This is the second in a three-part series of articles on Powers of Attorney. The first article examined the Financial Power of Attorney. This second article examines the Healthcare Power of Attorney and Advance Directive. The third article in the series will focus on a “HIPAA” Power of Attorney. These three documents are the keystone in even the most basic estate plan.
As outlined in the first article in the series, a Power of Attorney is a document by which you appoint someone as your “Agent” to act on your behalf. If that Agent is unwilling or unable to act, the document can appoint one or more successor Agents. While a Financial Power of Attorney appoints an Agent to make financial decisions for you (as outlined in the first article in the series), a Healthcare Power of Attorney appoints the Agent to make Healthcare decisions for you. With a Healthcare Power of Attorney, when you are unable to make Healthcare decisions for yourself, your Agent is empowered to make them for you.
Let’s look at an example:
Mike is 19 and in college. Mike’s parents are divorced. Mike has named his father, Harry, as his Healthcare Agent. Mike fell ill due to COVID-19. He passed out and was brought to the hospital. The doctors needed to make decisions regarding his care and which of two routes to take in his treatment. Mike’s mother wants the doctors to take the first course of action and see what happens. Mike’s father wants the doctors to take the more aggressive course of action and put him on a ventilator until he improves. Because Mike named Harry as his Healthcare Agent, the doctors take the second course of action and put Mike on a ventilator and he recovers completely.
Sometimes a Healthcare Power of Attorney also includes a portion that is sometimes called an “Advance Directive” and sometimes called a “Living Will.” Often this portion could be in a completely separate document. It just depends upon the jurisdiction.
The U.S. Supreme Court, through sad cases such as Cruzan and Schiavo, has said the intent to be removed from life support when there’s no hope of recovery may be carried out if that intent is expressed clearly.
The Advance Directive or Living Will expresses your intent regarding what should happen to you if there is no reasonable hope of recovery. In other words, it expresses your intent regarding end-of-life decisions. Do you want to be kept on life support as long as possible, even if there is no hope of recovery? Or, if there is no reasonable chance of recovery, do you want to be kept out of pain to the extent possible, even if it might hasten your death? The decision is yours. Nobody wants to think about the possibility of being in a situation like that.
But, if you express your end-of-life decisions now, your wishes can be carried out and your family can know they did what you wanted. Your expression will also help to circumvent a protracted battle among family Members regarding what should happen, like the years-long battle in the Schiavo case.
A Healthcare Power of Attorney ensures your healthcare decisions are made by the people of your choosing. An Advance Directive expresses your choice regarding end-of-life decisions. Both of these documents help avoid conflict among your family Members regarding your treatment.
The next article in the series will focus on the HIPAA Power of Attorney and its importance.
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128