Everyone – repeat after me – everyone – who is at least 18 years old, needs a Health Care Power of Attorney (HCPOA).
A HCPOA is a type of health care directive. It gives directions (directives) on what your wishes are for your health care if you are ever too ill to communicate your wishes for yourself. When you create this document, you name someone you trust (an “agent”) to make decisions about your health care if you are unable to do so yourself. In the case of an elderly parent, this document will also give the named agent the right to speak to the medical staff. With today’s privacy laws, most medical staff will not speak to you regarding your parents care if they haven’t been given express permission by your parent to do so.
A HCPOA must be signed (and notarized) while one is still competent. HCPOA documents can be set up to take effect immediately, or only in the case of your becoming incapacitated. You do not have to see an attorney to have a HCPOA prepared. Most health care providers (doctors, hospitals, nursing homes) have the forms available and will help you to complete them.
Many people also have a living will. A living will is also a type of health care directive. The living will states what type of life sustaining treatments you want provided, or withheld, if you are actively dying. The point of these procedures would be to postpone death.
Laws differ state to state regarding who, in the event you are incapable of making your own decisions, has the right to make health care decisions for you.
In some states, the first relative the medical staff is able to contact is allowed to make decisions for you if you have no known HCPOA. So picture that. Your spouse is out of town and you are in an accident and unable to communicate your wishes. The staff attempts to contact your adult children and your brothers and sisters without success. They are finally able to track down your cousin Susie who you only see about once a year. Is she really the one you want making your decisions for you? Does she know what you want?
Another example: A woman I met several years ago told me the story of her daughter’s life threatening accident. Her daughter, Amy, was 18 and in her final year of high school when she was involved in an accident that nearly took her life. The mother, Joan, was called to the hospital and given the grim news. Joan, who happened to be a nurse, felt that another hospital in the city could provide better care for this particular type of injury. The doctor on duty disagreed with Joan. Because Amy was 18, and had no HCPOA, the doctor was not required to honor Joan’s wishes – particularly since he disagreed. And he didn’t. The next morning – during this crisis – Joan was forced to meet with an attorney. The attorney met with a judge and Joan was finally allowed to make decisions she felt were needed. Joan had two other children. She told me that on each of their 18th birthdays, she had HCPOA paperwork prepared and signing the documents was the first event of the day to celebrate their birthdays!
First and foremost, your HCPOA should be someone you trust. This person will potentially be making life and death decisions for you. You should also have a secondary person named in the document in case the first person is unavailable. For instance, you might choose your spouse first and then one of your children, or one of your siblings. You might also choose your children; making one primary agent and another a secondary agent.
I would caution against making your children join agents on your HCPOA. If you name them all join agents, will they all agree on what should be done? A more emotional child might not be able to follow your wishes. Even though you may have clearly stated you do not want to be kept alive by artificial means, this child might not be able to let you go. Will one tell the doctors to keep you on life support no matter what while another tells the doctors not to?
The thought of having a Power of Attorney was something my father stubbornly refused to consider. I wanted my nearly 80 year old father to have a financial and a health care power of attorney. He flat out refused. He stated he could make his own decisions and didn’t need someone to make them for him. I tried to explain to him that it would only take effect if he wasn’t able to make his own decisions. No dice.
My mother, who was unable to make her own decisions, absolutely needed both a health care and a financial POA. I was able to convince my father to have an attorney prepare paperwork for her. The attorney, bless his heart, told my father he would only prepare one for my mom if he prepared one for my dad too. He used the reasoning that if something happened to my dad, then my mom would be unprotected. My dad agreed and had documents for both of them prepared. And then he promptly took them back to his house and put them in the safe! He told me he would give me a copy if he ever needed someone to make decisions for him. I did manage to get a copy, but that’s another story.