If you’re approaching the age of eligibility for senior citizen discounts, you’ve probably wondered whether you should get a health care power of attorney. That said, you may even be somewhat unclear on what the term means. This isn’t a topic family and friends talk about frequently, in the way they do politics or how a favorite sports team is faring.
For older adults, a few legal instruments take on outsized importance, particularly in the context of ensuring adequate health care as we age. While some documents that older adults may need are focused on the financial side of your affairs, others concern how decisions will be made about your health care.
Most attorneys would tell you to get a health care power of attorney — and they would advise you that it can be done when you are a young adult, and probably should be. But if haven’t done so yet, now is definitely the time to create one.
[Read: 11 Signs Your Aging Parent Needs Senior Care]
What Is a Power of Attorney?
In a nutshell, “a health care power of attorney can ensure that your wishes as a patient are honored even in a situation where you’ve lost the ability to communicate those wishes to your health care providers,” says Elizabeth Pendo, an attorney and professor at the University of Washington School of Law in Seattle. Health care law is her specialty.
A health care power of attorney is a legal document, Pendo says. Typically, you would hire an attorney to prepare one for you, although legal websites might do the trick for simple arrangements. The website LawDistrict.com suggests a typical power of attorney may cost $300 to draw up.
If you just verbally tell your child that they have power of attorney, it’s possible your wishes will not be followed as you anticipate. After all, if family members disagree on a treatment regimen or proposed care plan, a physician won’t know who to listen to. But when you have a written health care power of attorney, you’re giving someone the legal authority to make your medical decisions for you in the event that you can’t.
There’s no law that says you need a health care power of attorney, but there are a lot of legal case studies and tales of broken families providing evidence that you should really consider one.
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A Health Care Power of Attorney Gives You Power
Should something happen that renders you incapacitated and unable to make decisions on your own, and if you didn’t have a health care power of attorney, somebody would be appointed to make your decisions for you. This someone would most likely be whomever your state’s laws dictate. For example, many states indicate that your spouse will make your decisions for you in this case.
The problem comes, Pendo says, when state law doesn’t match up with your preferences. “All states have some kind of family consent law, but who is listed and in what order of preference can differ, and what the state chooses may not be who you choose,” Pendo says.
But even if the state law matches up with what you want, Pendo says, hospitals don’t always have time to locate your designees to make your medical decisions — and it’s possible that somebody you would disapprove of ends up making these critical decisions on your behalf.
If you have a health care power of attorney, and if family members or doctors know that you have it (that, too, is important), then the legal document ends any confusion about who should be making your health care decisions.
Pendo points out that before surgery, you should be asked verbal or written questions about whether you have a health care power of attorney.
Incapacitation, also sometimes called incompetency, is a legal term that generally refers to someone who “can’t review information or logically think through things,” such as may occur after a stroke or with later-stage dementia or Alzheimer’s disease. When this occurs, the durable power of attorney would come into full force, meaning that a designated overseer or agent steps in to make decisions on behalf of the individual.
Reasons to get a health power of attorney for an elderly person:
— Financial difficulties
— Chronic illness
— Memory impairment
— Upcoming surgery
— Regular travel
[READ: Taking Over Affairs for an Aging Parent in Mental Decline.]
Decisions Determined by a Health Care POA
The decisions that a loved one may make on your behalf can be weighty. A health care power of attorney can allow a loved one to:
— Look over your medical records, which they may want to do if they’re struggling with making a health care decision for you
— Give the go-ahead or say no to a doctor who may, for example, suggest you should have surgery, participate in a clinical trial or get a vaccine, for example,
— Allow life-sustaining care, like permitting you to be put on a ventilator or get a feeding tube
— Decide if your organs should be donated
That’s a partial list, of course. There’s no shortage of medical decisions a loved one might make on your behalf.
[READ: What Is Assisted Living: Services, Levels of Care and Costs]
Some Helpful Terms
Discussing a health care power of attorney can get pretty confusing, here’s a quick primer of common terms:
— Power of attorney. This is a general term for a legal document that allows somebody else to make your decisions for you in the event that you can’t. For instance, if you had dementia or were in a coma.
— Financial power of attorney. This is a general term for a legal document that allows somebody else to make your financial decisions for you if you can’t.
— Health care power of attorney. This is a general term for a legal document that allows somebody else to make your medical decisions for you. You’ll sometimes hear this referred to as a medical power of attorney.
— Health care proxy. Also sometimes called a health care agent. You designate this person to make your health care decisions for you.
— Durable power of attorney. If your lawyer is drawing up a healthcare power of attorney, they’re almost certainly going to make it a durable power of attorney, meaning that if you become incapacitated, your proxy can keep making decisions for you.
— Nondurable power of attorney. There are several types of POAs, including a non-durable power of attorney. You might, for instance, have a financial advisor making investment decisions for you, but you may not want that continued if you’re in a coma. However, health care POAs are typically always durable unless there are extenuating circumstances.
