MEDICAL POWER OF ATTORNEY – AN ADVANCE MEDICAL DIRECTIVE
By Ronald Ward, Jr., Ward Law Firm, LIVING WELL Magazine
One day, a loved one may ask you to make medical decisions on their behalf if they are unable to do so. Although you may have heard of a medical power of attorney, you may not know what it is really about. Unlike a durable power of attorney that would grant you authority to make financial decisions on their behalf, a medical power of attorney would grant you broad authority to make medical decisions on their behalf.
A medical power of attorney is also known as a health care power of attorney or a health care proxy. It is a type of advance medical directive. Another type of advance medical directive is a living will. The living will is the directive that declares a person’s end of life decisions.
On the other hand, the medical power of attorney is an advance directive that appoints another person – an agent – to make medical decisions if the person signing the directive is unable to do so. The person signing the directive – the principal – can also appoint an alternate agent if their first choice is unable or unwilling to act.
Like a general power of attorney, the medical power of attorney is an authentic act in Louisiana, which means that the directive must be signed in the presence of two witnesses and before a notary public.
As with most estate planning matters, medical powers of attorney are best addressed before an event that triggers its need. For example, if someone suffers a heart attack or some other health crisis that prompts an unexpected hospital visit, then the person may not be able to sign the directive. The same holds true for unexpected admissions into long-term health care facilities.
Many hospitals and long-term health care facilities do not allow their employees to act as witnesses on a medical power of attorney – whether or not it is signed during a crisis.
So what triggers the medical power of attorney? The directive can become effective if the attending physician determines that the person lacks capacity to make their own health care decisions.
The agent is obligated to make the health care decisions for the principal in accordance with the instructions in the medical power of attorney and any other wishes, if made known to the agent. The principal signing a medical power of attorney may consider having a discussion with his or her agent about their medical wishes. An agent appointed through a medical power of attorney is generally someone well acquainted with the principal. As a result, the agent often knows the principal’s wants and desires with life in general. But that is not always the case with respect to medical decisions. For that reason, both the principal and agent should benefit from a full discussion about the principal’s desires for health care treatment.
Unless limited by the language of the directive, the agent can consent to or refuse any treatment, service or procedure to maintain, diagnose, or otherwise affect a mental or physical condition – unless they pertain to end of life matters. The agent can also select or discharge health care providers and health care institutions.
As long as the principal is not in a terminal condition or in a permanently unconscious state, the agent can generally make the health care conditions. If the person is in a terminal condition or in a permanently unconscious state, then the living will would control those end of life decisions.
Many factors influence a principal’s consideration of an agent in a medical power of attorney. One factor is the agent’s location. A child or sibling, who lives in a distant city, may have very similar values or personalities, but their location may make their appointment impractical. Another influencing factor could be religious beliefs. A principal with strong religious beliefs may consider whether their agent would honor the principal’s faith.
The person making the medical power of attorney should consider sharing copies of the document with their health care provider and agent.
A medical power of attorney is an advance directive that can facilitate health care decisions by someone trusted to act as agent for the principal, and are a good part of anyone’s estate plan.
Ronald Ward, Jr. practices law in the areas of succession, estate planning, real estate, and business formations with his wife, Alycia, in Mandeville, Louisiana. He is a partner in The Ward Law Firm, L.L.C. (www.successionlawyer.com). He and his wife own Landmark Title Group, L.L.C. (www.landmarktitlegroup.com). Mr. Ward is licensed to practice law in Louisiana, Mississippi and Texas, and can be reached at 985-624-5678.
