A Simple Durable Power of Attorney for Health Care

All baby boomers need to have what I call health care crisis documents and “end of life” documents in place, to protect themselves and their families.  These documents include a will, a health care advance directive, and a durable power of attorney for health care.  I want to talk first about the health care power of attorney.

What is a Power of Attorney for Health Care?

A power of attorney for health care is a legal document in which a first person grants to a second person the authority to make decisions about health care to be provided to that first person.  Obviously, this authority applies only under conditions in which the first person is unable due to a temporary or permanent disabling condition to make his or her own health care decisions.

Although state laws and most medical providers will allow certain relatives ( a spouse for example) to make some health care decisions for a seriously injured or sick person, those decisions may not be to your liking.  That is why my wife and I have prepared durable powers of attorney for each other that contain more specific information about how we want to be treated in case we cannot make decisions for ourselves.

The Difference Between a Health Care Power of Attorney and a Living Will

A living will – also called an Advanced Directive or Health Care Directive – is a separate document in which you give specific directions to health care providers as to how you want things to go if you are in an end-of-life threatening situation.  In other words, you take those decisions out of the hands of your relatives, even if they have a health care power of attorney from you.  The two documents can work together.  The living will provides specific instructions for specific death-bed circumstances.  The health care power of attorney extends authority to that second person for making other health care decisions that are not in conflict with your living will.  In some states, the terms in a power of attorney will take precedence over a conflicting term in a living will.

Preparing a Health Care Power of Attorney

A health care power of attorney must be a “durable” power of attorney.  This means that it is effective even if the first person is incapacitated.  The authority of a non-durable power of attorney is automatically revoked in most cases if the first person becomes incapacitated.   Obviously, that won’t work for health care decisions.

There are different ways for baby boomers to obtain or prepare a durable power of attorney for health care.  You do not need a lawyer to do this.  Many hospitals provide forms.  Some state health care agencies will provide them as well.  You can also buy forms from different legal forms vendors.

A Simple Power of Attorney for Health Care

I came across a Power of Attorney for Health Care form that is published by our state bar association.  It should be usable for a lot of people who do not need or require much detail.   I like its simplicity. 

Keep in mind that most states will require that your signature on a health care power of attorney be notarized.  That is not always the case for a living will.  The form text is reproduced below for you to cut and paste:

Durable Power of Attorney for Health Care

1.  This paper says who I want to make health care decisions for me. I want them to do this only if I am too sick to decide for myself.  I want them to try to make the same decisions that I would make if I could.

2.  I want this person to have all the legal rights to OK, refuse or stop medical care for me for a physical or mental condition. If I need it for mental illness or serious emotional disturbance, I want them to hospitalize me.

3.  I want this person to have all the rights I have under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This person can get copies of all my medical information.

I want this person to have my durable power of attorney.  I want them to have the power to do the things listed above.  This information identifies this person:

Name: __________________________________

Street Address: ___________________________

City: ________________________ State: ______

Day time phone: __________________________

Night time phone: _________________________

Backup attorney in fact:

If the person named above cannot or will not serve, I want the following person as my backup attorney in fact. I want them to have full powers and responsibilities to make health care decisions for me.

Name: __________________________________

Street Address: _________________________

City: ________________________ State: ______

Day time phone: __________________________

Night time phone: ________________________

I give my OK to use copies of this legal paper. I am signing this Durable Power of Attorney for Health Care on this _____ day of _______________, 20____.

My signature: X________________________

Person giving the Durable Power of Attorney for Health Care (Principal)

[If you have a Living Will (and you should), you can include this text in the document:]

Does my doctor think I will die no matter what they do?  Then I want this person to make sure my Living Will is followed. I want them to make sure that I die naturally. This means: (a)  Not dragging out my dying with machines or treatment that won’t help; and (b) Giving me only what I need to be comfortable and out of pain.

Does my doctor think I will die no matter what they do? Then this is what else I want.

• I may not be able to eat or drink. In that case:  I DO ____ or DO NOT ____ give this person the right to say no to or to stop having me fed through a tube or a vein.
• When I am dying, I want treatment and medicine to keep me comfortable and out of pain. In that case:  I DO ____ or DO NOT ____ give this person the right to OK any treatment or medicine to do that. I want this treatment and medicine even if it could hurry my death. I want it even if it could cause addiction. I want it even if it could cause permanent physical damage.

My signature: X_______________________

Date: ___________

Witnesses Statement

By signing this paper, each witness is saying that : “I know the person who signed this paper and asked me to be a witness. This person is an adult. This person signed the paper in front of me. I believe this person is in their right mind and knows what they are signing. I believe no one forced this person to sign the paper. I believe no one talked this person into signing this paper. This person understands what will happen because they signed this paper. I am not related to this person by blood, marriage or adoption. I will not get any of their estate when they die. I am not the person this paper makes the attorney in fact. I am not the attending doctors. I do not work for the doctor or a health facility where the person signing this paper is a patient. I do not now have a claim against any of this person’s estate when they die.

__________________________________________ ____________________________________________

Signature of Witness                                          Signature of Witness

Date: ______________                                         Date: ______________

STATE OF ________________________

COUNTY OF _______________________

Subscribed, sworn to and acknowledged before me by ____________________________________, the principal, and subscribed and sworn to before me by ____________________________________ and ____________________________________, witnesses, this _____ day of ______________, 20___.   

___________________________________________ My commission expires: ________________

Photo credit:  Brykmantra

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