Durable Power of Attorney for Health Care

A Durable Power of Attorney for Health Care, sometimes called an advance health care directive, allows you to name another individual as your agent to make health care decisions for you if you become incapable of making your own decisions, or if you want someone else to make those decisions for you now even though you are still capable. You may also name one or more alternate agents to act for you if your first choice is not willing, able, or reasonably available to make decisions for you.

Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, nor a spouse of any of the above. If your agent falls into one of these categories but is related to you, he or she may serve as your agent.

Unless you limit the authority of your agent, a Durable Power of Attorney for Health Care generally empowers your agent to make all health care decisions for you; however, you may choose to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. Be careful in limiting the powers of your agent, as you may unintentionally restrict your agent’s flexibility to respond to unforeseen situations.

Your agent should be a competent and trustworthy adult with whom you have discussed your wishes, but need not be an attorney at law.

In general, a Durable Power of Attorney for Health Care is durable and effective upon signing; that is, it will be effective immediately and will continue in force even if you become incapacitated. Before you become incapacitated, this Power of Attorney can be revoked in writing at any time. You should notify your agent and any third parties who may be relying on the Power of Attorney of the revocation in writing.

If your spouse is appointed your agent and you later divorce, the Power of Attorney may be automatically revoked. You should execute a new Power of Attorney should you wish to ensure that your ex-spouse continues on as your agent; if you do not, you should instead execute a revocation and notify your ex-spouse to ensure that your ex-spouse does not continue on as your agent.

A notary and two competent adult witnesses should be used when executing a Durable Power of Attorney for Health Care. None of the witnesses should be the agent(s) being appointed; related to you by blood or marriage; directly financially responsible for your health care; entitled to any portion of, or with any claim against, your estate upon your death; a beneficiary of any life insurance policy you may have; your attending physician, or his/her employee or spouse; an employee or patient of the health care facility in which you may be a patient. At least one of your witnesses must also meet the following criteria:  not related to you by blood, marriage, or adoption; and not entitled to any part of your estate upon your death. You must sign the Power of Attorney in the presence of your witnesses.

If you have any questions about a Durable Power of Attorney for Health Care or do not understand this document, consult an attorney in your state for legal advice.