Power of Attorney

There are different types of power of attorney. Some grant very broad powers to the holder; others are limited to specific issues, such as consenting to healthcare. Be sure you and your loved one understand the type of power of attorney that will best serve you both.

There are, at a basic level, two types of powers of attorney. A "general" power of attorney is unlimited in scope and duration, and permits the named individual to act as your legal representative in relation to financial matters until such time as it is revoked.

A "specific" power of attorney imposes limits upon the named representative, and may restrict the scope of that person's powers to a single type of conduct or a single transaction. Either type of power of attorney may be limited in its duration. That is, the document can specify a date after which the power of attorney will no longer be valid.

Powers of attorney issued for the purpose of managing your assets in the event of disability are almost always unlimited in duration, that is, they are "durable" powers of attorney. You may wish to limit any power of attorney of this type, such that it expressly recognizes your right to participate in medical and financial decisions, to the extent that you are able.

Given that the power of attorney can grant considerable power to a third party to act on your behalf, you should give careful consideration to the person to whom you choose to grant those powers, and whether any limits should be imposed in the time the power of attorney will last, or in its scope.

The greatest need for a power of attorney is made in anticipation of a medical emergency or disability. That is, if you are in an accident, or suffer a disease or disorder that may leave you unable to articulate your own wishes, a Medical Power of Attorney form allows you to choose in advance who will represent your interests, and can impose upon them the restrictions you wish. You may wish to make clear, for example, that the person is not authorized to override your "living will", a document which limits the right of doctors and hospitals to resuscitate you or to utilize invasive life support to keep you alive.

A Medical Power of Attorney is a document, signed by a competent adult, i.e., "principal," designating a person that the principal trusts to make health care decisions on the principal's behalf should the principal be unable to make such decisions. The individual chosen to act on the principal's behalf is referred to as an "agent."

The agent should be knowledgeable about your wishes, values, and religious beliefs, and in whom you have trust and confidence. In the event your agent does not know of your wishes, that agent should be willing to make health care decisions based upon your best interests. The person must be 18 years of age or older or a person under 18 years of age who has been legally emancipated.

An agent may make health care decisions on your behalf only if your attending physician certifies in writing that you are incompetent. Treatment may not be given to or withheld from you if you object. This is true whether or not you are incompetent.

Under a Medical Power of Attorney, an agent is given wide latitude when consenting to treatment on your behalf. However, an agent cannot consent to:

• Commitment to a mental institution,
• Convulsive treatment,
• Psychosurgery,
• Abortion, and
• Neglect of comfort care.

And in the Medical Power of Attorney document itself, you may limit the agent's decision-making authority.

The Medical Power of Attorney is not legally effective unless you sign a disclosure statement that you have read and understood the contents of the Medical Power of Attorney before signing the Medical Power of Attorney itself.

If you do not have a Medical Power of Attorney, in the event of incapacity your loved ones may be forced to seek a court order to appoint somebody, usually called a "guardian", who will be authorized to oversee your medical care, where you receive your care, and to enforce your wishes in relation to your care.

Although you are not required to designate an alternate agent, you may do so. The alternate agent(s) may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act.

Anyone may act as an agent other than the following:

• The principal's health care provider,
• An employee of the health care provider unless the person is a relative of the principal,
• The principal's residential care provider, or
• An employee of the principal's residential care provider unless the person is the principal's relative.

The Medical Power of Attorney is broader in scope than other Power of Attorneys and includes all health care decisions with only a few exceptions. The Medical Power of Attorney does not require that you be in a terminal or irreversible condition before your agent can make health care decisions on your behalf. A lawyer is not necessary in order to execute a Medical Power of Attorney.

The agent may, in the course of making a health care decision:

• Request, review, and receive information about your physical or mental health, including medical and hospital records;
• Execute a release required to obtain the information; and
• Consent to the disclosure of the information.

Your agent's authority begins when your doctor certifies that you lack the competence to make health care decisions. Your agent is obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had.

It is important that you discuss this document with your physician or other health care provider before you sign it to ensure that you understand the nature and range of decisions that may be made on your behalf.

Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Because "health care" means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you.

Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent's instructions or allow you to be transferred to another physician.

Even after you have signed this document, you have the right to make health care decisions for yourself as long as you are able to do so. In such case, treatment cannot be given to you or stopped over your objection. This document may not be changed or modified. If you want to make changes in the document, you must create an entirely new one.

A Medical Power of Attorney may be revoked by notifying either the agent or your health care provider orally or in writing, of your intent to revoke. This revocation will occur regardless of your capacity to make health care decisions. Further, if you execute a later Medical Power of Attorney, then all prior ones are revoked. If you designate your spouse to be the agent, then a later divorce revokes the Medical Power of Attorney.

As long as you remain competent to manage your own legal affairs, you may terminate any power of attorney that you have previously executed. To the extent possible, you should collect and destroy the original powers of attorney and any copies, so as to avoid confusion or misrepresentation at a later date.

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