Understanding the Role of a Health Care or Medical Power of Attorney

For all of our estate and asset protection clients, we will ensure that they have a quality Durable Power of Attorney for Health Care (in addition to one for financial matters, but that’s for a different post!). Many people don’t fully understand exactly how this document is intended to function when a medical emergency pops up. There are actually four different facets of this document and each has a slightly different purpose:

1. The Designation of Health Care Agent(s) — This is you telling the doctor/hospital who you want to speak on your behalf when you can no longer do so. Typically, there is a succession order of agents. An example would be for the husband to appoint the wife as #1 agent, and then down through the kids, in order of age. In this example, the youngest child would only get to direct care in the event that the wife and all of the older children were unable to serve. This does not mean that the family would not consult with the youngest child, but only the serving health care agent (the wife, in my example) gets the official “vote.”
2. Living Will — This is the earliest form of end-of-life decision making, and only answered the question as to whether or not it is ever permissible to remove or withhold artificial nutrition and hydration (a feeding tube). While this is still an important part of health care decision making, it has faded in its level of importance by the usage of Health Care Agents and the Health Care directive.
3. Health Care Directive — This is designed to be a set of general instructions for your agent to know what your wishes are if (A) you can’t make your own decisions and (B) you have some terminal illness that cannot be cured, such as a comatose state, advanced dementia, Parkinson’s, brain injury, cancer, etc. It is very common that people answer the health care directives to basically say “If you can’t cure me, stop treating me and let me go—I don’t want to live in a bed somewhere with no hope of ever getting out.”
4. Instructions on Dispositions of Remains and Anatomical Gifts — This is actually the only part of this document that has any effect after the moment that you pass away. This is necessary because we can’t fully plan for every contingency (for example, if you want to donate your body to science, but science doesn’t want you). At that point, we need to have someone who can make an alternate plan or carry out your desired wishes.

One of the challenges in decision making for someone else is that it is impossible to know exactly what the future holds—particularly if we are doing a document for someone that may live for several more decades. People will generally go to greater lengths to stay alive if they are in their 50s than someone who is 90. Treatments that are now considered routine were not available, not very pleasant, or not very effective 10+ years ago. Since we can’t know what the future holds, it is better to give your agent the ultimate say. They will be able to assess the situation at hand, and using the guidance that you gave to them, can make a more informed decision than it would ever be possible to try to forecast every conceivable medical scenario that might present itself.

Why do I still have to fill out a DNR when I go to the hospital? 

The health care directive looks very similar to a DNR (Do Not Resuscitate) order. People are often confused why both documents are necessary. This can be easy to understand when you are supposed to have surgery in 30 minutes and you have one more piece of paperwork handed to you at a time where you don’t really need any more anxiety! However, these documents do serve different purposes. The health care power of attorney, and the health care directive included in it, is so that the hospital will know who to talk to, and also help the agent follow your wishes. But the decisions that the health care agent will need to make (such as discontinuing life support) are typically not overly time sensitive, meaning that the agent could take hours, or even a day or more, to ultimately make the best decision for you. The DNR is designed to tell the treating doctors and nurses what you want them to do right at that moment if something goes wrong. As an example, if you are having surgery, and your heart starts to fail, a decision as to whether or not to try CPR must be made immediately. There is no time to really even look at the power of attorney, much less find that person, explain the situation, and have them direct the care team as to what you might want. The DNR tells them before the problem pops up what they are to do/not do for you. Like mentioned before, the 50 year old is probably going to tell them to try CPR and see if they can save that person. Many of my clients in their 80s and 90s won’t want them to try because of the lower likelihood of success and the more rigorous physical toll it might take on them. As with all medical decision making, the choice is individual, and what is right for you might not be right for me and vice versa.

Who should I pick as my health care agent?

Most people pick a family member. In a perfect world, it would not matter what family member is picked, because this is really going to be a team decision. In my opinion, the perfect health care agent is someone who is able to deal well with stress (because this is going to be a stressful situation), but also is good at listening to others who may be emotional, and building a consensus as to the best path forward. Unfortunately, end-of-life decision making can have a high potential for family conflict. In a typical situation, all of the family members are legitimately interested in a good outcome for their parent/child/sibling/spouse. However, these decisions are often not as black and white as we might hope. Many times, the decision seems much easier to make in hindsight than in the heat of the moment. Your ideal candidate is someone who is respectful of differing viewpoints, and who takes everyone’s feelings into appropriate consideration, but at the end of the day is able to make a tough decision.

If you don’t have a perfectly ideal candidate (and most families don’t have one), then you have to try to get as close to perfect as your family situation allows. Again, having someone who does a good job interacting with people in conflict is a very important trait. But keep in mind that this person is going to likely want to have an ongoing relationship with your family after you are gone. That’s why being able to use the information in the health care directive is so valuable to be able to show all of the family that the agent is only trying to carry out your wishes. With that in mind, it is also valuable to contemplate how difficult it will be for your agent to carry out your wishes if they don’t personally agree with your views on end-of-life decision making.