Creating a Healthcare Power of Attorney with an Elderly Loved One

Page Reviewed / Updated - Sep. 2017

Introduction

This article focuses on how, when, and why elderly individuals should create a Medical Power Of Attorney (Medical POA). It is intended for elderly individuals, their spouses, and family members who love them and care for them. This article is especially relevant to individuals living in assisted living, nursing homes or receiving home care.

 Naming Confusion - A Medical Power of Attorney can be referred to by several names including Health Care Power of Attorney, Health Care Proxy and a Durable POA for Healthcare.  Though some may argue there exist subtle nuances betweens these names, from the family's perspective they can be considered synonymous.

 

Description and Purpose of a Medical POA

A Medical Power of Attorney (MPOA) is a legal document that allows elderly individuals to appoint another person to make healthcare decisions on their behalf. The Medical POA cannot be used to allow someone to make financial decisions. However, a separate, but similar document called a Financial Power of Attorney exists for that purpose.

A Medical POA can be created to allow someone to immediately take over making healthcare decisions, but that is generally rather rare. The vast majority of POA’s are written to become effective only after a certain health related event has occurred. The triggering event usually results in the elderly individual being no longer capable of making their own healthcare decisions or capable of communicating them.

Under most Medical POA’s, the person who has been designated to make the decisions on behalf of a loved one can decide if life support services should be continued or discontinued, agree or deny treatment plans, and choose which doctors / specialists will be used.

It should be noted that it is largely possible to circumvent the need for a Medical POA by writing a Living Will (also called an Advance Health Care Directive). In a Living Will, one essentially writes down what they would like their healthcare decisions to be should certain medical situations arise. However, it is impractical to capture all possible health scenarios and courses of action in a single conclusive document. Therefore, those creating a Living Will might best be served to also create a Medical POA to address situations not foreseen in their Living Will.

Medical POA written with a triggering health-related event, require a doctor's opinion to attest that the triggering event has occurred. Once effective, the Power of Attorney remains effective until death, unless the unlikely event occurs where the triggering event is reversed. For example, if someone unexpectedly comes out of a coma.

Make note, the VA has its own internal policies regarding POA’s and require a particular format. Given this, it’s best that veterans fill out VA Form 10-0137 - “VA Advance Directive: Durable Power of Attorney for Health Care and Living Will” Form. Click here for this form.

 

What a Medical POA Cannot Do

Are there healthcare decisions that cannot be transferred using a MPOA?  Yes, there are healthcare decisions that cannot be transferred. However, only a few of these are relevant to elderly persons and most surround treatment for mental illness. Decisions that cannot be authorized include neurosurgery for mental disorders, commonly referred to as a lobotomy, and electroconvulsive therapy, commonly referred to a shock treatment. Also the decision maker cannot refuse comfort care, which is care that is intended to ease a dying person's pain.

 

Relevant Parties When Creating a Medical POA

The creation of a Medical Power of Attorney can have as few as three parties involved in order to make it a legally binding document.  However, they are many other players that can be involved.  Most of these have legal titles which are not at all indicative of the role they play.

1.  Principal - the individual who is giving up the power to make their own healthcare decisions through the Power of Attorney is called the principal.  In the context of aging, the principal is most often an elderly individual in poor health. 

2.  Agent - the person receiving power to make healthcare decisions  is called the agent.  The agent is also called an attorney-in-fact.  Any adult can be appointed as the agent.  In the context of aging, most often an adult child assumes this role but also common are siblings, grandchildren and other relatives. 

3.  Successor Agent - a successor agent is the second in charge.  They assume the role of the agent if the agent is unable or unwilling to assume responsibility.  A Successor Agent is an optional party in a Medical Power of Attorney.

4.  Notary Public - is an individual licensed by a state government to serve as an official witness.  In most states, a Medical POA must be signed and notarized by a notary public to be a binding legal document.

5.  Doctor - a healthcare professional is not necessary to create a Medical Power of Attorney unless there is some question regarding the mental competence of the individual who is giving up power.  In this situation a doctor's opinion may be required to attest that the individual is in fact mentally competent when entering into the agreement. This is of particular relevance for persons with Alzheimer's or other conditions whose symptoms manifest themselves with periods of lucidity and periods of confusion.

6.  Lawyer - legal assistance is not needed to create a Medical Power of Attorney.  Despite this some families choose to work with and store the document with an attorney.

7.  Relatives - family members of the individual relinquishing power do not need to consent to, be present at the signing, or even be notified of a Medical Power of Attorney. 

8.  Conservator - a conservator is an individual appointed by the courts when a Medical Power of Attorney does not exist and the person is declared incompetent.  They may also be referred to as a court-appointed guardian.  They are not involved in the creation of the POA, but it is terminology of which one should be aware.

 

Who Should Have One and When

Who should have Medical Power of Attorney?  It is the opinion of the authors that everyone should have a Medical Power of Attorney.  The reason being if one is incapable of making their own healthcare decisions, they would most likely want someone who loves them to make those decisions on their behalf.   Should one not have a Medical Power of Attorney and loses their basic competency, then the decision goes to the courts to determine who should make healthcare decisions for them.  Often the consequences of using the courts include family infighting and lengthy delays.  During the delays, all decisions are made by the medical staff treating the individual or by a healthcare surrogate who is selected by the attending physician. 

When to create a Medical Power of Attorney? One can only make a MPOA if they have basic competence.  Basic competency means one is aware of what they are signing and aware of what would otherwise happen were they not to create the MPOA.   Therefore, one should create it while they have basic competence.   A diagnosis of a terminal illness, does not prevent one from creating a MPOA.  However it does increase the urgency to do so as basic competency may eventually be lost. 

 

Storing Your Medical POA

What to do with a Medical Power of Attorney? After a MPOA has been notarized, who to notify of its existence becomes a highly personal question and one specific to every family. In some cases, the individual giving up or eventually giving up power will want all of their family members to be aware. In other cases, they will want the information to remain confidential. Regardless of which family members are notified, one's doctors should be made aware of the existence of a MPOA and provided with the contact information of the Agent (the individual to whom power is being transferred). In addition, the Agent should have a copy of the document, and it should be kept in a safe place.

 

Costs and Assistance Options

How much does a Medical Power of Attorney cost?  A MPOA can be created without legal assistance and almost free of charge.  Since in most states, the document must be notarized, there are associated notary fees which are usually less than $50.

There are universal MPOA templates available online free of charge.  However be aware that as of 2015, the following states did not permit use of a universal form:  Indiana, New Hampshire, Ohio, Texas and Wisconsin.