Healthcare Power of Attorney FAQ

A Healthcare Power of Attorney is a basic estate planning document that is helpful to have in the event of your incapacity. This document provides answers to some frequently asked questions about a Healthcare Power of Attorney and the role it serves in your estate plan.

What is a Healthcare Power of Attorney?

A Healthcare Power of Attorney is a legal document that confers upon another person the power to make medical decisions for you in the event you are unable to make those decisions for yourself. The person to whom the power is granted is called your healthcare agent or healthcare proxy.

When does a Healthcare Power of Attorney go into effect?

A Healthcare Power of Attorney goes into effect only if your attending physician determines:

  • You are unable to understand the benefits, risks, and alternatives involved in a specific proposed healthcare decision;
  • You are unable to make that healthcare decision on your own behalf; or
  • You are unable to communicate that healthcare decision to any other person.

What are the benefits of a Healthcare Power of Attorney?

A Healthcare Power of Attorney ensures that the person YOU choose makes medical decisions for you in the event of your incapacity. It can also convey your wishes with respect to procedures that would artificially prolong your life if you have a terminal condition or are in a permanent vegetative state. Expressing your wishes in writing can alleviate some of the burden your loved ones will bear when faced with a decision about your end-of-life care.

What happens if I don’t have a Healthcare Power of Attorney?

In the absence of a Healthcare Power of Attorney, a family member may be designated to act as your healthcare agent; however, the person designated may not be the one you would have chosen yourself. If family members are in disagreement with respect to your care, lengthy and emotionally-difficult disputes can arise. In the worst case scenario, what medical treatment you receive can end up in the hands of a court, resulting in bitter fights among your loved ones.

In the case of Teri Schiavo, a young Florida woman who suffered from severe brain damage after going into cardiac arrest, a failure to plan ahead had disastrous consequences. After Ms. Shiavo had been in a vegetative state for eight years, her husband requested that her feeding tube be removed. Ms. Shiavo’s parents opposed the request, resulting in a court battle that went all the way to the Supreme Court and attracted widespread media attention. Had Ms. Schiavo executed a healthcare power of attorney, it is likely that such a public and protracted battle would have been avoided.

Whom should I designate as my healthcare agent?

You should designate as your healthcare agent someone who would respect your wishes and make decisions about your care similar to those you would make for yourself. You may also want to consider the person’s geographic proximity to where you live. It may be difficult for a son or daughter who lives in California to keep abreast of and make appropriate decisions for a parent who lives on the east cost. You should name at least one alternate agent in case your first choice is unavailable to serve.

Who should execute a Healthcare Power of Attorney?

Everyone should have a Healthcare Power of Attorney. Unfortunately, all of us are vulnerable to misfortune at any age, whether it be an auto accident or an unexpected illness. If something happened to you tomorrow, you would want to know that your care was in the hands of someone you trust and that your loved ones would be spared unnecessary emotional turmoil from not knowing what treatment you would have wanted.

What if I change my mind about my Healthcare Power of Attorney?

You can revoke your Healthcare Power of Attorney at any time you have the capacity to do so. If you name your spouse and subsequently divorce, the healthcare power of attorney to that person is automatically null and void. Regardless of your mental capacity, you can override any decision by your agent that would withhold or withdraw life-sustaining treatment by personally informing your physician.

What is the difference between a Living Will and a Healthcare Power of Attorney?

A living will is both more definitive and less flexible than a healthcare power of attorney. A Healthcare Power of Attorney designates an individual to make medical decisions on your behalf. A living will provides specific instructions for your medical to provide or withdraw life-prolonging treatment under certain circumstances. The drawback of a living will is that it fails to provide for flexibility in decision making in response to particular circumstances. Combining the Healthcare Power of Attorney with guidance about your wishes for treatment is a way to express your desires to your agent while allowing for some flexibility.