What’s Medical Power of Attorney? How Do You Get It?

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Attorney, distinguished law professor

Many people understand how important it is to have certain legal instruments as part of your end-of-life or estate plan. For most people, these include a last will and testament, revocable living trust, life insurance policy, retirement savings plan, and a joint ownership title.

In all of these instruments, you designate a beneficiary to receive certain property so that everyone knows what you want to happen with your property when you die. You must use these legal tools while you are still alive and able to state your wishes, as is true with medical power of attorney.

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If you do not have one of these tools to do that, then someone else — the state — will make your decisions for you. The state does this by applying its “intestate” laws, which apply to people who die without a will or other instrument in which they state what they want to have happen to their property.

However, not many people understand that the same process applies to decisions about your medical care. What happens when questions arise about your medical treatment? You may not be able to state your wishes because you are:

  • Dead
  • Incapacitated
  • Unconscious

It’s equally important to have the appropriate documents in place for telling a doctor what you want to happen. A living will is one tool that you can use. Another is something called a medical power of attorney.

What is a Medical Power of Attorney?

A medical power of attorney, also known as a health care proxy, is a legal document in which you authorize a person to make your medical decisions for you when you become incapacitated.

A medical power of attorney is different from a living will because in a living will, you expressly state your wishes with regard to specific medical issues and procedures. For example, in a living will, you might state:

  • Whether, or for how long, you want your doctor to take life-sustaining measures to keep you alive when you are irreversibly brain dead. Life-sustaining measures typically include:
    • Tube feeding
    • Mechanical ventilation
    • Resuscitation (CPR)
  • Whether you want your doctor to provide all reasonable, available pain relief in your treatment, even if it may hasten your death.
  • Whether you want to donate organs.
  • Whether you want to be buried or cremated.

However, with medical power of attorney, you authorize an agent to make these or other medical decisions for you. You may appoint an agent in your medical power of attorney to make any medical decisions regarding nutrition, ventilation, or resuscitation.

If these medical issues arise while you are incapacitated, your agent could make these decisions for you according to what your agent believes your wishes would be. However, your agent could not make other medical decisions on your behalf. Your agent’s power is limited to only the decisions you authorize.

If you create a medical power attorney and authorize your agent to make any and all medical decisions for you, your agent would have broad discretion to make any medical decisions, even ones that you did not anticipate or discuss.

For example, if, during an operation to reset a broken bone, your doctor unexpectedly discovers a condition, that, in order to save your life, they must amputate your leg. If you have not discussed the issue of amputation with your doctor or your agent, your medical power of attorney nevertheless would authorize your agent to make that decision for you.   

However, just as with wills for transferring property, if you are incapacitated and do not have a medical power of attorney in place when the time comes for a doctor to decide what to do about your medical treatment, the state will apply its laws to allow someone else to make your decisions for you.

If this is not what you want to happen, then you must create a medical power of attorney while you have the capacity to do it. 

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How Do You Get a Medical Power of Attorney for Yourself? 

State your wishes in a medical power of attorney form to get a medical power of attorney for yourself. Provide the following information:

  • Your name
  • The name and address of the person you want to be your agent for purposes of making health care decisions on your behalf 
  • Any limitations you want to place on your agent or decisions that you do not want your agent to be able to make for you
  • The name and address of any alternate agents you want to serve as your agent if your primary agent is unable or unwilling to make decisions for you
  • The name and address of the person who holds the original signed version of your medical power of attorney (this will normally be your agent)
  • The names and addresses of everyone to whom you provided a copy of your medical power of attorney
  • The duration of how long you want your medical power of attorney to last or when you want it to terminate 

Once you complete the appropriate form, you must sign the form in the presence of a notary public or in the presence of two qualified witnesses, depending on what your state requires. 

How to Find Medical Power of Attorney Forms for Your State

Every state has its own form for a medical power of attorney that satisfies the requirements of that state for having a legally binding power of attorney. Every state’s form is different from the forms required in other states, so it is important that you use the form that is required in the state where you live.

