Understanding the Durable Power of Attorney for Health Care
Georgia Division of Aging Services
The document below pertains specifically to Georgia state law, but it can be used by all health care professionals to better understand Durable Power of Attorney practices in all states
What Is a Durable Power of Attorney For Health Care?
A Durable Power of Attorney for Health Care (DPOA-HC) is a document or paper that allows us to designate or name a person or persons to make decisions about our health care in case we are not able to make those decisions ourselves. It gives some direction about the kinds of medical treatment we want.
Why Would Anyone Want to Have One of These?
Advances in medical technology have been a mixed blessing. Today people are living longer and longer. Yet the quality of life does not always match the quantity of life. In other words, many people wonder, “What good is it to live to be 100 years old if our last years are spent confined to a bed? We may not know who we are or where we are; we may be unable to feed or groom ourselves. Is this really living?”, we ask.
Today, courts in most situations agree that we have a right to control our health care. If we have cancer but do not want to be treated, that is our right. If we have a stroke and will be paralyzed for the rest of our life, we have the right to refuse medical treatment that will keep us alive. In other words, unless a special circumstance exists, we have a right to control our medical care. Doctors cannot force us to live when we no longer wish to live. We cannot be forced to take medicine or receive other life sustaining procedures if we expressly state those wishes.
What if we are unable to communicate with our doctors?
But suppose we are unable to communicate with our doctors. For example, what happens if we were in an automobile accident and suffered severe head injuries which left us unable to move and with no brain activity? Doctors said that we would remain in a “persistent vegetative state” and will never recover. We could be kept alive if we were hooked up to machines that help us to breathe and tubes that provide us with nourishment. The law says we have the right to refuse such treatment and can be allowed to “die with dignity.” However, in this example, we are in a coma. We cannot talk or communicate to doctors and tell them how we want to be treated – or not treated.
The Supreme Court decision on June 25, 1990, on the “right to die” was based on a situation like this. A 25 year old woman was injured in an automobile accident. She was left in a “persistent vegetative state.” Doctors said she might live for another 30 years like this.
Her parents told the doctors that their daughter would not want to live like this. They told the doctors to remove the feeding tubes and let their daughter “die with dignity.” The doctors refused. The case went all the way to the United States Supreme Court. The Supreme Court said that UNLESS WE MAKE OUR WISHES KNOWN, PREFERABLY IN WRITING, that the state could intervene to protect life.
This woman could have remained in a coma for another 30 years, not really dead, but certainly not fully living, either. However, further court decisions in her home state gave her family the authority to see that her wishes were followed, and she passed away in December of 1990.
If this woman had made a Durable Power of Attorney for Health Care, all of this could have been avoided.
How Does a Durable Power of Attorney for Health Care Work?
We sign a paper that says that we want a certain person or persons (called an agent)to make health care decisions for us if we are unable to make those decisions ourselves. We could be unable to make those decisions because of an injury or because we have become mentally incapable of making such decisions ourselves. Unfortunately, some of us may become mentally confused as we grow older.
This form gives them the legal power to make certain decisions regarding our health care – but ONLY when we are incapable of making those decisions ourselves.
What Decisions Can They Make?
They can decide on a wide range of health care issues. This can include whether to admit or discharge us from a hospital or nursing home, what treatments may or may not be given, who can have access to our medical records, and even how our body is disposed of after our death. For example, they may donate our organs, order an autopsy, and even direct funeral arrangements.
How Does My Durable Power of Attorney for Health Care Agent Know What I Want?
We must tell them – in writing. There is a suggested form that allows us to state in writing how we would like to be treated – or not treated – in various medical situations. We can also tell our DPOA-HC agent how we want our body disposed of, if we want to donate any organs to science, etc. We can direct that we do or do not want to be hooked up to machines that keep us alive. We can state that we do or do not want to be hooked up to feeding tubes that provide us with nourishment and hydration (food and water). We can even use the document to name a person we want to be our guardian, should it become necessary.
What Is a Guardian?
A guardian is someone who is legally appointed by the court to act on our behalf when the court finds that we are not capable of managing our own affairs. The court can appoint a guardian over our person, our property or both. The court can also appoint a guardian to act for a limited purpose or limited time period. A guardianship takes away a person’s legal rights and places rights and responsibilities in someone else’s hands. We should discuss guardianship with our attorney if we have any questions.
Who Should I Appoint to Be My Durable Power of Attorney For Health Care Agent?
We can choose anyone who is over 18 years of age. The only restriction is that they cannot be our health care provider. In other words, they should not be our doctor or work at a nursing home where we reside, or hospital where we may be a patient.
We should choose someone that we can trust and who will carry out our wishes. They can be a family member, a friend, someone we work with, or a spiritual advisor.
Although this is not required by the law, it is a good idea to discuss our wishes with the person or persons we would like to appoint to be our agent. This could be a difficult role with unexpected hard decisions to make. We should be sure the person we choose is willing to make those decisions for us.
Can I Appoint More than One DPOA-HC Agent?
Yes. The law allows us to appoint co-agents (two people who will serve as equals) and/or successive agents (a second person who will succeed the first person in case they are unable to perform their duty). We should consider naming more than one person since an agent may not be available or may choose not to act in a certain situation.