— Advance directive. Also known as a living will, this legal document provides instructions for your medical care and goes into effect if you can’t articulate your wishes. It’s similar to a health care power of attorney, but these are written instructions, and you don’t need someone to make decisions for you.
— Do not resuscitate order. This is a legal document stating that you don’t want cardiopulmonary resuscitation (CPR). Typically, a doctor will write this after a lengthy discussion with you or your health care power of attorney.
— Physician orders for life-sustaining treatment. These written orders are generally signed by the physician and the patient or health care agent, and your wishes for lifesaving measures are communicated to medical personnel.
— Guardian or conservatorship. Generally, a guardian refers to somebody who can make legal decisions for a minor under 18. A conservator is legally allowed to make decisions for somebody who can’t make them and is 18 or older.
Why You Should Have a Separate Health Care POA
Many people have a durable power of attorney, designed to allow one person to make all decisions — financial, healthcare and anything else that might come up. However, many attorneys recommend separating health care and finances into two separate powers of attorney.
There are a lot of reasons to do so, says Theresa Viera, a family law attorney and the founder of Modern Legal, a Charlotte, North Carolina practice. She says that, for instance, you might have two people making decisions on a durable power of attorney. When two or more people make decisions on your behalf, it’s called a joint POA. For instance, maybe you have one child making your financial decisions and another making health care decisions. She says you may not want your doctor to know who makes your financial decisions.
Why not? Keeping the financial and health decisions separate is just considered a best practice.
“A doctor’s general role is to prioritize a person’s health and physical welfare and very life without the influence of financial factors, so there is no need for such financial information to be disclosed,” Viera says. “Essentially, keeping this information private avoids even the remote possibility of a financial circumstance influencing medical advice.”
But there are other reasons, too, for having a separate health care power of attorney, according to Viera.
“There is generally a different set of laws that apply to a health care POA versus a general and financial POA,” Viera says. For example, in North Carolina, a health care power of attorney and a durable power of attorney are governed by different statutes. “Application of the appropriate statute helps ensure that a POA is enforceable and abided by any and all respective parties, including the court,” she adds.
In other words, if you don’t want some obscure legal complication interfering with your health care and causing undue stress for your family, it’s best to have a health care POA in place.
[READ: How to Coordinate a Parent’s Care With Siblings.]
A Health Care POA Can Be Done at Any Age
A health care POA can give you some control (during a time when you may otherwise have no control) and should reduce your family’s stress. While a lot of people say that they don’t want lifesaving or heroic measures to be taken if things look hopeless for them, others may want the doctors to do everything they can to prolong their life.
You’ll want to communicate your wishes, of course, to whoever you designate as your health care proxy or agent. Otherwise, they could make decisions that you would prefer them not make.
And Pendo points out that anyone who is 18 or older should technically get a health care power of attorney.
“It’s often people who are very young who are in catastrophic accidents,” Pendo says. “So I think the sooner you think about it, the better. Although human nature tells us that 18, 19, 20 and 21-year-olds are not immediately creating their wills or other documents related to this.”
But she says that even if you don’t draw up a health care power of attorney in your 20s, it wouldn’t be a bad idea to have conversations with your parents or grandparents about what you would want in the event of a health crisis.
Power of Attorney and Assisted Living
It’s very important to have all of your legal documents in order before making the move to an assisted living community. Some senior living facilities may require that such documents be in place before they will admit your loved one, particularly if that person is incompetent.
Even if you’re entering a facility while you’re still considered competent, it’s wise to have a power of attorney in place so that if your situation changes rapidly, as can happen with a stroke, for example, the community will know whom to contact when decisions need to be made. Having the appropriate type of power of attorney in place gives your attorney and designated loved one the tools to be able to act in your best interest.
Bottom Line
You may wonder — what happens if I change my mind about a health care power of attorney? Or what if the person I designate to be my health care proxy isn’t as good at this as I thought? Can anyone override a health care power of attorney?
The answer is — yes and no. Health care powers of attorney are designed so that they’re legally binding. That said, if you have a change of heart, you can absolutely go to your attorney and designate somebody else as your health care proxy. On the other hand, if you disagree with the job that an assigned health care proxy is doing for someone you love, it is possible to legally request a change in court.” A court could suspend the authority of a health care power of attorney if it deems it appropriate to do so,” Viera says.
“A court could suspend the authority of a health care power of attorney if it deems it appropriate to do so,” Viera says.
She adds that she recommends having a list of “alternative individuals” to serve as a health care agent, if, say, your proxy becomes ill or dies.
None of this is fun to think about. But a health care power of attorney is designed so that if your worst nightmare does indeed happen, all of this worrying and planning now will help get your family through what’s likely to be a very stressful, somber and difficult time.
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Why Power of Attorney Is Important for Senior Health Care originally appeared on usnews.com
