Why You Need a Medical Power of Attorney

There are over 20,000 people in our country right now (Dec. 2020) fighting for their lives against covid in the intensive care unit of a hospital. (1) These are people who were most likely expecting to spend their holidays doing something meaningful with family or other loved ones.

With the increase in illness and deaths from covid in our state the last few weeks, we now have a new curfew and stronger laws in place about wearing masks, but have we considered what kinds of healthcare choices will be made by others if we end up in intensive care ourselves?

Have you planned for the possibility that you might end up in the hospital unable to make your own decisions?

Before time gets away from you, make sure that your plans are in order should you need to be hospitalized. There is one document in particular that can help you and your family if you grow ill and are unable to make decisions for yourself. This all important document is called a Medical Power of Attorney (Durable Power of Attorney for Healthcare).

A medical power of attorney is a type of advance directive that you can draw up with an attorney to make medical decisions for yourself should you become incapacitated or incompetent. In your medical power of attorney, you also appoint an agent to carry out your wishes and make any other healthcare decisions for you. Let’s look at what a medical POA is, why you need one, and how it works.

A Living Will is NOT a Medical Power of Attorney

If you are a senior citizen, it is possible that you have already drawn up a type of advance directive called a living will. This is a document often used to state your wishes for end of life treatments in certain situations. This document may include “do not resuscitate” orders. However it may not cover other types of treatment that you may wish to exclude or include if you are hospitalized for covid. It also does not appoint an agent to make your healthcare decisions.

Medical Power of Attorney

A durable power of attorney for healthcare, also called a medical power of attorney, is an extensive document laying out your healthcare directives and also giving control of all of your other medical decisions to someone else. It is enacted at a time period that you specify in the POA and can include your own desires for the types of care listed:

Dialysis
Ventilators
Do not resuscitate orders
IV hydration or tube feeding
Palliative Care (treatment for pain, nausea, etc)
Any other type of healthcare treatment

A medical power of attorney is probably the most important estate planning tool to draw up. If you become unable to make decisions, this one document can guarantee that there will be no need for court battles to determine your healthcare.

Courts Appoint Guardians

If you are declared incompetent or incapacitated, a court will determine who is declared your guardian unless you have a medical power of attorney. With a medical POA, you get to declare an agent to represent your own medical choices and also make other decisions about your healthcare.

Who Will the Court Appoint?

If you are married, you could end up with your spouse as your guardian and in complete charge of your care. If your marriage is not great, what would that look like for you? What about a sibling you are estranged from? A cousin you’ve always secretly not trusted?

The problem is that you just don’t know who the court will end up appointing. With a Medical Power of Attorney, you appoint an agent. Your life, your choice of care.

Will the Court Hinder the Guardian?

The court also exercises quite a bit of authority in the decisions that your guardian can make once appointed, which can slow healthcare decisions and cause the guardian quite a bit of grief in paperwork and appeals to the court.

Again, if you have a medical power of attorney, you appoint the agent. The court is not involved. Your care is determined by the directives in your medical POA, not by a judge in a courtroom who may or may not agree with your desires or with the desires of a guardian.

Ethical Dilemmas

Many of us remember the case of Terry Schiavo who, in 1990 at 27 years old, began a 15 year journey in a persistent vegetative state. Her legal guardian, husband Michael Schiavo, sought to legally remove nutrition and hydration from her. The court agreed with him, but her parents fought the decision through legal channels.

Eventually, the governor ruled that nutrition and hydration measures could be removed, but the parents continued to fight for her rights and the case went to the FL supreme court where the judge set a date of March 18, 2005 for the withdrawal of nutrition and hydration. Teresa Schiavo died March 31, 2005.

Whether you believe that you personally would want hydration and nutrition removed in this situation is a decision that you have the right to make.

However, if you wait until you are declared incompetent or incapacitated, you have waited too long to make your decision. Instead, the court or an appointed guardian will choose for you. If you don’t have an advanced medical directive such as a living will or a medical POA, you lose any ability to make decisions for yourself should something unexpected happen.

What Medical Decisions Does a Medical POA Cover?

A medical POA is designed to let the person you choose (your agent) make decisions about your healthcare as if they are actually you. This means that your agent can make any and all healthcare decisions that you have not already written out. They cannot, as your agent, go against your expressed healthcare directives declared in your medical POA.

A medical POA can cover your desires for all of the procedures that a living will covers and also any other types of healthcare decisions you would like to cover.

When Does a Medical POA Go Into Effect?

The language of the POA can vary depending on what you want it used for. You can have it take effect immediately if you have been diagnosed with Alzheimer’s or Dementia or some other life-altering healthcare issue and want to go ahead and give the right to make decisions over to your agent.

Alternatively, you can specify that the power of attorney does not go into effect unless a doctor certifies that you have become incompetent or incapacitated. This is called a “springing” durable power of attorney for healthcare and it allows you to keep control over your affairs unless or until you become incapacitated or incompetent.

How Do I Choose Someone to Act as my Medical POA?

The person you choose should be someone that you would trust with your life right now and in the future. You should also rethink your medical POA every year and update if needed. Your agent needs to be capable of acting in your best interests while also honoring what you would have wanted and paying careful attention to the medical directives stated in your medical POA.

How Do I Ensure that My Wishes are Followed?

If you have appointed an agent as your Medical POA, they must follow your healthcare directives whether or not they agree with those views.

You can state in the medical POA that you would want no tube feeding and the agent cannot overturn your desires (unless they could prove that you were incompetent or coerced when you first signed your Medical POA). However, in any areas you did not specify, where a decision must be made, they can make the decision for you.

Get Started Today

Ensure that your medical desires are carried out today by getting in touch with an attorney to draw up your medical power of attorney. Don’t let another day go by not knowing who will care for you if the unexpected happens and you are unable to make decisions for yourself. None of us know what the future holds. However, we can know that if we don’t make a plan for ourselves, sooner or later, someone else will. With the pandemic raging, now is the time to act.