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Don’t Forget the Health Care Power of Attorney

Summary:
The mention of estate planning usually evokes thoughts of a will or trust. But there are other documents that should always be part of any estate planning package, such as a living will, a durable power of attorney, and a health care power of attorney. Planning for the distribution of your assets after you’re gone is certainly important. But what happens if you become incapacitated and can’t care for yourself or make decisions about your health and the treatments you need? That’s why a Health Care Power of Attorney (HCPOA) should always be included in your estate planning. Brad Henry is an estate and elder law attorney at Strauss Attorneys PLLC. Here is his primer on HCPOAs. The Health Care Power of Attorney (HCPOA) is a document where the client appoints someone else to make medical

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The mention of estate planning usually evokes thoughts of a will or trust. But there are other documents that should always be part of any estate planning package, such as a living will, a durable power of attorney, and a health care power of attorney.

Planning for the distribution of your assets after you’re gone is certainly important. But what happens if you become incapacitated and can’t care for yourself or make decisions about your health and the treatments you need? That’s why a Health Care Power of Attorney (HCPOA) should always be included in your estate planning.

Brad Henry is an estate and elder law attorney at Strauss Attorneys PLLC. Here is his primer on HCPOAs.

The Health Care Power of Attorney (HCPOA) is a document where the client appoints someone else to make medical decisions for the client if he or she is no longer able to. For example, if a client is injured in a car accident and cannot direct a doctor as to their care, then the person appointed in the HCPOA will make those decisions. In other words, the doctor is going to turn to the person appointed and ask him or her what the doctor should or should not do in a given situation.

The person you appoint has broad authority over your medical care. For example, he or she can direct your doctors to withhold or withdraw life-prolonging measures, or tell your doctors to withhold artificial feeding and hydration. Another example is the person could decide whether the doctors perform surgery. Or, the person may need to make decisions regarding medication.

The HCPOA is only effective when and if the client is no longer able to make medical decisions for himself or herself. If the client can direct the doctor, the HCPOA is dormant, so to speak. Once the client cannot direct the doctor, it ‘wakes up’ or ‘springs to life’, and then the person appointed can direct the doctor or other medical professionals.

Although clients will often appoint more than one person to serve on their Durable Power of Attorney, we tend to discourage that in a HCPOA for the simple reason that the doctor needs one person, sometimes in an emergency, to take direction from. That said, it is possible to appoint multiple people and allow them to act independently of the other; however, if the client chooses that, there is the danger that they may not agree. If that happened, precious time could be lost and there may be paralysis over simple, necessary care.

For that reason, we often suggest a person who is geographically closest to the client. Sometimes that is not possible. And it’s okay. But a person is often better than a phone.

Also, it is important to think carefully about who you would appoint. You want to make sure that the person you appoint knows your medical philosophy.

Do they know what you would or wouldn’t want in a given situation? Would they be able to honor your wishes if called upon to act? It is easy to appoint someone on a piece of paper, but you need to imagine this person being asked questions by a doctor. Will he or she be able to stand in your shoes in that situation and do what you would want, or would they substitute their own philosophy for yours?

The HCPOA ends when either the client has regained his or her ability to give medical directions, or when the client dies. For example, if the client has been in a car accident and was unable for a time to make medical decisions then the person appointed in the HCPOA will act. When the client recovers, the person appointed will no longer have any authority to act. The HCPOA will, in a sense, go dormant once again.

There are a few caveats to the above. For example, the person appointed can be given the authority to donate the client’s organs or their body for medical research or authorize an autopsy or cremation. In that sense, their authority to act does continue past the client’s death. But generally speaking, and for most decisions, the person’s authority ends when the client dies.

Plan for your own incapacity. It’s necessary.

 

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