Last week, I blogged about the importance of powers of attorney, in general. I focused on financial powers of attorney and their potential abuse.
This week, I’ll focus on health care powers of attorney. This is one of the typical documents in a basic estate plan. However, people often give little attention to thinking about this POA. People do not like thinking of their own mortality or their own illness. But, unfortunately, it involves issues we all must face eventually. A health care power of attorney may vary from state to state. In some states it includes a living will or health care directive, in other states that may be a separate document. The person who is appointed as the agent is the one who is given the authority to consent (or withhold consent) for medical treatments.
Of course, it is important for a client to give thought to all of the people they might appoint in fiduciary roles, like Trustee, financial POA agent, and health care POA agent. But, perhaps the health care agent is most important of all. This person literally may have life and death decisions in their hands. That is why it is so important to choose the right person for that role. Above all, you want someone with good judgment who will comply with the client’s wishes, even if those wishes may not be identical to the decisions the agent might make for themselves.
Along this line, it is important to remember that the client should do a new health care POA if their relationship with the agent changes. For example, if someone names their spouse as their agent and later gets divorced, state law may or may not revoke the designation, depending upon the state. It is best to do a new health care POA after divorce. Otherwise, the client may have the unfortunate surprise of having their ex-spouse as their health care agent.
The health care POA is an important document. It’s important to stress the importance of choosing the right agent, and having the client alert you of any changes in circumstances.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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