Pennsylvania Trust

Who Will Make Health Care Decisions When You Cannot

Who Will Make Health Care Decisions When You Cannot

In the Fall edition of our newsletter, we discussed the importance of a financial power of attorney — a document by which you give a trusted individual the ability to make financial decisions if you become unable to manage your affairs. It is equally important to ensure that you give a trusted individual the ability to make medical decisions if you are unable to, and that you are able to preserve your intentions about end of life care in a way that binds those caring for you to follow your instructions. A carefully drafted health care power of attorney and living will help ensure that your health care intentions will be followed.

Health Care Powers of Attorney

Most states give you the ability to name a health care agent who is required to make decisions on your behalf in accordance with a properly executed health care power of attorney. The form of a health care power of attorney is governed by state law. Generally, such a document should give you (the principal) the power to name an individual to make health care decisions for you (the agent), describe limitations you wish to impose on your agent’s ability to act on your behalf, and describe specific forms of health care actions you wish your agent to take (or not take). The document can also require your agent to consult with a relative, cleric, physician, or other trusted individual in connection with health care decisions, set forth your intention regarding end of life care, and nominate an individual to serve as the guardian of your person should the need for a guardian arise. As with a financial power of attorney, a health care power of attorney may be “durable” (effective the moment you sign it), or “springing” (effective when a specific event occurs, such as incapacity).

Living Wills

A “living will” is a document by which you provide instructions for your health care agent and your treating physicians with respect to end of life care. Such instructions may include whether to provide (or withhold) end of life care, and specific requests as to the type (and level) of pain management you desire. Although Pennsylvania law allows the combination of a health care power of attorney and living will in one document, many practitioners suggest separating the document for privacy concerns, particularly if you do not wish to inform your medical providers of your wishes regarding end of life care until the time end of life care is required. You should discuss your wishes about the structure and terms of these documents with your estate planner and medical providers.

A Note About Guardianships

As discussed above, a health care power of attorney gives you the ability to name an individual to act as guardian in the event a guardianship is necessary. In Pennsylvania, the existence of health care and financial powers of attorney typically obviates the need for a guardianship. A guardianship can be an extremely restrictive relationship that prevents an individual from making any independent decisions. It is critical to put health care and financial powers of attorney in place to avoid the need for a guardianship.

Hospital Form Powers of Attorney

Hospitals often ask their patients to sign health care powers of attorney in connection with medical treatment. You should think twice before signing a hospital’s form, particularly if you have an existing power of attorney, as many powers of attorney contain language that revokes previously-signed powers. If you have these documents in place, be sure to inform your health care agent and medical providers of their existence. You may wish to provide a copy of your health care power of attorney (and living will, if it is a separate document) for your medical file.

As with other parts of a thoughtful estate plan, the seemingly simple need to sign a health care power of attorney can involve complex decisions, and should be considered carefully. Pennsylvania Trust’s administrative team has considerable expertise with these issues, and looks forward to assisting you with this process.

Note: Fall 2012 Trust Talk, The Importance of Financial Power of Attorney is available here.

by Peter J. Johnson, Esq.
Mr. Johnson is Senior Vice President at Pennsylvania Trust and head of the Special Needs Trust/Guardianship Unit.