How to Supersede a Medical Power of Attorney

By Jim Thomas

A power of attorney, or POA, for medical purposes allows you to authorize a friend or relative to make medical decisions for you if you become incapacitated. The health care instructions themselves are detailed in a living will, which specifies what treatments you do or do not want. The person who holds the medical POA, called the agent, is required to act in good faith when carrying out your wishes. For example, if you want to be taken off life support machines at the end of life, a statement to that effect in a living will requires your agent and health care professionals to honor those directives in almost all circumstances. However, the medical POA can be superseded and the power of your agent overridden in a few situations.

A power of attorney, or POA, for medical purposes allows you to authorize a friend or relative to make medical decisions for you if you become incapacitated. The health care instructions themselves are detailed in a living will, which specifies what treatments you do or do not want. The person who holds the medical POA, called the agent, is required to act in good faith when carrying out your wishes. For example, if you want to be taken off life support machines at the end of life, a statement to that effect in a living will requires your agent and health care professionals to honor those directives in almost all circumstances. However, the medical POA can be superseded and the power of your agent overridden in a few situations.

Living Wills

A power of attorney for health care and a living will are two separate legal documents, although they operate together and usually are referred to as advance directives. Both documents are governed by state law. Although the main provisions are largely the same, the technical requirements for these documents may vary. Health care personnel are required to treat your advance directives as valid, unless there is substantial evidence to doubt their authenticity. If the legal requirements for an advance directive are not met, the document could be challenged in court and voided.

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Patient

The person who has drawn up the medical POA and living will has the power to supersede the documents. For example, Texas law gives the patient the authority to override or revoke the medical POA and living will at any time. In California, you can orally designate someone to be your agent to make health care decisions for you by informing the supervising health care provider who is treating you. The oral designation will supersede any previously written directive. Similarly, if there are two advance directives, the most recent one trumps the earlier one.

Health Care Provider

State laws usually give health care professionals a way to supersede a medical POA when the instructions from a patient's agent clash with their conscience or with the policy of a hospital or other medical facility. In California, a doctor may refuse to comply if he believes the agent is requesting care that isn't medically effective or in compliance with generally accepted medical standards. In such cases, the patient and agent must be immediately informed and all reasonable efforts must be made to place the patient in another facility that will honor the advance directive.

Special Circumstances

Some states go farther than others in carving out exceptions that supersede a medical POA. In Wisconsin, your agent can ask a doctor to remove a feeding tube if so specified in the advance directive, but the doctor can override the advance directive if he believes the removal will be painful or increase the patient's discomfort. In addition, your agent can't ask that orally-ingested food and water be withheld unless it is medically contraindicated.

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Medical Situations That Require a Durable Power of Attorney for Health Care

References

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Medical Power of Attorney Explanation

When you are competent to make your own medical decisions, your health care providers rely on you to help determine what treatments are best for you. But if you become unable to make your own health care decisions, the person you name in a health care power of attorney will work with health care providers in your stead. For example, if you name your sister as the agent to make your medical decisions in case you become incompetent, she will direct your medical care if you later develop dementia that makes you incapable of making your own health care decisions.

Advanced Medical Directives in New Jersey

Aging and illness can affect your ability to make important medical decisions. For this reason, New Jersey allows you to delegate decision-making authority to another person in the event that you become incapacitated. The state also allows you to draft specific end-of-life instructions, which help ensure your religious or personal beliefs are honored. These documents are referred to as advance health care directives and are valid in New Jersey, provided they meet certain formalities.

Durable Power of Attorney and HIPAA

The federal Health Insurance Portability and Accountability Act of 1996, commonly known as "HIPAA," provides that a physician may not disclose a patient’s condition or the circumstances surrounding the patient’s care to a third party, with limited exceptions. This rule is designed to protect confidentiality; therefore, some doctors may be unwilling to share information about a patient's health, even if the patient designated an agent for health care under a durable power of attorney. As a result, your agent might be unable to act in your best interests. To guard against this possibility, include language in your durable power of attorney document that waives HIPAA confidentiality rights.

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