March 2021: Health Care Powers of Attorney
We all have a good idea of what "health care" is... But what is a "power of attorney," and how does that relate to health care?⠀
Definitions! Presuming you can define health care for yourself, I'm going to focus on the "power of attorney" part of this month's featured topic.
Simply put, power of attorney is a document giving someone(s) legal authority to act on your behalf/make decisions for you. This designated someone(s) is often called an agent.⠀
A Health Care Power of Attorney is a document giving someone(s) legal authority to act on your behalf/make decisions for you concerning your health care.⠀
I'm not sick; why do I need an HCPOA?
The best time to make estate plan documents is when you don't need them right now. Making these decisions is hard enough without the added stress and pressure of a health crisis. Your future self will thank you (as will your family and loved ones) for having an HCPOA in place.
What decisions do I need to make for an HCPOA document?
The most important decision is who you want to be named your "health care agent" and a back-up agent. This is the person you want to make medical decisions for you if you can't make them yourself and a back-up in case your first choice person isn't available. Some states (like NC) allow the HCPOA to include Advance Directive/Living Will decisions. These enable you to make advanced decisions about life-preserving medical treatment in specific situations.
My family already knows my wishes; is an HCPOA necessary?
Yes, for two important reasons. (1) Knowing what you want is not the same thing as having the legal authority to ensure your wishes are carried out. An HCPOA gives that legal authority to your selected health care agent. (2) And, state law dictates who gets to make these decisions for you if you can't make them yourself and don't have an HCPOA in place. Those laws don't consider whether the default person knows your wishes, and even if they do - whether they're willing to carry them out.
Can I revoke an HCPOA?
Yes. The best way to accomplish this is by creating a new HCPOA that revokes the old one.⠀
This is too hard to think about. Are there resources to help?
I get it. Really. Check out the work being done by @convoproject - it's really good. Also, many local hospitals and health care systems have HCPOA information and resources on their websites.
Start with the basics. There are state laws and best practices about who can (and can't) be your Health Care Agent:
Plan to choose just one person. The laws on this vary state-to-state but having two people acting as Co-Agents can create more problems than solutions.
Your named Agent must be an adult (although some states differ on what age constitutes "adult").
They cannot be someone who provides medical services to you (doctor, nurse, etc.).
They can be a family member, but they don't have to be.
Then, consider the "job description." If you become unable to make/communicate about your health care decisions, your Health Care Agent assumes responsibility. If you've got someone in mind, here are things to think about:
If they know your wishes, will they follow them?
Would they be able to make quick and/or difficult decisions under changing and challenging circumstances?
Could they stand up for you and the decisions they are making on your behalf (to members of your medical team, your family, your friends)?
Can they deal with your family's dynamics and emotional conflicts?
If they don't live locally, could they handle these responsibilities via phone?
Now - it's time to talk. Set aside time to talk with your preferred Health Care Agent about this before you put their name on the document. Your conversation should cover:
Are they comfortable taking on this role?
Do they understand what it means to be a Health Care Agent? If not, fill them in. There are lots of resources online with good info.
Do they know & understand your wishes? If not, fill them in!
Last but not least, share, share share! Once you've got your Health Care Power of Attorney document in place, your medical team and your family and loved ones need to know about it. This isn't a document to keep hidden away "until you need it."
What are Advance Directives & Living Wills?
We need to talk about you having a medical emergency or being at the very end of your life. And we need to talk about life-preserving measures. I know you don't want to. But, you need to stick with me. Let's get through some vocabulary first.
This particular document goes by several names. In NC, its official name is "Advance Directive for a Natural Death." Find the state statutory form here. For shorthand, I'll refer to it as ADLW.
The ADLW allows you to choose whether or not you want life-preserving measures to prolong your life if 1+ of 3 medical situations apply. "Life-preserving measures" are medical treatments that postpone, but don't prevent, death. Some examples: breathing machines, antibiotics, kidney dialysis, & artificial nutrition &/or hydration.
The medical situations are that you:
have an incurable condition that will result in your death within a short time;
are unconscious with basically no chance of regaining consciousness; &/or
have advanced dementia or other substantial loss of cognitive function with basically no chance of recovering that function.
In the ADLW, you are imagining a future scenario that may never become a reality. But in that scenario - you are in 1+ of those 3 medical situations, & you are unable to make/communicate your wishes about life-preserving measures.
You can give your Health Care Agent (as named in your Health Care Power of Attorney) the responsibility of deciding. Or, if you know what you want (or don't want) - you can make that choice for yourself now.
Why now? Yep, it's hard to think & talk about. But, it's much easier making these decisions when you're not in the midst of a medical crisis.
Why do this at all? Do it for your loved ones. This document will save them from countless hours of worry, second-guessing, stress, & pain. Even if you defer the decision-making to your Health Care Agent. Knowing WHO should decide or WHAT you want takes a burden off everyone else. Do it for them.
Up next for April 2021: Durable General Power of Attorney. Follow along here.