Essential legal planning tools for Baby boomers, part IV: the durable power of attorney for healthcare
January 20, 2013
So far in this series of essential planning tools for Baby boomers we have looked at wills, the general durable power of attorney and the directive to physicians.
The fourth tool fits hand in glove with the others: the durable power of attorney for healthcare.
A common circumstance as we grow older is a sudden unexpected illness that renders us unable to communicate with medical providers about critical medical decisions.
Many states have sought to alleviate the difficulty inherent in this situation by creating a tool that allows us to designate someone to act on our behalf to make healthcare decisions.
As I have said in the other posts, you should consult with a local attorney when you are planning for the future because the laws of each state vary. What is available in one state may not be available in another.
It would be easy to conclude that if you had executed a general durable power of attorney already that it would cover healthcare choices.
This is not a safe assumption. The reason is that many states have built safeguards for the patient into the procedure required to execute the durable power of attorney for healthcare. For instance, some states place restrictions on the class of persons who can serve as witnesses to the document. In those states, it is often the case that any representative of a medical provider cannot serve as a witness.
This restriction is to ensure that a representative of a healthcare institution where a person is receiving care is not the one authorized to make healthcare decisions. This prevents unscrupulous employees or owners of the healthcare facility from preying on a sick patient when she is least able to defend herself. Although this patient abuse may occur in only a small fraction of cases, it can be devastating when it does occur. If someone outside the confines of the institution must serve as a witness to the patient’s signing of the document, the patient is in control of the process, not the healthcare facility.
The durable power of attorney for healthcare, as its name implies, is durable. This means it will remain in effect even if the patient becomes incapacitated and no longer possesses the mental capacity to make a healthcare choice.
I can’t emphasize enough how important timing and pre-planning are in these circumstances. If a stroke or other sudden illness has already stripped the patient’s mental capacity, it is too late for him to execute the durable power of attorney. He must execute it when he is in his right mind. So this tool, just like the others I have mentioned, must be executed before the patient needs it. Otherwise, the patient’s family may well be faced with having to seek a guardianship for the patient, a procedure that is time consuming, expensive and fraught with unknown difficulties.
So, when you consult with your attorney about essential legal planning tools, please discuss a durable power of attorney for healthcare.
(Stephen Woodfin is an attorney, author and Baby boomer.)