The Health Care Power of Attorney
A durable power of attorney for health care allows one person (the principal) to appoint another person (the agent) to make health care decisions on behalf of the principal. Part of the form which if signed by the principal allows the agent to consider relief of suffering in determining whether or not to disconnect life support.
A well-drafted power should say that as to the agent, the principal waives his or her privacy rights under a federal law called HIPPA. This allows doctors and hospitals to talk to the agent and to reveal information to the agent without worrying that they are violating the principal’s privacy rights.
There is a section of the power which the principal can sign and which says that the principal wants the agent’s authority to begin immediately. Many principals would prefer that the agent’s authority only begin when the principal later becomes incapacitated. Many doctors will only honor the health power if the line making it effective immediately has been signed by the principal. They have typically been told by their own attorneys that they (the doctors) should not decide whether or not the paatient is sick enough to be incapacitated, because that is a legal conclusion.
Trustee succession is determined in the case of the trust creator’s incapacity by two doctors letters. The health care power of attorney is the best vehicle for getting those letters from the creator’s doctors.