A Health Care Power of Attorney, also known as a Medical Power of Attorney, is a document that appoints an individual, known as your agent, to ensure your medical wishes are honored if you become incapacitated and unable to do so yourself. This document is different from a Living Will, which only dictates your wishes regarding medical care in an end-of-life situation.
Benefits of a Health Care Power of Attorney
A Medical Power of Attorney is an advance care directive that allows you to name the agent you trust to make medical decisions for you. To that end, it is important to discuss your wishes with your chosen agent, as well as your physician and family.
A properly prepared Health Care Power of Attorney protects you, and your family, from the time, stress, and expense of a Guardianship proceeding. In a Guardianship proceeding, the court chooses the person Arizona law dictates should make your healthcare decisions in the event you become incapacitated. Your personal wishes have no part in this proceeding. This is a costly and stressful experience for your family; however, it is easily avoidable if you create an advance care directive.
Without a Health Care Power of Attorney, the court may appoint a guardian in the following order:
- Your spouse, unless you are legally separated
- An adult child
- Your parent
- Any relative with whom you have resided for more than six months prior to filing the petition for guardianship
- The nominee of a person who is caring for or paying benefits to the incapacitated person
- Department of veteran’s Services if you are a veteran, spouse of a veteran or minor child of a veteran
- A private or public licensed fiduciary
Legal Requirements in Arizona
To create a valid Health Care Power of Attorney, you must be 18 years of age or older and of sound mind. This means that, at the time of signing, you understand what the document means, what it contains, and how it works. The stipulations of your Medical Power of Attorney take effect only in the event you cannot communicate your wishes, a physician determines you cannot give informed consent, or you have been legally determined incapacitated.
Living Will vs. Health Care Power of Attorney
A Living Will is a type of advance care directive that dictates your end-of-life medical care preferences in the event you are in an irreversible coma, persistent vegetative state, or have a terminal condition and are at the end of your life. It does not have the broad application a Health Care Power of Attorney does.
You may choose to have both a Living Will and a Health Care Power of Attorney. An experienced estate-planning attorney can advise you on creating these important documents.
Who Should Have a Health Care or Medical Power of Attorney
Illness, tragedy, or accident may strike at any time; youth does not protect us from these unfortunate facts of life. Parents of college-aged children too often discover they have no authority in their child’s medical care. Any adult over the age of 18 should have a Health Care Power of Attorney, drawn up while he or she still enjoys good health.
Healthcare Powers Of Attorney Problems
Interviewer: Becky, what problems are you seeing with Healthcare Powers of Attorney?
Becky Cholewka: Healthcare Powers of Attorney, we are seeing some problems with those as well. Again, these are state-specific documents. For example, here at the Mayo Clinic in Arizona their legal department is in another state but they are relying on their legal department’s interpretation of documents. Our Arizona laws they’re saying, “Well, it doesn’t matter. That it doesn’t comply with our laws from our legal department is saying.” That’s a problem.
So, we actually went to the Mayo Clinic and worked with their legal department to see what type of language they actually need to see in our Arizona documents for them to accept them here in Arizona. As a wealth council attorney we’ve actually incorporated all of those into our own documents so that they work.
That’s the whole point of estate planning anyway. These documents need to work. If they’re just a piece of paper and they don’t work, that’s not really a solution for our clients.