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Medical Power of Attorney FAQs

Because every state has its own rules for a medical power of attorney and its own form that satisfies those rules, you may find that there is no uniformity among the states on some issues, but uniformity on others.

This can be confusing if you have a power of attorney for yourself and then relocate to another state in which you want a medical power of attorney to be effective. The best solution is always to fill out a new form for your new state.

Here are some other common questions that people often have when they think about having a medical power of attorney.  

How long is a medical power of attorney good for?

As long as you want it to be. Unless you provide otherwise, your medical power of attorney will last indefinitely, from the moment you become incapacitated until any of the following:

  • You designate in the medical power of attorney a date, or the occurrence of an event, upon which you want your agent’s authority or your medical power of attorney to end.
  • You terminate your power of attorney by expressly revoking it with your agent or your healthcare provider.
Who makes medical decisions if there is no power of attorney?

If you do not have a living will or medical power of attorney, then someone else will be appointed to make your decisions for you. This will be one of the following:

  • A legal guardian that the probate court appoints.
  • A surrogate decision-maker from classes of persons prioritized according to the laws of the state. These typically include:
    • Spouse
    • Parent
    • Adult child
    • Close blood relative
    • An “interested person” (distant relative or close friend who demonstrates care or concern or who the attending physician determines would serve as an effective surrogate) 
  • A hospital ethics committee
  • Your medical care provider (unless prohibited by state law)
  • The probate court

If you do not want someone who fits into one of these classes of persons being the one who makes your medical decisions for you, then you need to create a medical power of attorney. 

How do you obtain medical power of attorney for someone else?

To obtain a medical power of attorney of someone else, like a parent, that person must knowingly and willingly appoint you in a medical power of attorney form appropriate for their state. If named, your authority over the person will be limited to the authority that the person expressed in the power of attorney.

You also could be granted the right to make medical decisions on behalf of another person if you qualify as the default surrogate authorized to make decisions for the incapacitated person under state law.

You also could be granted such authority by a parent of a child who is in your care when the parent is not available to make medical decisions for the child.

How does medical power of attorney work for children?

If there is at least one parent who is available to make medical decisions on behalf of a child, then a medical power of attorney is not necessary.

However, if a parent temporarily places a child in the care and custody of another person because the parent will be unavailable for any length of time, medical power of attorney for the child may be necessary if the caretaker has to:

  • Authorize medical care or treatment for the child
  • Access the medical records of the child
  • Obtain medicine for the child
  • Make any health care decision for the child

Even if a third party is designated as an agent of a child in a medical power of attorney and that power of attorney is effective, a parent who has not surrendered legal custody of a child always has the right to make medical decisions on behalf of their child. The authority temporarily granted to a third-party agent will never defeat the medical decisions of a parent.

Unlike a medical power of attorney, however, a parent will lose all medical decision-making authority over a child if the court appoints a legal guardian for the child. The legal guardian assumes legal custody of the child, whereas an agent of a medical power of attorney does not.

As with any medical power of attorney, the authority of the agent terminates upon the death of the patient.  

A Medical Power of Attorney May Be the Most Important Legal Document You Sign 

Most people do not like to surrender control of their autonomy in decision-making unless they have to and prefer to do so to someone they know and trust. However, if you suffer injuries in an accident or develop symptoms of any form of mental disability that prevents you from being able to make medical decisions for yourself, you may not be able to do this.

If you have not prepared a medical power of attorney, state law may require that you surrender your ability to make medical decisions for yourself to someone you have not chosen for yourself, possibly even someone you don’t know.

To be sure that you will always maintain some degree of control in the medical decisions that affect your health and your life, execute a medical power of attorney now. Once you have one, you can always revoke it or name someone else as your agent if your circumstances change.

But if you become incapacitated before you have one, it is too late. The decision to have a medical power of attorney may be the most important and empowering decision you ever make for yourself.

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