of the durable power of attorney for health care document is also important. An individual should not only tell their doctor, other healthcare providers, their health care proxy, and family members about their durable power of attorney for health care document but also provide them with copies if appropriate.

Revoking The Document

As noted above, as long as an individual is of a sound mind, they may revoke their durable power of attorney for health care form or document at any time. An individual may revoke their durable power of attorney for health care by completing a written declaration with their signature. They may also notarize their revocation document if they choose.

If an individual revokes their durable power of attorney for health care, they should remember to destroy the former original copy and duplicates. They should also inform persons with copies of the old document about the cancellation.

Executing The Document

State laws regulate the execution of the durable power of attorney for health care. Generally though, adults 18 years and older can execute a written durable power of attorney for health care. For proper execution and validation when completing and signing, the principal must have the required mental capacity to:

  • Understand the purpose and importance of a durable power of attorney for health care.
  • Sign the durable power of attorney for health care legal document and formally appoint a health care agent or proxy. If the principal is unable to sign the document, they may designate someone else to sign the document for them in their physical presence.
  • Be consciously aware of the powers granted.

Depending on state requirements, the individual may also appoint a co-agent to act at the same time as the appointed agent, as an alternate, and/or as a successor agent to act if the selected health care agent or proxy cannot or will not act on their behalf if they choose.

If an individual chooses at least one alternate or successive proxy, their family may avoid probate court guardianship (or conservatorship) proceedings should the chosen health care proxy or agent be unwilling or unavailable to fulfill the role under the durable power of attorney for health care when needed.

Upon executing a durable power of attorney for health care, it will remain valid until death. However, the individual may revoke it at any time.

Selecting An Estate Planning Or Elder Law Attorney

It is important to find the right attorney for an individual’s circumstances. After identifying a potential estate planning or elder law attorney, an individual may prepare questions to ask during their first meeting. The following are a few questions that one may want to consider:

Legal Service And Experience

  • How long have you been practicing estate planning law or elder law in this state?
  • Will you handle this case yourself or will someone else handle it? If someone else will handle it, can we meet this person too?
  • How long will it take you to draft up a durable power of attorney for health care for this situation?
  • What is the best way to contact you? Do you respond to your clients in a timely manner?
  • Do you charge an hourly or flat rate for your services? Can you provide an estimate?

Questions About Durable Power Of Attorney For Health Care

  1. Will you draft up a durable power of attorney for health care without other estate planning documents such as a last will and testament and a living will?
  2. Do you suggest the creation of a durable power of attorney for health care for this situation?
  3. Is there a durable power of attorney for health care alternative we should consider?
  4. In your opinion, are there any significant drawbacks of this type of document that we should consider?
  5. Based on our circumstances, what powers and responsibilities should we include for our health care proxy?
  6. What powers should we exclude?
  7. Should we limit any of these powers? Which ones? How do you recommend we limit them?
  8. Can you include a HIPAA release in the durable power of attorney for health care? How should we address aging and long-term care concerns?

The individual should also ask any other questions they might have as well. They should learn as much as they can about the attorney’s services, experience, and document drafting so they will not only choose the right attorney but also get the clarification they need to move forward with the process of appointing a health care proxy or agent.

Cost Of Preparing The Document

The cost of creating a durable power of attorney for health care depends on whether an individual uses their state’s standard health care proxy (or health care agent or health care surrogate or patient advocate) form or hire an attorney to draft the document.

If an individual uses their state’s standard power of attorney form, they can download it online—from their state’s health (and human services or social services) department website, bar association website, or attorney general website—for free. However, they might pay a printing fee if they print the power of attorney form from a public location. They will also pay a notary public fee if they have the document notarized.

If the individual hires an estate planning or elder law attorney, the cost may vary anywhere between $100 to $500 or more depending on ones:

  • Geographical location
  • Chosen attorney’s experience and skills
  • Situation, needs, and goals

Attorneys usually charge hourly or flat rates for their services. If an attorney of interest offers a free consultation, this will give an individual the opportunity to get a price estimate for preparation. An individual can also call for an estimate on this type of service.

