A health care power of attorney is a document which grants another person the power to make medical decisions for you when you no longer have the ability to make your own informed decisions.
It also is called a health care proxy, a medical power of attorney or a health care surrogate. It should have HIPAA-compliant language, which authorizes your agent to review your medical information and even to discuss your protected health information with your health care providers.
A health care power of attorney also may include language for an advance medical directive, which gives instruction for end of life decision-making. That is commonly referred to as a “living will” and is your legal right to reject medical treatment and accept the consequences of that refusal. The advance medical directive may include language regarding feeding tubes, the number of doctors required to determine the probability of recovery and pain management.
A health care power of attorney is an important document, but generally does not empower another person until you become unable to make your own informed medical decisions. Unlike a general durable power of attorney, which enables another person to merely act in conjunction with you to handle your legal and financial affairs, so long as you have the ability to understand your medical conditions and your options, you are the sole person making the decisions.
Of course, you may choose to confide in loved ones and to consider their advice, but ultimately the decision rests with you.
A guardianship is completely different than either of these power of attorney documents. A guardian can only be appointed for you if you are found by a jury or judge to be wholly or partially disabled in such a way that prevents you from being able to effectively manage your own finances or health.
The appointment of a guardian effectively strips you of your rights to make decisions for yourself and inserts a court-appointed individual as your legal fiduciary – the personally legally responsible for you.
A guardianship also is different because there is a different record-keeping requirement. Although a power of attorney agent is required to keep careful records of his or her activities on your behalf, those records usually are not reported to anyone other than to the grantor of the power, and only upon their request. A guardian, on the other hand, as a court-appointed representative, is responsible for reporting to the court for action taken as guardian.
Because power of attorney documents are voluntary, to create these important documents, the individual must have mental capacity to understand what he or she is signing. This can become particularly difficult, and often painful, for loved ones of those with severe dementia or other mental disabilities.
The reason they need the document may be the same reason they are unable to obtain it. Although the individual may clearly need a representative, if they are unable to execute legal documents, they are not able to obtain a new power of attorney.
If someone has lost capacity to execute legal documents and has no power of attorney in place or has a power of attorney that is no longer usable (for example, if the named agents are deceased), a guardianship proceeding may be the only recourse.
Waiting to execute a health care power of attorney is risky and ultimately could lead to a guardianship proceeding instead. Planning in advance for the possibility of incapacity is the best way to ensure the people you trust are the people who making decisions for you.