How to Create a Durable Power of Attorney for Healthcare

A durable power of attorney for healthcare is an important legal document that allows you to appoint someone you trust to make medical decisions on your behalf if you become unable to do so. It ensures that your healthcare wishes are respected even when you can’t communicate them yourself. Without this document, doctors or family members may make important medical decisions without fully understanding your preferences.

For trusted legal guidance backed by over 25 years of experience in FDA and healthcare law, work with Cohen Healthcare Law Group. Our seasoned attorneys can help you draft a legally sound durable power of attorney for healthcare and ensure your medical wishes are fully protected. Contact us today to get started.

In this post, we’ll cover what a durable power of attorney for healthcare is, why it’s important, and the key steps to creating one correctly. You’ll also learn about choosing the right healthcare agent, ensuring your document meets state laws, and how to update it as your circumstances change.

What Is a Durable Power of Attorney for Healthcare?

A durable power of attorney for healthcare is a legal document that authorizes another person, called a health care agent or attorney in fact, to make health care decisions for you when you are unable to act on your own behalf. This document remains in effect even if you become incapacitated or lose the ability to make medical decisions due to illness, injury, or age. The agent you appoint should be someone you trust to follow your wishes, communicate effectively with doctors, and ensure you receive the type of medical treatment and care you prefer.

The main difference between a regular power of attorney and a durable power of attorney for healthcare is that a regular POA becomes invalid if you become incapacitated. On the other hand, a durable power continues to give your agent the authority to act on your behalf. There are also durable powers that cover financial affairs or other matters, but a durable power of attorney for healthcare specifically deals with your healthcare needs and medical treatment decisions.

For example, if an individual is in an emergency, the end stages of life, or undergoing complex medical treatment, they may not be of sound mind or physically able to decide what kind of care they want. Without a health care directive or durable power of attorney, loved ones may face the difficult task of guessing your wishes or disagreeing about your treatment. According to the National Institute on Aging, having a durable power of attorney for healthcare increases the likelihood that your medical wishes are honored and provides reassurance to family members that they are making the right decisions for you.

Why You Need a Durable Healthcare POA

A durable power of attorney for healthcare is vital to ensure your medical decisions are made according to your wishes, even when you can’t communicate them. It prevents family conflicts or court interventions by giving clear authority to your chosen agent or health care proxy. This legal document also provides peace of mind for you and your loved ones, knowing that someone you trust is responsible for your care and medical treatment.

Without a durable power of attorney, important health care decisions such as whether to continue life support, authorize surgeries, or decide on end-of-life care may be left to doctors or the court. Real-life cases have shown that when people fail to create and sign such documents, their families often struggle with uncertainty, guilt, or disagreements about what kind of care should be provided.

By putting your durable power of attorney for healthcare in place, you ensure your agent can act immediately in the event of an emergency, manage your medical and financial affairs, and follow your clear instructions. If you need help understanding the forms, state requirements, or how to fill out the documents correctly, it’s wise to discuss your situation with an experienced lawyer who specializes in health care and legal matters related to durable powers.

How Does a Durable POA for Healthcare Work?

A durable power of attorney for healthcare is a key part of advance care planning, which involves preparing for future healthcare needs in case of serious illness, injury, or loss of cognitive function. Simply discussing your preferences with loved ones or guardians is not enough, as formal documents are required to ensure your doctors and family members clearly understand and follow your medical wishes.

Your health care agent has the authority to:

• Make medical decisions and give or withhold consent for procedures and treatments.
• Access your medical records and discuss your care with your doctors.
• Decide on hospital transfers, long-term care, or hospice arrangements.
• Carry out your end-of-life care preferences as stated in your durable power of attorney or living will.

The agent’s authority only applies when you can’t make your own decisions, like after an accident, during a serious illness, or if you’re unconscious. While your agent has broad powers, there are important limitations. These limitations include: 

• They cannot override your explicitly stated wishes in the document.
• They cannot make financial or estate-related decisions unless you also have a durable power of attorney for financial affairs.
• Their authority ends upon your death, at which point your testament or executor takes charge of financial or other matters.

A durable power of attorney for healthcare works alongside a living will, another type of advance directive that details your specific preferences for medical care in emergencies. Together, these documents provide a comprehensive plan for your care, offering guidance and peace of mind to both your loved ones and your health care providers.

How to Create a Durable Power of Attorney for Healthcare Decisions

Working with an experienced lawyer can help you ensure that the document meets your state’s legal requirements, clearly outlines your instructions, and provides peace of mind to your loved ones and doctors. Here’s a step-by-step guide on what to do:

1. Choose Your Healthcare Agent

Pick a trusted person who will act in your best interests and make medical decisions according to your wishes. Consider qualities such as reliability, excellent communication skills, and an understanding of your values and beliefs. You may also appoint alternate agents in case your first choice becomes unavailable or unable to serve.

2. Decide on the Scope of Authority

Determine what powers your health care agent will have, such as consenting to surgery, choosing medical treatments, managing end-of-life care, or making decisions about organ donation. Specify any limits or restrictions, and include clear instructions about your preferences for life support, medications, or other health care interventions.

3. Complete the Legal Form

Obtain your state-specific durable power of attorney for healthcare form. It is best to keep in mind that requirements vary depending on where you live.

Fill in your personal information, along with the details of your agent(s). Be sure to state that the authority is durable, meaning it remains in effect even if you become incapacitated or lose the ability to make decisions.

4. Sign the Document Properly

Most states require you to sign the document in front of witnesses, while some require notarization. Review your state’s laws to ensure you meet all legal standards. Make sure all signatures are valid and correctly dated to prevent potential challenges later on.

