The Responsibilities of Medical Durable Power of Attorney for the Elderly

By Heather Frances J.D.

If a person becomes incapacitated, perhaps because of a mental illness like dementia, he can no longer make health care decisions for himself as he once did. If he created a durable medical power of attorney, he named an agent to make his health care decisions if and when he becomes unable to do so and this agent is responsible for following his wishes closely and acting in his best interests.

Durable Medical Power of Attorney

The person who creates and signs the durable medical power of attorney is called the principal, while the person who is given the power to act on the principal's behalf is generally called the health care agent or proxy. A durable medical power of attorney gives the health care agent broad power and responsibility to make decisions regarding the principal’s medical treatment, including medication, tests, nourishment and hydration, as well as decisions regarding surgery, doctors, hospitals and rehabilitation facilities. However, the principal can limit the agent’s authority and responsibilities by including specific limitations in the document itself.

Creating an Effective Document

A principal must be of sound mind when he creates and signs the durable medical power of attorney; thus, it must be signed before the principal becomes incapacitated. Once signed, the agent can only use the power of attorney when the principal is incapacitated, since the agent has no authority prior to the principal’s incapacitation. Depending on state law, before the agent can act, licensed physicians may have to provide written certification that the principal is incapacitated. If, after incapacity, the principal regains his ability to make decisions for himself and is no longer incapacitated, the agent cannot continue to act on his behalf, so the agent has a responsibility to ensure he knows if and when the principal is incapacitated.

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Agent’s Actions

When an agent acts on a principal’s behalf, she must act with care, competence and diligence. Ultimately, she must have the principal’s best interests at heart. Often, a principal will have a living will or health care directive in addition to his durable medical power of attorney, and the living will or directive helps guide the agent’s decisions. Agents must abide by the directions in a principal’s living will or health care directive. Living wills and directives may spell out the types of medical treatments and life-sustaining measures the principal wants or doesn’t want. For example, a principal’s living will might note that he doesn’t want to go on a respirator or dialysis. A principal may also have a Do Not Resuscitate, or DNR, order, sometimes as part of a living will. If so, the health care agent must ensure the principal’s physicians are aware of this order.

Differences Between States

All health care directives, living wills and durable medical powers of attorney must comply with state law. Some states have specific laws governing end-of-life decisions, such as a requirement that an agent must receive a second doctor’s opinion before refusing life-sustaining treatment for the principal. Emergency medical technicians often cannot honor living wills or medical powers of attorney. Not all states will honor a medical power of attorney or living will issued in another state, though many will honor such documents if they are valid under that respective state’s laws.

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References

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