Healthcare Power Of Attorney: Questions & Answers

Q. What is a Healthcare Power of Attorney (HCPA)?
A. A HCPA is a legal document that allows you (the "principal") to appoint another individual (the "attorney-in-fact" or "agent") to make medical and/or mental health decisions for you if you should become temporarily or permanently unable to make those decisions yourself. The person you choose as your attorney-in-fact does not have to be a lawyer.

Q. Who can I appoint to be my Agent?
A. You can appoint almost any adult to be your agent. You should select a person(s) knowledgeable about your wishes, values, religious beliefs, in whom you have trust and confidence and who knows how you feel about healthcare. You should discuss the matter with the person(s) you have chosen and make sure that they understand and agree to accept the responsibility.

You can select a member of your family, such as your spouse, child, brother or sister, or a close friend. If you select your spouse, and the marriage is dissolved or annulled, the appointment of your spouse as your agent is revoked.

The only person who cannot be appointed as your agent is any person who is providing you with healthcare and whom you are paying for that healthcare.

Q. When does the HCPA take effect?
A. The HCPA only becomes effective when you are temporarily or permanently unable to make your own healthcare decisions, and your agent consents to start making those decisions. Your agent will begin making decisions after your doctors have decided that you are no longer able to make them. Remember, as long as you are able to make treatment decisions, you have the right to do so.

Q. What decisions can my Agent make?
A. Unless you limit his/her authority in the HCPA, your agent will be able to make almost every treatment decision in accordance with accepted medical practice that you could make, if you were able to do so. If your wishes are not known or cannot be determined, your agent has the duty to act in your best interest in the performance of his/her duties. These decisions can include authorizing, refusing or withdrawing treatment, even if it means that you will die. As you can see, the appointment of an agent is a very serious decision on your part.

Q. Can there be more than one Agent?
A. Yes. While you are not required to do so, you may designate alternates who may also act for you, if your primary agent is unavailable, unable or unwilling to act. Your alternates have the same decision-making powers as the primary agent.

Q. Can I appoint more than one person to share the responsibility of being my Agent?
A. You should appoint only one person to be your primary agent. Any others that you want to be involved with your healthcare decisions should be appointed as your alternates. If two or more people are given equal authority and they disagree on a healthcare decision, one of the most important purposes of the HCPA – to clearly identify who has the authority to speak for you – will be defeated. If you are afraid of offending people close to you by choosing one over another to be your agent, ask them to decide among themselves who will be your primary agent and select the others as alternates.

Q. Can my Agent be legally liable for decisions made on my behalf?
A. No. Your healthcare agent or your alternate agents cannot be held liable for treatment decisions made in good faith on your behalf. Also, he or she cannot be held liable for costs incurred for your care just because he or she is your agent.

Q. Can my Agent resign?
A. Yes. Your agent and your alternates can resign at any time by giving written notice to you, your doctor or the hospital or nursing home where you are receiving care.

Q. Does the HCPA have to be signed and witnessed?
A. Yes, you must sign (or have someone sign the document in your presence and at your direction, if you are unable to sign) and date the document. Then it must be witnessed by two qualified adults and notarized.

The only people who cannot witness your signature are: 1) Any person who is related to you or your spouse by blood or marriage within the third degree (grandparents, parents, children or grandchildren); 2) Any person who is entitled to any portion of your estate; 3) Your attending physician or your mental health treatment provider; 4) An employee of your attending physician or mental health treatment provider; 5) An employee of a healthcare facility, nursing home or group-care home in which you are a patient or residing; or 6) Any person who has a claim against any portion of your estate.

Q. How is the HCPA different from the Living Will?
A. A living will only applies if you are terminally ill or if you are in a persistent vegetative state, and unless you write in other specific instructions, it only tells your doctor what you do not want.

The HCPA allows you to appoint someone to make healthcare decisions for you if you cannot make them. It covers all healthcare situations in which you are incapable of making decisions for yourself. It also allows you to give specific instructions to your agent about the type of care you want to receive.

The HCPA allows your agent to respond to medical situations that you might not have anticipated and to make decisions for you with knowledge of your values and wishes.

Since the HCPA is more flexible, it is the advance directive most people choose. Some people, however, do not have someone whom they trust or who knows their values and preferences. These people should consider creating a living will.