fundamentals
Advance Directives
Health Care Power of Attorney
A health care power of attorney is a document in which one person (the principal) names another person (typically called the health care agent, but also proxy, representative, or surrogate, depending on the state) to make decisions about health care in the event the principal losses capacity to make health care decisions. Like the living will, this document may be called by different names in different states. A health care power of attorney differs from a living will in that it focuses primarily on the decision-making process and not on a specific decision. The power of attorney for health care can cover as broad a range of health care decisions as the principal desires. Once in effect, the agent can review the medical record, serve as an advocate, discuss care and questions with the medical staff, and decide what the principal would want or what is in the best interest of the principal if the principal's wishes are not known. The health care power of attorney can include a Living Will provision—a description of health care preferences—or any other instructions but should, preferably, do so only as guidance for the agent, rather than as a binding instruction. The agent should be selected with great care. A person who strongly wishes to avoid aggressive medical treatment should not name an agent who might not carry out such wishes. For example, selecting as agent a person who believes that every possible medical intervention should be used to prolong life, or a spouse whose emotional state might make it difficult to limit or terminate care, may not be wise. A better choice might be a trusted associate, advisor, or a longtime friend. An ideal agent has the ability to talk effectively with health care professionals and act as a strong mediator and advocate when faced with resistance from the principal’s family members, friends, or health care professionals. Principals should discuss the goals, values, and wishes they want agents to use as guidance, because agents will need all the guidance possible when making decisions that can be extremely difficult. In addition, a principal should make sure that the agent is willing to take on this responsibilitybeforethe principal names the person as agent. In most states, two or more people may be named to serve as agents together (jointly) or alone (severally). However, having more than one agent, whether acting jointly or severally, can create conflicts and complications and should probably be avoided or discussed with an attorney. If feasible, the health care power of attorney should name an alternate or successor agent in case the first-named person is unable or unwilling to serve. The law of each state describes the rules and procedures necessary for making a valid health care power of attorney as well as living will. These rules should be followed carefully. A few states require that living wills be written in a fairly standardized way. Most states are more flexible, permitting any language as long as the document is appropriately signed and either witnessed or notarized. A principal who has capacity can cancel the health care power of attorney at any time. The choice of agent does not have to be permanent. If circumstances change, the principal can and should create a new health care power of attorney and/or name a new agent. The health care power of attorney is important for younger as well as older adults because a health care agent can act during periods of temporary clinical incapacity as well as during more likely permanent incapacity near the end of life. It is especially important for anyone who wants someone other than next of kin to control decision making (for example, a partner, friend, or anyone else legally unrelated). It is the only way, outside of a court proceeding (which is a complicated process), to give that person the legal authority to make health care decisions and to ensure rights of visitation and access to medical information. This is because default surrogate statutes in many states do not grant such people decision-making authority. A health care power of attorney is particularly important for all adults, even younger adults, who want someone other than next of kin to control decision making (for example, a partner, friend, or anyone else legally unrelated). 