What Is a Medical Power of Attorney, and When Do I Need One?

If you become incapacitated, or otherwise unable to make rational choices, someone else needs to make medical decisions and care for your medical needs. A medical Power of Attorney (medical POA) is a document that allows you to name the person you trust to make these life or death decisions on your behalf.

Every adult over the age of 18 needs a medical Power of Attorney to ensure your wishes are followed. College-aged kids aren’t under their parents guardianship anymore, and have the right to name the person they trust to make health care decisions. Even healthy adults may experience an unexpected illness or have an accident. 

Who Can Create a Medical Power of Attorney Document?

You need to be a competent adult to draft a power of attorney. Be sure to finalize this important document before the onset of mental health issues like dementia or Alzheimer’s, as these conditions may impact validity.

Free Medical Powers of Attorney are available online, and most doctor’s offices and hospitals have a version they provide to new patients. Powers of Attorney signed at a doctor’s office may or may not be effective in other situations – be sure to sign the right kind of Power of Attorney to achieve your specific goals.

Who Can You Name in Your Medical POA?

The person who signs a POA is the principal. The person named in the document who will make decisions is known as the agent, agent for the principal, or attorney-in-fact. Agents must be an adult (18 years or older) and they have the right to disclaim their appointment if they do not feel capable of serving at the time you are incapacitated.

Despite names like attorney-in-fact, the person you name as an agent in your medical POA is not an attorney and will not have unlimited rights to make all decisions for you. Other documents can impact the power of the Agent in a Power of Attorney. A DNR, for instance, or directive in a Living Will, may supersede the decision of an Agent in some circumstances. A trained attorney can guide you through these documents to ensure no discrepancies or conflicts emerge.

Most people name a family member as their medical POA. This person could be an adult child, a parent, a trusted sibling, or another relative. You can also name someone else if you feel that a family member would not be able to make objective decisions or would not follow your wishes.

What Qualifications Does an Agent Need?

You should make sure your agent has the qualities necessary to handle the job:

• Availability. First of all, you should choose someone who is able to be there when needed. Someone may have family or professional commitments that could make it difficult for them to come to a hospital or respond to requests for decisions from physicians.

• Emotional stability. Your agent should be able to make difficult decisions and follow your wishes. If they are grief-stricken by the situation, they might be unwilling to make the necessary choices or think clearly about following your desires.

• Care. The agent should care enough about you and your wishes to make the necessary decisions with proper thought and attentiveness. This is why many people choose family members.

You need to ask the person to be your agent and ensure they understand the nature of the responsibilities before you name them in your medical POA.

When Do You Need a Medical POA?

A medical power of attorney is often associated with decisions made after a catastrophic accident or a life-changing health event, such as a heart attack or stroke. It could also come into force if you are in a coma, sedated, or intubated. Even routine events, such as childbirth, planned surgery, or medical tests may result in a situation where you cannot make decisions.

A medical POA can also cover conditions like Alzheimer's disease or dementia. The principal could still be fully conscious while suffering from one of these conditions, but because they cannot make rational, informed decisions, they need their Agent’s help.

Finally, your agent could be called upon to make decisions when you are under anesthesia during surgery. It can be a good idea to create a medical POA before surgery, even if you are undergoing a routine procedure.

What Decisions Does the agent under a Medical POA Make?

Your chosen agent may have questions about the type of decisions they could have to make:

• Type of care. Doctors may ask your agent to make decisions about surgeries, treatments, medications, and home health services.

• Living situation. An agent could have to decide about putting the principal in a nursing home, assisted-living facility, or memory care unit.

• Provider and Location. The attorney-in-fact in a medical POA could need to decide which physicians you see and where you receive treatment.

• End-of-life care. An agent could decide on the measures doctors take to keep you alive if you lack a living will.

You can also use a living will for end-of-life wishes. A living will outlines your choices in relation to the measures physicians can take to keep you alive. For example, you can use a living will to state that you do not want to be resuscitated if there is no chance of recovery.

How to Create a Medical POA in Centennial, Colorado

The steps you need to create a medical power of attorney document depend on where you live. States can have different rules, but all follow a similar process:

• Choose an agent. Once you have selected someone who you think has the necessary qualities, you need to ask them if they are willing to handle the responsibility.

• Create the document.  Most states have online forms that you can download. Retirement homes, hospitals, skilled nursing facilities, and elder care providers may also provide Medical Powers of Attorney. Be sure whatever forms you use come with complete instructions, or use a qualified attorney to walk you through each decision. You don’t want to put documents in place that aren’t properly filled out or worse, contradict your wishes as stated elsewhere. .

• Notarize the document. Most states require that you sign the document in the presence of a notary public. Others may require one or two witnesses to your signature and capacity to make the decisions. One of the most common mistakes people make is in the incorrect execution of the document, so be sure to have it supervised by someone who knows how to ensure the document is legally binding.

• Secure copies.  You can give copies to your agent and successor Agents so they are ready to be accessed in an emergency. If you do this, be sure to keep a list of who has a copy and be careful that if you sign new documents in the future, the old ones are destroyed. You should keep the original with your other estate planning documents, such as your Will. Online storage, if it is protected and accessible by your Agent, can be a great solution.

You should always keep your medical POA up to date. If your Agent moves, your relationship changes, or they themselves become incapacitated, you will need to choose a new Agent and update your medical POA. 

Contact our law offices in Centennial, Colorado if you would like our professional assistance in creating a medical power of attorney or other incapacity documents.  We would be happy to help you through this process.