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Health Care Power of Attorney

A health care power of attorney is a legal document that allows you to name a person to act as your agent to make tough medical decisions for you, when you are not able to make decisions for yourself.  If you experience a sudden medical emergency and do not have a health care power of attorney in place, your family will be facing unnecessary additional stress, expense and sometimes even litigation.

One major misconception is that married couples can make medical decisions for each other without documentation in place. Without a health care power of attorney, no one can make medical decisions for you, except a legal guardian.

Becoming a legal guardian for your spouse or loved one requires a request (a petition) to the probate court for the appointment. A court hearing is required. There are filing fees, guardian ad litem fees; and unless there is truly a life and death decision to be made, the appointment will not happen for approximately a month after the petition is filed. Furthermore, the request is made in public court. In court, you must prove to the judge that a guardianship is needed and explain why you are the best person for the appointment. Too often, adult children struggle and even litigate over the position to be appointed as guardian. Ultimately, the judge decides who is appointed as the guardian as well as the breadth of the powers given to the guardian.

All of the cost, stress, delay, inconvenience and loss of control can be easily avoided by taking a little time to plan. When preparing a health care power of attorney, careful thought must be given in deciding the appointment of primary, secondary and alternate agents. Trustworthiness, geographic proximity, integrity and willingness to serve are all factors to consider. Additionally, there are specific requirements of a patient advocate designation and the persons permitted to witness the execution of the document cannot include close family members or care providers.

Patient Advocate: A patient advocate is an individual designated to exercise powers concerning another person's care, custody, and medical or mental health treatment on behalf of that person.

HIPPA: Pursuant to HIPAA, you specifically authorize the Agent and HIPAA representative to request, receive and review any information regarding your physical and mental health.

End of Life Decisions: The designation may include “living will” provisions which include the principal's wishes regarding the withdrawal or withholding of life-extending care to allow the principal's death.

  • Competent people have the right to refuse medical treatment under the Due Process Clause
  • Family members of Incompetent people must provide CLEAR and CONVINCING evidence of end of life decisions.

Mental Health: A patient may waive his or her right to revoke the patient advocate designation as to the power to make mental health treatment decisions, and if such a waiver is made, his or her ability to revoke as to certain treatment will be delayed for 30 days after the patient communicates his or her intent to revoke.

Anatomical Gifts: The document must state that this authority remains exercisable after death.

The guidance you receive from a GLFPE attorney will reassure you that when tough decisions need to be made, loved ones will not spend precious time and resources in court. Instead, you will have decided who your agents will be and they already will have had conversations with you and will be ready to focus their attention and time on you and your care.