Legally speaking: Medical power of attorney is fine, but hold that conversation with your doctor

By B. Scott Skillman

Scott is an Indiana attorney in his 32nd year of practice. He is a member of United Hebrew Congregation and proud father of two children. Scott reminds us his columns are intended for informational use only and should not be considered “Legal Advice.” He believes everyone should feel comfortable asking questions of their attorneys. “There are no bad questions — only vague answers.”

Last month, I spoke about the use of power of attorney to permit others to act on our behalf when we are unable to do so ourselves.

These are short documents, permitted by statute, that instruct the recipient to allow a person to take certain steps on our behalf when we are incapacitated or simply not present to accomplish whatever needs to get done.

Such tasks can include banking, tax filing or court actions, but encompass just about anything, so long as the power of attorney follows that statute.

Power of attorney may be established for a set purpose or with a time limit or for an indefinite time, but can always be revoked at any time.

To revoke power of attorney, one just issues another notarized statement of revocation and provides it to whomever has previously relied on that power of attorney.

Let’s talk about advance directives

This month, I want to speak more about advance directives, also known as medical power of attorney, or appointment of health care representative, as it is more commonly labeled.

Again, these are a statutorily created documents used by medical providers to permit a person or persons to make decisions about health care.

Doctors and hospitals are not required to accept power of attorney documents, but most do.

As with other powers of attorney, this document releases the doctor or hospital from liability for allowing someone, not you, to make health care decisions. It also permits this individual to receive personal information about your health care that would otherwise be private, and thus inaccessible to them.

The language of these documents must follow the statute exactly. Again, doctors and hospitals are not required to accept power of attorney documents, but most do.

Living will provides end-of-life instruction

Health care representative powers of attorney are often coupled with another separate document (often connected to the power of attorney) called the living will directive.

Most people are familiar with this document. It allows us to direct our doctors how to proceed in certain situations where prolonging life is possible but where recovery is nearly impossible.

We all should be aware of certain factors when relying on these documents. Living will directives allow us to elect to refuse life-prolonging care when in a coma or unable to make decisions due to unconsciousness and where recovery is extremely unlikely.

Engage in an eyeball-to-eyeball conversation with your primary care doctor to determine if the physician is comfortable with such terms.

This document requires a doctor to certify recovery is not going to happen!

However, I can tell you very few doctors will make this kind of determination. Therefore, one should engage in an eyeball-to-eyeball conversation with his or her primary care doctor to determine if the physician is comfortable with such terms.

It is pointless to create such a directive if the doctor will not follow it. A health care representative can make this decision about prolonged care on our behalf. But again, this holds only if the doctor agrees to make this certification.

So we must hold this conversation with the doctor prior to the event that leaves us incapacitated.

Plan now to avoid problems later on

Other kinds of advance directives exist as well, with organ donation and donation of a body for medical study the most common.

In conclusion, it is essential that everyone, healthy or not, create an appointment of health care representative to permit access to information that our representative will use to make care decisions.

Many hospitals have a form they prefer, but anything that follows the statute is acceptable.

In reality, living will declarations rarely provide the determinative factor in end-of-life decisions.

Health care providers rarely rely upon living will declarations, but these documents provide a good platform to express our opinions about prolonged care. In reality, though, living will declarations rarely provide the determinative factor in end-of-life decisions.

I encourage everyone to have a living will declaration, but be aware physicians may not accept them — which can be a source of frustration for the living.

Next month: Will I or Will I Not?

Previous columns in this series

Part 1: Let’s discuss simple steps to plan for estate administration

Part 2: What is power of attorney, and when do we need it?

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