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 decisions are made 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.
A Healthcare 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 that 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:
To create a valid Health Care Power of Attorney you must be 18 years of age or older, of sound mind and not under duress. The stipulations of your 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.
It must be witnessed or notarized by someone who is not designated to make medical decisions for you, not directly involved with your medical care, not related by blood, marriage or adoption, and not entitled to any part of your estate.
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.
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.
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 (WealthCounsel attorneys) 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 WealthCounsel 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.
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. In Arizona, we also have a mental 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.
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.
Yes, there is, especially if you choose poorly when selecting your agent. The person you choose has legal access to any property authorized in the POA, as well as the ability to make medical decisions on your behalf. If this person makes foolish decisions or takes off with your money, you have little legal recourse.
Yes. If you never gave the agent the POA, you only need to destroy the document (as long as you also never gave it to any institutions, such as a hospital).
If you already gave the POA to the agent or an institution, work with your attorney to create a revocation document, which becomes effective once it is signed and notarized. Afterward, give copies of the revocation to anyone who had the original POA. If you filed the original POA with the County Recorder, you must also file the revocation.
You may want to re-execute your POA occasionally (every five years or so), even if you experience no changes. You definitely want to review it every few years, just to make sure it still represents your wishes and is legally up-to-date.
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