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The Plain English Attorney

What is a Health Care Power of Attorney and what can it do for me?

A Health Care Power of Attorney, also called a Health Care Proxy in many states, empowers someone else to make health decisions for you if you are unable to communicate your own wishes. This generally covers instances where you are unconscious and a decision is needed regarding surgery or other treatment. Health Care Power of Attorney documents complement Living Wills in making sure your health care decisions are made by specific people you choose, in the order of your choosing, so doctors have specific people to turn to for a decision. The last decision of withholding or giving life support is made in advance by you in a Living Will. For more information on a Living Will, please refer to Living Wills.

Far too many times a doctor is stuck waiting for the closest living family members to agree on a decision. The patient may also not want a particular person to be making such decisions, but they never took the time to put it in writing. A wife may consider her husband too emotional and unable to make such decisions, so she would prefer her brother to decide for her. Or a husband may trust his wife’s judgment but would want a friend to make health care decisions if the wife is unavailable and have the decision be made by his mother. A Health Care Power of Attorney can prevent these kinds of issues before they come up.

In short, you appoint the people you would want to make health care decisions for you if you were unable to make them yourself or if you were unable to communicate these wishes. The doctor is bound to follow the legitimate orders of your Health Care Proxy even if the “next of kin” disagrees with the decision.

What does a Health Care Power of Attorney not do?

What a Health Care Power of Attorney does is simple to explain. However, it is also important to explain what it does not do. Far too many people have the wrong idea of what a healthcare power of attorney does, and they consequently avoid this document because they wish to maintain control over their own healthcare decisions.

First, a Health Care Power of Attorney does not sign away your own rights to make medical decisions for yourself. As long as you are competent and able to communicate your wishes, then you make those decisions. It is only if you are incapable of handling decisions yourself that a health care power of attorney takes effect, and that must be determined by two attending physicians.

Next, your spouse and other close family members do not have the authority to veto your appointments. It is a myth that family members can step in and nullify a healthcare agent’s decisions just because they are related to you. If a doctor in North Carolina has done this to someone you know and not obeyed a properly executed health care power of attorney, then that doctor has broken the law. State laws protect your interest in appointing a health care agent specifically because the state realizes that you may not want your closest family members making medical decisions for you. After all, you know your family, and you would best understand how they would react in a medical crisis. It is then up to you to get a health care power of attorney or simply do nothing and allow your closest family members to make decisions for you. However, make no mistake about it–if you do nothing, then fighting siblings, arguing adult children, and a close relative you have not seen in years may be the ones making medical decisions for you.

Lastly (at least for this discussion), your healthcare power of attorney does not make your healthcare agent liable for your medical bills. Regardless of the treatment you receive at the direction of your healthcare agent, you (and/or your health insurance company under the terms of their contract with you) are still primarily responsible for the payment of medical bills. For this reason, many of the state-approved Health Care Power of Attorney forms and healthcare proxy forms specifically release the healthcare agent from any liability, financially and legally, for their decisions on your behalf. After all, in making a health care power of attorney, you are appointing people that will make decisions for you the way you would if you were capable of communicating them. Just because they made the decisions for you does not mean that they now have to pay the tab.

If you have any questions or would like for our firm to assist you with a Health Care Power of Attorney and other estate planning needs, then please contact our office at (919) 844-7993. 

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