Is My Agent Required to Act for Me?
No. The law does not force the agent to act for us. However, if the person chooses to act, they must do so according to our wishes. This is one reason why we may want to ask the person we name whether they are willing to act for us, should it be necessary.
Is My Durable Power of Attorney for Health Care Agent Liable for What They Do?
No. As long as they are acting in “good faith” and in accordance with our instructions, the law protects them from liability (being sued) for their actions.
If I Change My Mind, Can I Change My Durable Power of Attorney Form?
Yes. We should destroy the copy that we have and tell others who might have a copy that we have changed our minds. We can then make a newer DPOA-HC that reflects our current wishes.
There are also some special parts of the law which address ways that the document could be revoked (cancelled). For example, the law says that if we get married after we have signed a DPOA-HC, it will be automatically revoked (not legally valid) unless we have named our new husband or wife as our agent. The law also discusses ways that we can cancel the DPOA-HC verbally. We should see an attorney to have these and other fine points explained.
Is There a Best Time to Appoint a DPOA-HC Agent?
Most of us don’t really want to think about dying. When we are young, we assume that we have many years ahead of us. But remember, the June 1990, Supreme Court case involved a woman who was only 25 years old at the time of her accident. Who would have predicted what would happen to her?
I Am More Interested in the Right to Live than the Right to Die. How Can I Make Sure That No One “Pulls the Plug” on Me?
The DPOA-HC is a neutral document. It does not assume that we feel one way over another. It allows us to state in writing exactly how we feel. If we want to “hang on to life as long as possible,” we should say so in the form. In fact, there is a place in the Georgia form to express this desire. But more importantly, one should make sure that the person(s) appointed as agent(s) can be trusted to carry out your wishes
I Don’t Want to Exist Like a Vegetable, But I Don’t Want to Be in Pain, Either. Is There a Conflict?
No. Standard medical practice says that we should be kept as comfortable and as free of pain as is possible. Often when someone is disconnected from a respirator, they are given a sedative that helps them to relax and go to sleep. No one wants us to suffer needlessly. The Georgia law on DPOA-HC also addresses this and states that health care providers have a right to administer medicine to control our pain, regardless of what our Power of Attorney for Health Care instructions may say.
What Is The Difference Between a Durable Power of Attorney For Health Care And a Living Will?
As explained, a Durable Power of Attorney for Health Care allows us to appoint a person or persons to make health care decisions if we cannot act for ourselves. A Living Will simply states our wish to have certain types of care witheld or withdrawn in situations set out in the Living Will itself. A Living Will may apply if we have a terminal condition, are in a coma or a persistant vegetative state. A Durable Power of Attorney for Health Care is broader in that it can apply to any condition you may have or treatment you may need., For more information on the Living Will, ask for the publication called “Understanding the Georgia Living Will”.
What Is The Difference Between a Durable Power of Attorney For Health Care And a Financial or General Power of Attorney?
The DPOA-HC is designed to authorize someone to act on our behalf to direct decisions about our body and health care or treatment. A financial or general power of attorney can be designed to authorize someone to act on our behalf in financial or other matters. A person can use two different documents, one for decisions about the person (DPOA-HC) and one for the property (regular POA). The law also allows us to combine both types of powers of attorney into one document, if we wish. See a lawyer if you have any questions about a power of attorney for property or finances or if you have questions about combining the two documents into one.
How Do Religions View a Durable Power of Attorney for Health Care?
Many religions support our having the power to control our health care. Medical technology has advanced quicker than medical ethics. Often hospital boards and families rely on a minister or other spiritual counselor to offer advice. Many religious groups and individuals support our right to decide.
However, some religious groups and individuals are very much against a DPOA-HC. Instead of saying this gives us the right to die, they think it gives others the right to kill.
The Georgia law states that the DPOA-HC is not a form of euthanasia (mercy killing). We are not actively killing someone. Insurance companies do not consider such decisions suicide. Despite these statements, some people do object to a DPOA-HC. If you have questions or would like to know your religion’s views of this, ask your local minister, priest, rabbi, or spiritual leader.
This Is All Very Complicated! Can The County Agent Help Me?
No. The county agent is neither a doctor nor a lawyer. If you need help in understanding this, you should make an appointment to discuss this with a legal or medical expert.
What Form Can I Use?
The Georgia law states that we can devise a DPOA-HC form to custom fit our needs. Our form does not have to be a word for word duplication of the form suggested in the law. We should consult an attorney if we want to insure our DPOA-HC form is legally valid. We should consult a medical doctor if we have questions about the types of treatment or medical issues that may arise.
No one likes to think about such matters. However, as the saying goes, “bad things happen.” Most people hope that they will simply go to sleep one night in their own bed and not wake up. The reality is that about 80% of people die while in a nursing home or hospital. The majority are not physically or mentally able to make decisions about their own health care.
In order to protect ourselves, it is in our best interest to appoint a DPOA-HC agent. We should use a DPOA-HC to let others know how we wish to be treated if we are not able to communicate those wishes at the time.
What we decide is up to us. We can custom design our DPOA-HC to our own wishes. It is an important task that we all should consider.