As an offshoot of our earlier discussion on advance healthcare directives, here’s a focused one on healthcare powers of attorney (HCPOA), a specific kind of advance directive that you should also consider incorporating in your estate plan.
First, a recap–what’s a POA?
It’s been discussed a few times here on the blog, but it wouldn’t hurt to do a quick review on what a power of attorney is. We’re dealing with a specific kind of POA, after all!
To recall, a power of attorney is a legal authorization where a person designates another person to act on her behalf, most usually in business transactions (signing of documents, making financial decisions, and such) and healthcare matters (communicating with your doctors, adopting your medical wishes, etc.).
POAs ensure that you have someone who will act for you (in your best interests!) when you are unable to act for yourself. It’s what you can consider a safety measure… which, if you think about it, is what estate planning is all about, actually!
Time to zoom in on the healthcare POA–what is it?
Given this general idea, it’s now so much easier to understand the concept and specifics of a healthcare POA!
Let’s start with a simple definition (which, I assume, is pretty obvious at this point)–a healthcare POA is a legal document where the person executing it authorizes another person to make decisions about her medical care. (you guessed it!)
This other person is called your healthcare agent or healthcare proxy. She will be in charge of making decisions about treatment options, surgery, end-of-life care, among other medical matters. Your agent can be anyone, regardless of the relationship this person has with you. It can be your best friend, partner, cousin, colleague–anyone whom you trust and feel is competent for the job, basically.
Yes, trust and competence are your non-negotiables here. Remember, how it works is that when you become too ill to communicate your preference on medical care, your healthcare POA becomes activated and your assigned healthcare agent or proxy will then get to exercise the delegated power to make life (and, well, death) decisions for you. Surely, you need someone trustworthy and capable, whether or not you’re blood-related.
Aside from naming your agent, a healthcare POA will also contain the directives you want your healthcare agent to follow. You don’t want to leave her clueless and second-guessing, of course! Note that these don’t need to be specific–general insights on your morals, ethical values, religious restrictions, and such other considerations that may give your healthcare agent an idea on how to go about your medical situation should suffice.
I already have a financial POA in place. Do I still need a separate POA for healthcare?
To emphasize what has been said earlier, a healthcare POA is a specific kind of POA, and thus has specific and separate uses and advantages. A financial POA does not provide answers to healthcare matters in time of incapacity–it’s drafted for entirely different reasons! As such, having a financial POA in place is not a reason not to get a separate POA for healthcare.
In terms of responsibilities, your financial agent is the person in charge of managing your assets in the event that you no longer can. This is in order to prevent the mishandling of your hard-earned money and properties. On the other hand, your healthcare agent is the one in charge of communicating your medical preferences with your doctors or caregivers in the event that you no longer can, in order to prevent performing unwanted treatments or making the wrong decisions with respect to your care. Both POAs apply during incapacity, but for totally different purposes and functions.
This is not to say you cannot assign one and the same person for both tasks, though! There is no prohibition in designating the same person for all your POAs. For example, if you're married you may choose to make your spouse your financial and healthcare agent, but you may also choose to have different people.
Anything to keep in mind (and watch out for!) in choosing my healthcare agent?
This can feel like a big decision. We can help! Here are your 3 Cs to take into account in drafting and eventually executing your healthcare POA:
Communicate with your healthcare agent.
Sometimes people will choose a friend or family member with medical expertise (like a nurse), while others will choose someone that they know will follow their healthcare wishes without question. It's your call!
Sure, you have complete trust in this person, but it doesn’t stop with just confidence. You have to make sure your healthcare agent is actually willing to be your spokesperson in the event of your incapacity. Apart from willingness, you also have to make known to her your expectations, terms, and so forth. Certainly, these are all achieved through communication.
You can always change your mind.
Your choice for your healthcare agency is not permanent. You can always designate a new one if, for whatever reason, you become uncomfortable about your former choice or if the person you chose is no longer available. Don’t pressure yourself about making the perfect choice just because you think it’s going to be permanent–your freedom to choose your healthcare agent comes with it the freedom to reverse your decision any time.
Consider the legalities.
Laws applicable for the execution of a healthcare POA vary from state to state, so make sure you take this into consideration in drafting your own. For instance, in Missouri, a healthcare agent is restricted in making decisions concerning life-prolonging acts. There are also different formal requirements in executing the document. (Otherwise, it may be rendered invalid!!) Needless to say, it's important to follow Missouri laws closely when making a healthcare POA–it’s a legal document, after all!
We can help you set up your healthcare POA, along with your other documents.
Whenever you’re ready, Emerald Law is here to help you through the whole estate planning process.
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Talk to you again in the next post!