No one wants to think about the possibilities of a car accident, incapacitation, injuries, or other issues that could leave us in need of deep medical care. But the possibilities exist, and we have families, so we’ve got to think about such things.

In the world we live in, it’s important to know your legal options so that your family is prepared for any situation. Today’s society has an abundance of bureaucracy and red tape which means that what you don’t know can and will probably hurt you.

Taking responsibility means being aware of what legal documents can affect your day to day living as well as in the long term.

If the unthinkable did happen, and you became incapacitated somehow, would your family know what your wishes would be regarding your long-term healthcare desires? If not, it’s time to consider appointing a health care power of attorney.


Below, we’ll explain the basics of health care power of attorney, and why you may want to consider establishing this important “what if” piece of paperwork for your family. But before we continue this discussion, it’s important to make a disclaimer.

The law is a complicated and varied beast that looks different in each state and territory around the country and world. As you read this article, it’s important to remember that this is only a partial compilation of the information available on health care power of attorneys.

This article is designed as a launching pad for your own research into this area of law, not give legal advice.

If you are seriously considering getting a health care power of attorney put into action, make sure to consult with a lawyer so that you have a full understanding of the legal document before you sign it.

What is Power of Attorney?

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A power of attorney is a legal document that is agreed upon between two parties. The purpose behind this type of document is to give authority for one or two parties to act for, and represent the other party in private, legal, and business matters.

In the document, the person who is giving the authority to another is known as the donor, principal, or grantor.

The one who is receiving the authority to act is referred to as the agent, or attorney-in-fact.

As each document is drafted by a case by case scenario, it is vitally important to know what authority and powers are being granted to the attorney in each circumstance where power is being given.

It’s much easier to make sure that there are no unintentional loopholes in your power of attorney if you consult a lawyer and have him or her draw up the power of attorney paperwork.

How Does a Power of Attorney Work?

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Despite the variance in law from state to state, one commonality in all instances of seeking a power of attorney is that the document can only be issued when the donor has the necessary mental capacity to decide what they want and sign for it.

If the potential donor lacks the cognitive ability necessary to meet this requirement, then his power cannot be given to an agent.

In situations in which someone is incapacitated without a power of attorney, the only recourse by which a person can legally act on their behalf is by going to court and getting a judge to establish them as a conservator or guardian over the incapacitated party.

Another thing to bear in mind is that even if a person has a power of attorney in place before he is incapacitated, only certain specific powers will stay in effect after that person becomes incapacitated.

The only time a power of attorney will survive the donor becoming incapacitated or deceased is if the donor signed a durable power of attorney.

With a durable power of attorney, the authority is granted to the agent upon the donor becoming incapacitated.

The point at which the power of attorney goes into power, and is executed, is when it has been signed and dated by the donor.

Depending on which state you live in, there may be a need to get the power of attorney witnessed, notarized, or both. 

Powers of attorney can have an impact of everyday parts of like in multiple areas, including in healthcare, like we’re talking about today, so it’s important to take this seriously and get your document both signed and notarized, even in states where these are not required.

If an issue were ever to arise in court, that witness and notarization could make all the difference in your wishes being carried out by who you trust, as well as how those wishes are taken care of.

Health Care Power of Attorney

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Now that we have covered the basics of power of attorney, let’s move on to talking about the health care power of attorney.

The reason that these types of documents came into being was because of the 1996 Health Insurance Portability and Accountability Act – HIPAA. This act was passed to help ensure that a patient’s privacy was respected.

Unfortunately, one side effect of the HIPAA Act is that it’s become difficult for families to assist their loved ones through a major illness, and end of life circumstances.

It’s become necessary for everyone to take the time to figure out what documents and decisions would best reflect their needs and how it may help their loved ones if these tragedies were to occur.

The two main documents which are concerned with these events are the health care power of attorney and the health care directive – also called an Advanced Medical Directive or Living Will.  

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Health Care Power of Attorney

A health care power of attorney grants the agent authority for making health care decisions on the behalf of the donor. Decisions included in this power of attorney range from life support to end of life care for the donor.

In general, the donor is able to make changes to the document in order to provide more precise directions as circumstances may change. This is to ensure that all end of life decisions can be made with the most current information given by the donor.

The chosen power of attorney, or agent, is given the healthcare decisions only once a physician has declared the donor incapable of making decisions for herself, whatever the cause.

This power includes the ability to access all medical records for the donor that would normally be unavailable due to the HIPAA Act. The agent may also need to decide on administering or withdrawing nutrition and hydration, if the donor is found to be terminal or permanently unconscious and living solely on life support.

Health Care Directive or Living Will

As noted above, a health care directive is very much like a limited version of the health care power of attorney. The health care directive expresses very specific medical treatment in a specific circumstance.

With a health care directive, the document is signed between the donor and a health care provider, not a second party, like a family member or business partner. The normal use for this document is for those who have a terminal condition or are left in a permanent unconscious condition.

It should be noted then when this document is properly prepared, then the donor’s physician has a legal obligation to fulfill the health care directive to the letter.

If, however, the doctor is unable to honor the document for any reason, then the doctor is legally obligated to transfer the donor’s care to a doctor who will be capable of fulfilling the directive.

Choosing your Agent

After deciding that you need to have a health care power of attorney, it is important to choose the best person to be your acting agent.

Certain requirements to look in for an agent:

  • The agent must be over 18 years of age.
  • The agent must be mentally competent and sound.
  • Your healthcare provider may not act as your agent.
  • The agent must be trustworthy and have your best interests in mind.
  • The agent should be someone who isn’t easily intimidated by doctors and medical professionals.
  • The agent should be a person who is good at making a strong stand in order to follow your wishes.

Finding the right person may be difficult, but it is well-worth taking the time to think through the people you know and trust and determine who would be best suited to the role, if the need ever arose.

Finding Your Health Care Power of Attorney

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While it is difficult and unpleasant to think about, having a health care power of attorney in place long before any issues may arise could save you and your family a lot of heartache in the end. Be willing to ask yourself the tough questions that find the answers to who you trust, and what you’d want to happen if you were to somehow become incapacitated.

Once you have decided on your health care power of attorney, be sure to seek the assistance of a lawyer to draft up the papers properly. And remember to get the paperwork both witnessed and notarized for added protection.

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