A power of attorney is an instrument under which another person (the agent) is authorized to act on behalf of the person issuing the document (the principal). It is a legal document that can be used in a court of law. In medical cases, it is called a medical power of attorney.
What Is a Medical Power of Attorney?
Also known as the health care power of attorney, it allows a person to choose a representative (agent) who will make decisions relating to her medical treatment in case she becomes incapable of deciding for herself. It is an agreement between the principal and her agent that lists out what medical decisions the latter can take on behalf of the principal.
Since it is an agreement, it must be entered into by competent parties out of their own free will. It must comply with all applicable laws of the state where it is executed. The agent has to ensure that doctors give the necessary treatment as per the principal’s wishes. He/she also gets the power to decide whether a particular procedure can be conducted to treat the principal.
It is essential to choose an agent wisely. He/she will have the power to decide how you will be treated at a hospital. Therefore, choose a person who can be trusted in situations where you may not be able to communicate with the doctors. She should be available and willing to take an interest in your medical care. She should know you and your values to make a correct decision. She can be your relative, but that is not necessary.
Anyone involved in your medical care, such as your physician or nurse, cannot be your agent. If you are married, your spouse automatically gets the authority under law to decide your medical treatment in case you become incapacitated. However, you may choose to designate someone else as your agent in his/her place. A medical power of attorney for a child vests with the parents. However, if the parents are not available due to any reason, another adult may be appointed as the child’s agent under a temporary medical power of attorney.
If you are a designated legal guardian of someone, then it is your responsibility to take their medical decisions. In every other instance, a person has to appoint someone else as her medical agent.
Purpose of a Medical Power of Attorney
People generally do not talk about medical treatments when they are healthy. It is only when an illness or accident occurs that they think about it. Unfortunately, in some cases, the person is incapable of communicating her wishes. For example, she could be in a comatose state or unconscious under anesthesia. In these situations, it becomes difficult for the family members to take a call on the medical treatment to be given. This is where a medical power of attorney plays an important role. It eliminates the difficulty in deciding the course of medical treatment as it lays down what the patient wants. The agent chosen by the principal has to act on her behalf and according to her wishes.
For example, she may not want to get blood transfusions due to religious considerations. If it is mentioned in the document, the agent has to abide by this condition.
It is important to note that your agent cannot make your decisions for you unless you become incapable of deciding for yourself or cannot understand the nature and consequences of the treatment. This is determined by the doctor, who has to give in writing that you can no longer make your own medical decisions. Only then can the agent decide your treatment for you.
Contents of a Medical Power of Attorney
When getting a medical power of attorney, ensure that all the terms in it comply with the law of the state. Typically, the following conditions are included:
- Appointment of the agent: This clause mentions the details of the person you are appointing as your agent. You can also add the term of the agreement- till what time it will remain in force. Though it is not mandatory, it is an excellent option to include another person as a back-up agent in case the first person is not available.
- Powers of the agent: This clause states the powers that the agent has while acting on the principal’s behalf. These powers can have a broad scope. They may range from agreeing to or refusing a particular type of medical treatment to admitting the patient to another hospital or to access all her medical records. The agent may also be authorized to allow the principal’s participation in medical research related to the condition or decide on organ donation by the principal under the relevant law.
- A clause stating when the agreement will come into effect: This clause states the moment at which the agreement takes effect. It may be when the attending doctor and agent think that the principal is unable to communicate a decision regarding her health. Some states require the doctor to certify that the principal is incapable of making her own decisions.
- The agreement also includes some miscellaneous provisions that help to execute it. These usually include declarations from the principle that doctors can trust the agent; she will not be liable for decisions taken in good faith; no other medical power of attorney should be considered and that the agreement is of a universal character that is valid in any jurisdiction where it is presented.
- The last part includes the signatures of the principal and the witnesses. Most states require witnesses, while some, like Missouri, request the form to be notarized and signed by witnesses.
[Also Read: Medical Consent Form]
How to Draft a Medical Power of Attorney?
Before appointing an agent and putting down the terms in writing, make sure to discuss your values and treatment with her. The process of negotiating an agreement of this kind is lengthy and takes place over a long period. However, the conversations help the agent to understand how you wish to go about your treatment. Once you have selected an agent, prepare an agreement while keeping in mind the following:
- State the name, address, and contact information of your agent, as well as your back-up agent.
- State the powers that your agent will get under this agreement. You can give her full powers ranging from surgical and psychiatric treatments to end of life decisions. For example, you can authorize your agent to refuse to put you on a ventilator if there is no hope for recovery or give consent for donating your organs.
- You may choose to limit your agent’s powers. You can also include a provision to revoke the agreement while you still can do so.
- Make sure that you, your agent, and the witnesses sign the document according to the laws of your state. Get it notarized if required. Give a copy of the agreement to your doctor.
Medical Power of Attorney Form
It is a standard form provided by every state in the USA. The way may vary according to the state. It lists the decisions that the agent can take on behalf of the principal abiding the state laws. A universal form is also available that covers the legal requirements of almost all the states. However, there are five states- Ohio, Indiana, Wisconsin, New Hampshire, and Texas- that does not recognize this form. They only consider their respective forms. In other states, people can use this universal form to appoint a medical agent.
In the absence of a medical power of attorney, the family of the principal may face a tough situation in case an immediate decision is to be taken. If the person is unable to communicate, then a new agreement cannot be created. In such a case, guardianship has to be sought through the principal’s local circuit court. This may involve a lot of time and money.
Benefits and Drawbacks of the Medical Power of Attorney
A medical power of attorney comes with its set of advantages and disadvantages.
Advantages:
- It gives you, the principal, the freedom to choose your agent for handling your medical treatment if you become incapacitated or unable to communicate with your physicians.
- The agreement, if drafted carefully, can cover almost every detail of how you wish your treatment to proceed. This dramatically removes the uncertainty that sometimes occurs when tough medical decisions are to be taken.
- Your family is made aware of your choice of agent and treatment. It allows for a constructive discussion with your near ones regarding your healthcare. This avoids disputes that could have arisen had your family not known about your wishes.
- It serves as strong evidence in the court of the wishes of an incapacitated person.
Disadvantages:
- One drawback associated with it is that once the agent gets the authority under the agreement, there is no way for the principal to exercise control over her. Though the agent is required to work according to the terms of the deal, there is always a chance that she may misuse her position. Therefore, it is essential to appoint a trusted person as your agent.
What Happens In Case of Violation?
The agent owes a fiduciary duty to the principal. This means that she has to give priority to the principal’s interests and work for her benefit. She has to act in good faith. However, if the agent abuses her duty in any manner, she can be sued in the local court by the principal or her family for violating the agreement. She may also face action for violating any law of the state that governs the agreement.
A medical power of attorney is an essential document. It allows a person to direct the course of her medical treatment if she is unable to communicate her decisions or understand the nature and consequences of the procedure is given to her. This eliminates uncertainty as the agent so appointed under the agreement is aware of the principal’s wishes.
It helps the doctors as well as the members of the principal’s family to make quick decisions. Given the essential nature of the document, care should be taken to make it according to the laws of the particular state(1). If there is any discrepancy in the agreement, the court may refuse to recognize it. It is therefore advisable to consult a lawyer before drafting the agreement.