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Issues You Should Discuss with Your POA Agent

A good conversation with your designated POA agent raises issues that can help you clarify your wishes about your medical care. Here are some questions to get the discussion going:

  • What medical treatments would you refuse or accept at the point you become incapacitated and why?
  • What are you afraid might occur if you can't make decisions for yourself?
  • What are your POA agent's beliefs in relation to your own beliefs about what should happen?
  • What are your views on artificial nutrition (food) and hydration (fluid)?
  • Under what conditions is it acceptable and not acceptable for hospital staff to perform CPR (cardiopulmonary resuscitation) to restart your heart?
  • What are your feelings about receiving treatments such as mechanical ventilation, antibiotics or a feeding tube? In which situations does it make sense for you to receive these treatments?
  • If your condition doesn't improve, would you want treatments discontinued after a time? What does that mean specifically?

Adapted from the Society of Certified Senior Advisors, Guide to the Different Types of Power of Attorneys.

While the idea of giving someone medical power of attorney (POA) might cause fears of losing control, the consequences of not having one can produce disagreement between family members and friends and possibly lengthy court proceedings. Without a POA, medical decisions could be left in the hands of family members who have different ideas about what you want, doctors who aren't familiar with you or your medical issues or, ultimately, the courts, which would appoint a guardian in the case of incapacitation.

There are several kinds of powers of attorney, but we're referring here to what is called 'durable,' because 'it remains valid even if you become incompetent or incapacitated, while an ordinary POA expires if a person becomes unable to make his or her own decisions. Durable powers of attorney can be prepared either to take effect immediately or to go into effect only if and when you become unable to make decisions for yourself (a 'springing durable power of attorney'),"

Medical POA (often called agent) duties include consultations with your doctors to choose your course of treatment, full access to your medical records and the authority to make choices for you about tests, surgery or medication. Your POA agent would be able to choose your doctors, hospitals or other medical agencies such as specialized clinics or rehab facilities.

Every state has slightly different laws about medical POA, so you will need to find out your state's specific rules. However, a medical POA does not give your healthcare agent authority to make financial or any other business decisions for you.

When to Assign a POA

There are no hard and fast rules for determining when to assign a POA, but you should do it while you are healthy, strong and able to make decisions.

Aging Care recommends having honest conversations with your adult children about appointing a POA. As much as you don't want to think about it, disease, dementia, strokes or other incapacitating incidents can cause you to become incompetent.

Aging Care advises being 'open and honest. Don't be afraid of hurting your kids' feelings. Talk about all of it. If you go outside the family to appoint anyone as your agent for healthcare, be sure it is a compassionate person who will work with, and not against your family.'

Who to Appoint as Your POA Agent

Most experts recommend using either a family member or friend to act in your behalf with medical issues. If you are legally married, your spouse is already designated by law to be your POA agent if you become incapacitated (although experts recommend designating someone else).

Your POA agent should be someone who has similar views about end-of-life issues and medical care, as well as someone who is willing to take responsibility and make hard decisions, if necessary. Also, you must be willing to have in-depth conversations with your medical POA agent about your life, values, preferences, end-of-life care and spiritual or religious considerations. You should have frequent discussions with this person, as your medical condition changes and as new medical techniques emerge.

Ultimately, the person you select will be making decisions based on your living will and your discussions with them. A living will is an advance directive that guides your POA agent, family and healthcare team about the medical treatment you wish to receive if you are unable to communicate your wishes.

How to Legally Create a POA

The good news is that you don't need a lawyer. You can get forms from your doctor, a local hospital, nursing home or online from the state government. You and your designated POA agent must sign these forms and two people must act as witnesses, although exact rules vary from state to state.

Many states have combined the medical POA with the living will. Caring Connections explains the different requirements for each state in clear language.

The POA starts only when your doctor deems that you are incompetent to make your own decisions (Texas Medical Association). Your attending physician must certify this in writing and file the certification in your medical record.

When the POA Can Be Revoked

Your written wishes for health care remain effective as long as you are alive, unless you specifically revoke your documents or a court steps in (but court involvement is rare). According to Nolo (Law for All),your POA documents are no longer effective when:

You revoke your document. You can change or revoke a healthcare document at any time. Be sure that your healthcare providers and your POA agent know of your intention to cancel the document.

A court invalidates your document. Most judges recognize that a court is normally not the right place to make healthcare decisions. However, if your healthcare is the subject of a dispute and someone questions the validity of your healthcare directives, the matter may end up before a judge.

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