Depending on an individual’s income, they may be eligible for free or low-cost legal services for senior citizens and older adults so individuals over 65 years should contact their local bar association for assistance.

Court Guardianship: An Alternative To Durable Power Of Attorney For Health Care

Court guardianship is an alternative to the durable power of attorney for health care. However, it is important to note that in some states, the court may appoint someone—a conservator—to handle health affairs and decision-making under a court conservatorship. In others, however, a court conservatorship appoints a conservator to handle only financial affairs, whereas a court guardianship appoints a guardian to handle only health care matters.

Like a durable power of attorney for health care, a court guardianship results in the appointment of another person to make health decisions for someone who is incapable of making them. Under a guardianship, however, the court-appointed person is known as a legal guardian, while the person with an impaired decision-making capacity is known as a ward.

Unlike the durable power of attorney for health care designation, an individual has no control over who will become their guardian and the powers granted. Instead, a probate court makes these decisions after a declaration of an individual’s incapacity. In most cases where possible, a judge appoints a family member as guardian.

Nearly 1.5 million American older adults were under legal guardianships in 2013. However, a court guardianship comes with a couple drawbacks. First of all, it is time-consuming and costly. There are various fees before and after the appointment. It is also a time-consuming process often requiring court hearings and ongoing paperwork.

Another drawback to the court guardianship is that it is a restrictive alternative and the individual will likely lose their right to control their health care decisions. For this reason, the court first rules out less restrictive forms of decision-making, such as durable powers of attorney for health care before appointing legal guardians.

A court-appointed guardian must always act in the ward’s best interest and receives compensation from the ward’s estate, if there is money available.

FAQs About Durable Power Of Attorney For Health Care

1. How does a durable power of attorney for health care work?

Creating a durable power of attorney for health care is an essential part of planning for potential decision-making incapacitation. The durable power of attorney for health care document allows the principal to appoint a health care proxy when they are still mentally competent so the agent may make health care decisions on their behalf in the future. A chosen health care proxy may only act upon a legal determination of incapacity.

2. Can a principal have more than one health care proxy or medical powers of attorney listed on their durable power of attorney for health care paperwork?

It depends on the principal’s location. In some states, the principal may only list one health care proxy on their durable power of attorney for health care document with the inclusion of an alternate or successive health care proxy if the chosen person cannot fulfill their responsibilities. In other states, a principal may name more than one medical power of attorney to act on their behalf.

3. Does the principal give up their right to make their own health care decisions by appointing a health care proxy?

No. While a principal is mentally competent and of a sound mind, they have the right to make their own health care decisions. Should the individual become unable to make their own decisions, their health care proxy will be able to make decisions on their behalf.

4. What is the difference between a living will and a durable power of attorney for health care?

A living will and a durable power of attorney for health care are the primary types of advance directives, however, they differ in purposes.

When an individual creates a living will, they make known their health care wishes and preferences for emergency and end-of-life care through a written declaration. This declaration will serve as their health care voice should they lose the ability to communicate their choices.

In contrast, when an individual prepares a durable power of attorney for health care document, they appoint someone they trust to handle their medical affairs and make health care decisions on their behalf if they lose the ability to make decisions and communicate their choices.

Some individuals consider a durable POA for health care document to be an alternative to a living will. However, others view these as complementary documents since a living will allows an individual to express their desired choices while the durable POA for health care document allows an individual to designate someone to carry them out.

5. If an older adult has no one to designate as their health care proxy, who will make their medical decisions?

If an older adult does not have anyone they can or want to appoint as their health care proxy, the court will intervene and appoint a public guardian to make health and medical decisions after receiving a filed petition and determining the individual’s incapacity. In some states, the probate court establishes this type of relationship under a public guardianship whereas in others it is under a public conservatorship.