When we mention Power Of Attorney, many people think first of the Financial Power Of Attorney: who I will choose and select to help me with financial and money matters if I need assistance.
I also prepare a Healthcare Power Of Attorney and Living Will for medical care decisions. You get to say who you authorize and appoint to be your medical care decision-maker for you when needed. It only applies during your lifetime.
There are lots of forms available for these documents, and many are free to use. The Allegheny County Bar Association together with the Allegheny County Medical Society publish a form on the Bar Association website, written jointly by doctors and lawyers.
There is also an official form in the Pennsylvania Statutes for a Healthcare Power Of Attorney and Living Will, enacted by the legislators in Harrisburg. Another document that’s in common use is one called “Five Wishes.”
The central feature of any such document is to appoint and name the person you choose as your “Health Care Agent” under Pennsylvania Law – AND your Successor Health Care Agent, backup or second choice. Other provisions usually allow you to give some guidance to your Health Care Agent as to your preferences and wishes – either as to specific medical procedures that you would or would not want someday (I always thought that was a little silly), or in a more modern fashion, as to how you would like the decisions to be made, and what factors would be important to you for the decision-maker to consider.
You usually also have the option to specify whether any additional instructions you give your Health Care Agent are legally binding, or just expressions of your preferences and guidance for your Agent to consider.
Like all other estate planning activities, e.g. making a Will or Financial Power Of Attorney, the essential act is to write it down and sign it to make it stick later.
In a Healthcare Power of Attorney and/or Living Will you get to say:
- WHO will be your Health Care Agent, and who will be their backup or substitute;
- WHEN it will come into effect, i.e. immediately or only later if you need help; and
- WHAT powers you want them to exercise and what decisions they can make for you.
I usually think of two closely related but somewhat distinct parts of the document: the Healthcare POA is for ordinary, lifetime, healthcare decisions (as in: tomorrow I’ll be okay, but right now I need you to make a decision for me); and, the Living Will part about end-of-life treatment instructions only starts to apply if you can’t make or communicate your own decisions, AND IN ADDITION you are about to die – that you are going to pass away despite any medical treatment that can be provided, according to the PA statutory definition. Both conditions must be met for the Living Will to become effective.
If it does apply, it says – and these are my words only – “When it’s really my time, and I’m about to go, please let me go. Don’t keep me alive on the machines and wires and tubes and needles. Keep me comfortable and free of pain, but don’t do things that are going to drag it out and prolong my dying when I no longer actually have a chance to get better, and live again.”
When is it especially important to sign such a document? If your preferred decision-maker is not your next of kin – such as an unmarried partner, or any other friend or relative – and your next of kin may show up and try to seize control of your care decisions. Especially if there are already adverse or hostile relations, such as an estranged sibling, it’s important to have a signed Advance Health Care Directive in place, to say who you choose and appoint. Otherwise, if you are unable, unconscious, or in an end-stage medical condition, and you haven’t signed one, then PA law says that your next of kin are in charge to decide for you.
Once it is signed, who should you give a copy to? Your PCP, for sure, per the conventional wisdom.
Should you carry a copy in case of an accident? It’s a bit of a morbid thought, but it couldn’t hurt. Might depend on your own health conditions.
Finally, if it’s available for free, why should you pay an attorney to prepare it for you? An estate planning or elder law attorney won’t necessarily write you a better or fancier document. Their value will be in discussing and consulting with you, advising you, and helping you think through the best way to accomplish your goals, the best people to appoint, etc. (Plus it’s usually part of a package of documents.)
At Marks Elder Law, we help people every day with issues like these. I invite your questions and feedback. Please let me know how I can help you and your family.