5. Communicate Your Decisions

After signing, have an open discussion with your health care agent about your wishes. Explain your medical preferences, what kind of treatment you do or do not want, and how you define quality of life. Also, inform family members about your decision to avoid confusion, disagreement, or conflict during critical moments.

6. Distribute Copies

Provide copies of your durable power of attorney for healthcare to your agent(s), primary doctor, and key family members. Hospitals and care providers should also have access to a copy. Keep one in a safe but accessible location for emergencies, and make sure your agent knows where to find it.

7. Review and Update Regularly

Review your DPOA-HC periodically or after major life events such as marriage, divorce, or a serious health diagnosis. Update the document if your preferences or agents change, and follow the proper legal procedures for revocation or amendment. Keeping your documents current ensures that your wishes continue to reflect your values and circumstances.

Durable Power of Attorney for Healthcare vs. Other Healthcare Documents

A durable power of attorney for healthcare (DPOA-HC) is just one part of a complete plan for managing your medical care and ensuring your wishes are followed if you become unable to make decisions for yourself. However, it’s important to understand how this legal document differs from other advance directives, such as a living will, a healthcare proxy, and HIPAA authorization forms, and how all of them can work together to protect your rights.

A living will outlines your preferences for medical treatment, particularly regarding life-sustaining procedures such as CPR, ventilators, artificial nutrition, or hydration. It tells your doctors and loved ones exactly what kind of care you do or do not want if you are in a terminal condition or permanently unconscious. A durable power of attorney for healthcare, on the other hand, goes a step further by allowing you to appoint a trusted person (your healthcare agent or attorney) to make medical decisions on your behalf in situations not specifically addressed in your living will. While the living will gives instructions, the healthcare proxy grants someone the authority to act and interpret your wishes as circumstances change.

A HIPAA authorization or medical release form is another important document that complements your durable power of attorney for healthcare. It allows your agent, family members, or other designated individuals to access your medical records and communicate with your health care providers. Without it, your doctors and hospitals may be restricted by privacy laws from sharing vital information that could influence your medical decisions. Together, these documents form a powerful framework for advance care planning, ensuring that your health care providers have the guidance and legal permission they need to follow your wishes accurately.

When combined, a living will, a durable power of attorney for healthcare, and a HIPAA authorization provide clarity and protection for both you and your loved ones. The living will expresses your medical care preferences, the DPOA-HC designates someone to make decisions on your behalf, and the HIPAA authorization ensures that your agent can access the necessary information to make informed choices. Having all three documents in place helps prevent confusion, delays, and conflicts during stressful medical situations.

Best Practices for Medical Power of Attorney

To make sure your durable power of attorney for healthcare remains effective and valid, follow these best practices:

• Review Your DPOA-HC Periodically: Revisit your documents every few years or after major life changes such as marriage, divorce, relocation, or a serious illness. Update your agent or instructions as needed.
• Keep Copies Accessible for Medical Providers: Provide your primary doctor, hospital, and agent with copies. Store one at home in a clearly marked folder and consider keeping a digital copy accessible in emergencies.
• Discuss Decisions Openly with Family Members: Talk about your values, health care preferences, and treatment goals with your loved ones to minimize confusion and prevent conflict.
• Choose an Alternate Agent: Designate a backup health care proxy in case your first choice becomes unable or unavailable to serve.
• Ensure Your Agent Understands Their Role: Your agent should know your medical wishes, understand your living will, and be prepared to communicate with your health care providers confidently.
• Work With a Lawyer: Consult an experienced healthcare attorney to make sure your durable power of attorney and other documents meet all state-specific legal requirements and are properly executed.

Stay in Control of Your Healthcare Future

Having a durable power of attorney for healthcare ensures that your medical wishes are honored even if you’re unable to speak for yourself. It’s a vital safeguard that gives you control, peace of mind, and confidence that the right person will make important decisions on your behalf. Planning now helps prevent confusion, stress, and family conflict later on.

Don’t wait until it’s too late to protect your healthcare choices. Our experienced attorneys at Cohen Healthcare Law Group have over 25 years of experience helping clients create legally sound, personalized healthcare directives. Contact us now! 

FAQ

Below are some answers to help you make informed decisions about your healthcare planning:

What Is a Durable Power of Attorney in Medical Terms?

A durable power of attorney for healthcare is a legal document that allows you to appoint someone to make medical decisions on your behalf if you’re unable to do so. The “durable” part means it remains effective even if you become incapacitated.

Where to Get Medical Power of Attorney Forms?

You can obtain medical power of attorney forms from your state’s health department website, legal aid organizations, or a licensed attorney. Working with a healthcare attorney ensures the document meets state-specific legal requirements.

What Is the Difference Between a POA and a Healthcare POA?

A general power of attorney covers financial or legal matters, while a healthcare POA specifically deals with medical decisions. The healthcare POA activates when you’re unable to make healthcare decisions yourself.

Can a Doctor Be a Medical POA?

In most cases, a doctor cannot serve as your medical power of attorney unless they are a close family member. This prevents conflicts of interest and ensures unbiased decision-making.

What Are the Disadvantages of a Durable Power of Attorney?

One potential disadvantage is the risk of appointing someone who may not act in your best interest. Additionally, unclear or incomplete instructions can lead to disputes among family members or medical providers.

How Much Does It Cost to Have a Durable Power of Attorney?

Costs vary by state and legal assistance, typically ranging from $100 to $500 when prepared by an attorney. Free or low-cost forms are available online, but legal guidance ensures accuracy and validity.

How Does a Durable Power of Attorney for Health Care Differ From a Living Will?

A durable power of attorney for healthcare names a person to make medical decisions for you, while a living will outlines your specific treatment preferences. Together, they provide a complete plan for your healthcare wishes.