What is a health care power of attorney?

A health care power of attorney names someone to be your health care agent, sometimes referred to as a representative, proxy, or patient advocate. This is a person you choose to: make decisions about your medical treatment and health care if you become seriously injured, terminally ill, or otherwise unable to make decisions regarding your own health care.

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When does it take effect?

A health care power of attorney takes effect when your primary physician determines that you no longer have the ability to make your own health care decisions, such as when you suffer a serious stroke or are in a coma. In some states, your health care power of attorney takes effect when you become disabled under state law or you are unable to speak for yourself.

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What can my health care power of attorney authorize my agent to do?

To the extent permitted by state law, your agent will have the authority to:

• Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose or otherwise treat a physical or mental condition
• Choose or discharge health care providers and institutions (doctors and hospitals, etc.)
• Agree or disagree to diagnostic tests, surgical procedures and medications

In addition, depending on which state you live in, you may be able to authorize your agent to:

• Agree or disagree with providing, withholding, or withdrawal of artificial feeding and fluids and all other forms of health care, including cardiopulmonary resuscitation (CPR)
• After your death, have your organs/tissues donated, authorize an autopsy, and make decisions about what will be done with your body
• Access medical records before and after your death

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Are there any decisions my agent cannot make for me?

Most states do not allow your agent to authorize any of the following:

• Commitment to or placement in a mental health treatment facility
• Convulsive treatment
• Psychosurgery
• Sterilization
• Abortion
• Mercy killing, assisted suicide, or euthanasia

Additionally, most states allow you to describe specific treatment options that you do or do not want in your health care power of attorney, and your agent must respect these directions.

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Is there anyone who cannot act as my agent?

Yes. This will depend on state law, but generally your primary physician or other medical professional who is primarily responsible for your care, an employee of any health care institution where you are receiving care, or an operator or employee of a community or residential care facility where you are receiving care, cannot be your health care agent. There are exceptions in some states, which allow a health care professional or employee to be your agent if he/she is related to you by blood, marriage, adoption, or is your co-worker at the same health care institution or facility.

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Is a health care power of attorney different from a living will?

Yes and no. The emphasis in a health care power of attorney is on designating a person to make your health care decisions in any case of incapacity or when you are unable to speak, which is not limited to life threatening conditions. It may be used in situations involving a temporary or long-term disability.

The emphasis in a living will is on the type of care, or extent of treatment, you wish to receive specifically in life threatening or end of life circumstances, such as whether to continue artificial feeding, etc. However, for the vast majority of states, it is possible to combine a health care power of attorney with a living will in one document, and we have done this wherever possible.

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Can I change my mind? 

Yes. You may revoke your health care power of attorney at any time orally or in writing as long as you make it clear that you intend to revoke it. However, if your intent is not clear, a probate court can be asked to interpret your intent, therefore, a written revocation is the best way to make a revocation.

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Do I need a health care power of attorney? There is a chance in your lifetime that you may become seriously injured, terminally ill, or otherwise unable to make decisions regarding your own 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. Back to the top

When does my health care power of attorney expire? It depends on what you have written in your health care power of attorney. If the document does not contain an expiration date, it will not terminate unless you revoke the document, you sign a new health care power of attorney, or you die. If your health care power of attorney states that it will expire on a certain date, then the document will expire on that date. If you recover from incapacity at any time, in other words, you regain the ability to make your own health care decisions; your health care power of attorney will normally cease to be effective at that time. Back to the top

What rights to your medical records does your agent have? In the process of making health care decisions your agent may request, review, and receive information about your physical or mental health, including medical and hospital records. The agent may also authorize a release required to obtain the information; and consent to the disclosure of this information. Back to the top

What should I consider when choosing an agent? Pick someone who knows you very well, cares about you, and can make difficult decisions. Select someone who would be able to stand up for you and follow your wishes. A spouse or family member may or may not be the best choice. Whomever you choose, talk over your wishes with them, your family members, and your physician. If you have children, speak with all of them at the same time. Back to the top

Can there be more than one agent? 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 designated agent if the designated agent is unable or unwilling to act. However, you cannot have two people serving as your health care agent together. Only one person can be your agent at any given time. Back to the top

Will paramedics follow the directions outlined in my health care power of attorney? The problem is that under normal circumstances, EMS personnel will have no knowledge of a health care power of attorney for a person in their care. The law requires emergency medical services personnel to treat and transport individuals experiencing a medical crisis; therefore EMS personnel will attempt to resuscitate aggressively unless a doctor at the scene directs otherwise. Living wills and health care powers of attorney are not effective to stop that response if a friend or family member calls 911 during a medical crisis outside a hospital. When 911 is called, the patient will be treated and transported to a hospital. If that is not what the family or loved one wants, 911 should not be called. Back to the top

What happens if I get a divorce? If you name your spouse as your health care agent, a lawsuit for a divorce, an annulment, or separation will automatically suspend the health care power of attorney, and a judgment of divorce, annulment or separate maintenance will revoke it. Back to the top

What happens if a health care provider learns that my health care power of attorney has been revoked? When a health care provider is informed of, or provided with, a revocation of your health care power of attorney, the revocation is recorded in your medical record and notice is given to your agent. After that, your health care agent will no longer be consulted. Back to the top

How old do I have to be to prepare a health care power of attorney? You must be at least eighteen years old, of sound mind, and not subject to duress, fraud, or undue influence in executing the power of attorney. Back to the top

Do I need witnesses?

In most states, two witnesses must sign the health care power of attorney, at least one of whom must not be:

• The agent;
• Related to you by blood or marriage;
• Your attending physician or an employee of your attending physician;
• An heir of your estate;
• A creditor having a claim against your estate;
• An employee of a health care facility in which you are a patient; or

An officer, director, partner, or business office employee of a health care facility (or of any parent organization) in which you are receiving treatment.

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