Durable health care POA’s can be utilized to assign another person, or lawful agent, power of substitution for health and personal care decision making for you if you become unable to understand or communicate.
While most people think of a will when they think of estate planning, other estate planning tools including a durable health care POA are often considered equally or more important. A will comes into effect after you die. A durable health care POA on the other hand, is a tool that can be used while you are living, but ceases to be valid after you die. In general terms, a durable health care POA provides a tool for you to identify health care treatment instructions, and who you want to manage your instructions and decisions, if you become unable to understand or communicate and need assistance while you are living.
If you are making a valid durable health care POA, you are considered the principal. The person that you assign to manage your health care decisions, if needed, is considered the agent. You can also name alternate agents in your durable health care POA in case your named agent is unable or unwilling to serve as agent for any reason. Typically the principal utilizes a durable health care POA to only grant authority to the agent if the principal becomes unable to understand or communicate health care decisions. However, the principal also has broad powers to grant authority to the agent immediately and without any conditions. Typically the principal also makes a durable heath care POA instead of a non-durable heath care power of attorney. A durable health care POA is typically defined to remain in effect if the principal becomes incapacitated, and to remain in effect until death or revocation. Alternatively, a non-durable health care POA is typically defined to only be valid for a set period of time, or for a specific event.
The principal has the ability to grant or limit authority of the agent. Authority granted can include authorization to health care providers to disclose mental and physical health care information and records to the agent. This authorization should also be accompanied by a health insurance portability and accountability act (HIPAA) release form, granting authorization for medical information to be shared with the agent. Durable heath care POA authority granted by the principal to the agent can include decisions regarding medical care, surgery, medical procedures, hospitalization, convalescent care, rehabilitation decisions, recreational activities, companionship, to pick up prescriptions ordered by doctors, feeding tube nutrition and hydration decisions, admission to or discharge from medical, nursing, or residential facilities, hospice and/or palliative care, to arrange for the involvement of religious clergy or spiritual leaders or to provide for spiritual and religious needs, and to take legal action necessary to carry out the principal’s directions.
A durable health care POA can also grant authority to the agent to obtain records and make decisions for the principal regarding psychiatric care, and to arrange for any hospitalization, institutionalization or private psychological or psychiatric care that may be required. However, a combined mental health care declaration and mental health power of attorney is recommended to provide more detailed instructions on mental health decisions. For more information on a combined mental health care declaration and mental health power of attorney, visit the combined mental health care declaration and mental health power of attorney page at MentchLaw.com.
A durable health care POA can also grant authority to the agent to make certain end of life, and life-prolonging decisions for the principal. Authority can also be granted for decisions and signatures related to a do-not-resuscitate (DNR) order, including an out-of hospital DNR order. However, a living will is also recommended to provide more detailed instructions on end of life and life-prolonging decisions. For more information on a living will, visit the living will page at MentchLaw.com.
Incapacitation may include Alzheimer’s and dementia. However, a durable health care POA is not just for elders or part of elder law estate planning, as accidents, disease, and incapacitation can strike young people as well as senior citizens. Incapacitated people may end up in a hospital for an extended stay, in a rehabilitation hospital, in an assisted living home, or with home nursing care or nursing home caregiving. A durable health care POA allows the principal to designate an agent and grant or limit the agent’s powers, while the principal is healthy and of sound mind. Without a durable health care POA, it can be difficult and time consuming for loved ones to get authority to make certain health care decisions for the principal. However, a durable health care power of attorney can not only provide guidance as to your wishes and who your agent is to be, but it can also serve to help relieve stress and emotional decisions form loved ones.
Attorney Kirk E. Mentch, Esquire