Why It’s a Mistake to Not Have a Power of Attorney for Healthcare and Healthcare Directive

You are driving down the roadway, listening to your favorite music, and SCREEEEEEEECH, BAM. 

Your car is hit. 

You are knocked unconscious. 

You wake up in the ambulance on the way to the hospital. 

You look around but are not sure what is happening. You can’t talk, it’s hard to breathe, and you feel pain radiating throughout your body. You feel like you are going to die. 

You pass out again. 

This time, you don’t wake up. You are in a coma at the hospital. 

Who is going to make decisions for you? 

Do you have a power of attorney for healthcare? Do you have a healthcare directive? Have you discussed these situations with your power of attorney for healthcare? 

Let’s talk about what a power of attorney for healthcare does, what a healthcare directive is, and why it’s important to discuss your wishes with whomever you name as your healthcare power of attorney. 

What is a Power of Attorney for Healthcare?

A power of attorney for healthcare, also known as medical power of attorney, is a legal document that allows you to name an individual or multiple individuals to make decisions about your health care in the event you are unable to make your own decisions. 

Put another way, it allows someone to act in your place. 

Why might you want someone to act in your place? 

  1. You are physically incapacitated, like in the car crash situation or COVID pneumonia and put on a ventilator and sedated so you cannot talk.
  2. You are mentally incapacitated, such as chronic substance use (alcohol, drug, etc.), brain damage (stroke, dementia, accident, etc.), or mental health issues (bipolar, schizophrenia, post-traumatic stress disorder, etc.)

In any of these situations, if you can’t make a decision for yourself or you cannot make a good decision for yourself, you probably want someone who can step in to honor your wishes.

If you don’t have a power of attorney for healthcare, the process is more complicated. Health care providers will usually consult your family followed by close friends, but you don’t want to leave it to chance.

What happens if you have a bad relationship with one of the family members they consult? What happens if they can’t get a hold of the family member you would want to make the decisions? What if the family member has no idea what you want to be done in emergency situations? 

Not having a power of attorney for healthcare in place can potentially create unnecessary conflict, but more importantly, delay treatment or give you treatment you wouldn’t want.

It’s important to have these in place well in advance of any issues. For example, once someone is mentally incompetent, they cannot sign a power of attorney for healthcare, or any legal document. 

The Differences Between Springing and Durable Power of Attorney for Healthcare

A springing power of attorney for healthcare is conditional – it “springs” into effect when you become incapacitated and only then can the person you name act on your behalf. 

A durable power of attorney for healthcare is valid once signed. The person you name can immediately start acting on your behalf. 

Personally, I’m not a big fan of the springing power of attorneys for healthcare. It creates another hoop to jump through during an already stressful, life-changing event. Instead of someone simply presenting a valid durable power of attorney, they need to present the springing power of attorney, and depending on how the document is written, one or two doctors may need to certify you are incapacitated. It’s not a quick process and is one more burden on the person. 

I recognize many people are afraid the power of attorney will abuse their position of power if they choose a durable power of attorney. The fear usually shows up more on the financial side with the financial power of attorney, but it’s worth discussing here. 

My response is, “If you are afraid of the power you are giving your power of attorney, why the heck are you giving them any power?” 

The power of attorney you choose should be someone you trust completely, wholeheartedly, and without reservation. They are going to have the power to literally make life or death decisions for you. You better trust that person with your life. 

I prefer the Durable Power of Attorney for Healthcare because it’s easier in emergency situations. You usually only need to present the document and a form of identification to prove your identity. Even if the person is not incapacitated, you can present it to have it on file in case they become incapacitated.

If you have ever been through a healthcare emergency, you know there is enough going on at the moment that dealing with more paperwork and bureaucracy can make your blood boil. 

As with any personal decision, you’ll want to consult your attorney before making a decision. I share my opinion based on personal experience. 

Who is a Good Person to Name as a Power of Attorney?

Remember how I said you want to pick someone you trust with your life? 

Who are those people for you? 

Although many people choose significant others, parents, other family members, or friends, the choice is yours. 

A few things to think about:

  • Who is close by? 
    • You probably don’t want to name your sister Hannah if you live in Washington state and Hannah lives in Florida. You could, but imagine the difficulties if you are in an emergency situation and Hannah has to do everything from Florida. 
  • Who do you want to put the burden on? 
    • Being a power of attorney is not an easy job. People often talk about “pulling the plug” in a joking manner, but it’s something to think through. Is the person you are selecting ready and prepared to make tough choices? Do you want to put the burden on them? If someone already has enough on their plate or has struggled with challenging decisions in the past, maybe they are not the best person for the role. 
  • Are they emotionally prepared? 
    • Someone who is not calm in crisis or struggles in changing environments may not be the ideal person to make decisions on your behalf. It’s impossible to say how someone will respond, but look towards past reactions to gauge how you think they may respond if you were incapacitated. 
  • Can they navigate the healthcare system? 
    • Do they ask good questions? Are they willing to engage with medical providers? Can they be a good advocate for you? Our healthcare system is a mess. You want someone who can navigate it and be persistent. 

