Estate Attorney
A durable power of attorney for health care is a legal document wherein you designate someone else, called your health care agent, health care proxy, or health care attorney-in-fact, to make medical decisions for you if you can’t make your wishes known to your physicians and other health care professions yourself. What makes this power of attorney durable is the fact that, unlike a general power of attorney, it stays in effect if and when you become incapacitated.
If you already have a living will or are creating one at the same time as you create your durable power of attorney for health care, be aware that your agent can’t override the wishes you expressed in your living will. He or she can, however, supplement it if a situation arises that you failed to anticipate in your living will.
When a Durable Power of Attorney Begins and Ends
Your durable power of attorney can go into effect as soon as you sign it. Alternatively, you can state in it that it becomes effective only when, for instance, two physicians certify that you are unable to make or communicate medical decisions due to illness or other incapacities.
It can end under a variety of circumstances, including the following:
- You revoke it
- You supersede it with a new durable power of attorney designating a different attorney-in-fact
- A court declares it null and void, for instance, if it names your spouse as your attorney-in-fact, but then you and he or she get a divorce
- You die, unless it specifies that your attorney-in-fact can make limited decisions after your death, such as regarding an autopsy, donation of your organs, disposal of your body, etc.
Choosing Your Attorney-in-Fact
You need to seriously consider who you will appoint as your attorney-in-fact. Remember, he or she will be making medical decisions for you when you can’t. You, therefore, need to make sure that you appoint someone who not only knows your wishes regarding medical care and treatment but also will follow those wishes even if medical personnel or family members disagree with them.
Also, remember that your durable power of attorney for health care does not require your designated attorney-in-fact to act as such. He or she always has the choice to decline. Consequently, your best strategy consists of naming an alternate or secondary attorney-in-fact to act in the event your primary choice won’t act or can’t do so because of his or her own illness or incapacity.
Need for Legal Advice
Different states have different power of attorney laws. You would therefore do well to consult an estate attorney to better understand your local laws and bring clarity to your unique circumstance.