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VOL. 133 | NO. 146 | Wednesday, July 25, 2018

Choose Health Care Power of Attorney Carefully

By Jennifer L. Sneed

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Jennifer L. Sneed

In June’s article, “Putting the ‘Power’ in Power of Attorney,” I discussed several benefits of having a general durable power of attorney. In this month’s article, I highlight the importance of what arguably is the most important estate planning tool – the durable health care power of attorney. 

An estate planning power of attorney (“POA”) is the written authority one legally competent adult (the “principal”) grants to another (the “attorney-in-fact” or “agent”) appointing the agent to make decisions for the principal if the principal is incapacitated. 

While a general POA is used to grant business decision-making authority, a health care POA (“H-POA”) governs health and medical decision-making authority. General POAs and H-POAs are similar in that you can tailor them to provide your agent with very broad or limited acting authority. But unlike a general POA, an H-POA can be drafted to retain its effect after you pass away, making it, quite literally, a matter of life and death. 

The greatest benefit of an H-POA is the ability to predetermine your wishes regarding a broad range of health and medical decisions. Your H-POA can address your decision to accept or reject certain treatments, surgeries, medications, resuscitation and life support. Your H-POA may also address autopsies; organ donations; and donating your body to science, medicine or education. 

Additionally, your H-POA will address your agent’s authority to access and disclose your medical records. Understandably, precision and conciseness in the terms of an H-POA can be critical in a health emergency, so your H-POA should be drafted by an experienced attorney, and should be drafted as a document independent of any other POA you may have.

You always retain the right to revoke your H-POA, and you may do so in several ways. You may revoke your H-POA verbally or in writing by notifying either your agent or your health care provider of your decision. You may also choose to draft a new H-POA, which revokes any previously existing H-POA. No matter what manner of revocation you choose, it is wise to formally inform both your agent and health care provider in writing to reduce the likelihood of any later confusion or miscommunication. 

Your H-POA agent, like your general POA agent, will likely hold a significant amount of power to make major, binding life decisions on your behalf, and is legally bound to act in accordance with your wishes. 

Subject to the limitations you include in your H-POA document, your agent’s decisions will generally supersede those of everyone except you, including your spouse, next of kin and doctor. It is therefore very important to carefully choose your agent to reduce the risk of abuse. Nevertheless, if you competently elect to receive lifesaving or life-preserving health care, your agent cannot require your doctor to withhold or withdraw such care. 

An H-POA is a remarkable estate planning tool that, when intelligently drafted, enables you to maintain autonomy over your body if you become incapacitated, and even after you die. Continuing in that vein, in August’s article I will discuss the value of executing a last will and testament.

These articles are purely informational and do not constitute legal advice. As with all legal issues, please consult your attorney when determining your estate planning needs. 

Jennifer L. Sneed is an attorney with Bourland, Heflin, Alvarez, Minor & Matthews PLC.

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