Should I Name One Agent or Co-Agents?

This is an area where I have a strong opinion. I personally prefer naming one agent. 

Do you remember growing up and trying to decide where to go to lunch with friends? The conversation would usually go something like this:

Tim: Let’s go to the diner! 

Nicole: No, I had that yesterday. Let’s get Thai food. 

Monica: That sounds good. 

Tim: I don’t really like Thai food. 

Homer: What about Mexican food? 

Nicole: I love Mexican Food! 

Monica: Can we go somewhere else? 

***30 minutes pass***

They are starving and finally decide on a place, but none of them are really happy with it. 

Imagine that conversation, but for healthcare decisions. 

If you name two agents and are not careful (and even if you are careful) in allowing them to act independently, conflict can occur. Naming two agents is like putting two people in charge of a project. 

Sometimes they will agree on the vision, direction, and methods of how to accomplish something, but usually not. That’s why people usually put one person in charge. 

If you do name co-agents, I’d recommend talking with your attorney about the advantages and disadvantages of allowing them to act independently, meaning they do not need to agree on a course of action. For example, if you name your sister and brother as co-agents and one is not in the local area, it may be tough to get them to agree on a course of treatment. You may want them to have the power to act without the other. 

Co-agents are more problematic when it comes to the financial power of attorney, but it’s something to consider for the healthcare side. 

One benefit of co-agent is you can split duties, which can be helpful if one person is not immediately local or has another emergency in their life. 

There is no right or wrong answer. Consider the dynamics of the people you name and what might work best for you. 

What is a Healthcare Directive?

A healthcare directive is a document that tells others your wishes for health care if you cannot make the decisions. 

It helps explain how you want decisions to be made if you are incapacitated. Think of it as a roadmap or guide for your power of attorney for healthcare to follow. 

If you want to see an example, End of Life Washington has one you can download

This document combines the durable power of attorney for healthcare and healthcare directive. 

In the document, you can select situations, such as:

  • When you do not want life-sustaining treatment
  • When you may want temporary use of life-sustaining treatment
  • How you want comfort care or pain medication
  • Whether you want experimental medical treatments, consent to an autopsy, or consent to use your body for medical education and research 

I also like that this document allows you to attach an additional statement of values. I find writing your own statement of values is helpful in providing a guide for loved ones. Legal documents are often “legal-y”. They can be hard to read and challenging to capture the essence of what someone wants. 

For example, in my own document, I better described what good health looks like, under which situations I would want care, when I want to be set up with hospice, how I don’t want expensive, looking-for-miracle cures if good health is unlikely, and the preference for a green burial. 

People don’t have to follow it because it’s not a legally binding document, but it’s a better explanation of how I would think about my own care in varying situations. 

I have a bible from college with notes in the margin explaining the history, elaborating and connecting it to other passages, and providing more insight into what is being discussed. I see the additional statement of values as the notes in the margin and the healthcare directive is the bible. Sometimes more explanation is required for greater understanding. 

Please note that each state has different laws and a healthcare directive from one state may not fit the requirements of laws in another state. It’s best to talk to an attorney about updating your healthcare directive if you move. 

The Importance of Discussing Your Wishes with Others

Ah, yes, who wants to discuss death and sickness with their loved ones? 

I bet you do! 

I joke. 

I know people hate the idea of thinking about their own sickness and death. I know they hate talking about it with others. I know it feels like it’s never a good time to bring it up. 

Do you know what’s worse? 

Waiting until you are incapacitated and your loved ones have no idea where your documents are or what kind of care you want. That’s a recipe for a disaster. 

Even if you prepare your legal documents, write out your additional statement of values, and feel prepared, there is one final step  – discussing it with the important people in your life. There are a few other steps to take to make it easier on loved ones.

When you talk, tell them where your documents are located. Don’t put them in a safe deposit box that is inaccessible. Keep them in a safe place that another person who knows your house could find. 

Better yet, go over the documents with them. Ask them if they have any questions or want you to clarify any points. 

Reverse the roles, and you’ll see how important it is to discuss them in advance. If someone had you as their power of attorney for healthcare and you did not know where their documents were or what kind of care they wanted, think how stressed you would feel. 

It’s not an inconvenience discussing it with someone else – it’s a gift. Hopefully, it’s a gift they never need, but if they do, you’ll be glad you did it. 

Summary – Final Thoughts

Most people believe power of attorney for healthcare is only for older people. It’s not. 

Anything can happen.

A car accident, COVID complications, sports injury, mental disorder, and more. The list is endless. 

A power of attorney for healthcare and healthcare directive can name who you want to act on your behalf if you are unable and help guide them in their decision-making. 

If you already have yours complete, review it. Is there anything you need to change?

If you haven’t completed yours, make it a priority to do it in the next month. 

Disclaimer: This article is for general information and educational purposes only and should not be considered investment, financial, legal, or tax advice. It is not a recommendation for purchase or sale of any security or investment advisory services. Please consult your own legal, financial, and other professionals to determine what may be appropriate for you. Opinions expressed are as of the date of publication, and such opinions are subject to change. Click for Full Disclaimer