Health Care Power of Attorney

by Kate Mewhinney
Kate Mewhinney is a clinical professor at Wake Forest University School of Law and is the managing attorney for its Clinic for the Elderly, which serves financially eligible residents in the Winston-Salem area of N.C. She is certified as an elder law attorney by the National Elder Law Foundation, a nonprofit organization dedicated to the development and improvement of the professional competence of lawyers in the areas of elder law.

A health care power of attorney–also known as a durable power of attorney for health care - can be helpful when you’re unable to make medical decisions for yourself. You might also hear it referred to as a health care proxy or a medical power of attorney. It names someone who “stands in your shoes” and tells the doctors what to do or not do for you.

Unlike the living will which usually is limited to terminally ill patients this document applies whenever you’re unable to make medical decisions, such as when you’re temporarily incapacitated or seriously ill.

When choosing someone to be your health care power of attorney, you’ll want someone who:

It’s also a good idea to name an alternate, in case your first choice isn’t available.

You may have specific wishes you want to spell out for your family. For example, you might:

Your quality of life may deteriorate to the point where some would consider it worse than death. Some people would not want aggressive medical treatment if they were permanently unable to communicate, for example, or if they had a long, chronic illness with serious side effects. Some folks don’t want to be resuscitated or kept alive if they ever suffer from severe dementia, such as advanced Alzheimer’s disease or a severe brain injury.

If you feel this way, say so in your health care power of attorney and explain your views to your family, too.

In some states, a health care power of attorney can apply when you’re in a persistent vegetative state. Doctors sometimes refer to this as “eyes open unawareness,” meaning a person can’t communicate or understand what’s going on around him.

If you were terminally ill, would you want to be maintained on tube feeding? If you wouldn’t want your life prolonged by artificial hydration and nutrition when there’s no hope of recovery add this to your health care power of attorney.

A Family Decision
Families do have a say in what medical treatment should be given to seriously ill relatives. Usually, the spouse or adult children make these decisions. Even without a living will, life support can sometimes be withheld or withdrawn if the family agrees it’s best.

But families tend to disagree, especially under stress. In the meantime, you could be the one being kept alive against your wishes and may prefer that big medical bills don’t pile up when there’s little hope of a meaningful recovery.

If relatives know your views, they can explain them to the medical team. They can also ask to meet with the hospital’s ethics committee. Some states have laws that specifically allow relatives to make medical decisions for very sick patients who can no longer communicate.

If you don't have a living will, someone might have to become your legal guardian, sometimes called a “conservator.” How complicated this is depends on your state’s law. Sometimes a hospice can connect you with an attorney or other resource to help with the guardianship process.

When a health care facility refuses to honor a reasonable request by relatives regarding life support, consulting an attorney is a good idea. Often, an elder law attorney is familiar with the issue and can go to court if need be.