Health Care Power of Attorney

People sign health care powers of attorney to designate who will make health care decisions for them if they cannot make their own decisions.

1.     State Law.

State law provides that as long as a person can make health care decisions for himself or herself, he or she makes those decisions.  If a person cannot make health care decisions for himself or herself, then the person’s spouse makes those decisions, if the person is married, or the person’s domestic partner if they registered as domestic partners.  If the person’s spouse cannot make those decisions or if a person is not married, then his or her children over the age of 18 will make the health care decisions.  If the person does not have any children over the age of 18, then the person’s parents will make the health care decisions.  Sometimes, people do not like the order that state law provides for making health care decisions and they choose to sign health care powers of attorney designating someone else to make health care decisions for them if they cannot make their own decisions to avoid the order provided for by state law.

2.     When to Use a Health Care Power of Attorney.

People need to use health care powers of attorney in three situations.

The first situation consists of people who are concerned that the person who would make health care decisions for them would not make the same choice that they would make.

For example, Chris’s parents do not believe in removing life support.  Chris does not want life support if she is permanently unconscious or terminally ill.  Chris should use a health care power of attorney to name an attorney-in-fact who would remove life support if she were terminally ill or permanently unconscious. 

The second situation is if a person believes that the individuals making the decision will disagree.

For example, Chris has four children.  Two of the children would not remove life support.  The other two would remove life support and honor her health care directive.  Chris should name the two children who would remove life support as her attorneys-in-fact to make health care decisions for her so that she knows that her wishes will be followed and avoid a guardianship proceeding where the court appoints someone to make those decisions for her.

Finally, people should use health care powers of attorney if they want some other order than state law provides.  This is especially true for unmarried couples who have not registered with Washington state as domestic partners and are not planning on marrying or registering as domestic partners.

For example, Jody and Chris have lived together for 10 years but are not married.  They have no children.  Jody and Chris want the other partner to make health care decisions for them if they are unable to make their own decisions.  If either Jody or Chris became sick and unable to make their own health care decisions, their parents will make the health care decisions for them unless they have each signed a health care power of attorney designating the other as the person to make health care decisions.

3.     Terms and Who Can Be an Attorney-in-Fact.

The person signing a health care power of attorney is called the “principal.” The person named in a power of attorney to make health care decisions on behalf of a principal is called the “attorney-in-fact.” With a few exceptions, a person can name almost any competent person as their attorney-in-fact.  A person cannot name the following individuals as their attorney-in-fact, subject to a few exceptions:

a.  Their principal physician;

b.  The physician’s employees;

c.  The owners, administrators or employees of the health care facility where the principal resides or receives care.

The exception to this rule is if a spouse, state registered domestic partner, parent, adult child or sibling holds one of the excluded positions.

For example, Martin uses Ursula, who is not related to Martin, as his principal physician.  Martin could not name Ursula as his attorney-in-fact for health care decisions.  However, if Ursula was Martin’s sister, mother or daughter, then Martin could name Ursula as his attorney-in-fact.

4.     When Effective.

Typically, a health care power of attorney becomes effective when the principal becomes incompetent and cannot make his or her own decisions.

For example, a truck hits Chris and she slips into a coma.  The person named as the attorney-in-fact could make health care decisions for her until she regained consciousness.  After she regained consciousness and was competent, she would make her own health care decisions again.

A person should provide a copy of the health care power of attorney to his or her physician and the attorney-in-fact who will make the health care decisions.

5.     Restrictions on Attorney-in-Fact.

Except as provided in a mental health advance directive executed order under RCW 71.32, an attorney-in-fact may not consent to any of the following treatments:

a.  Therapy or other procedures which induce convulsions;

b.  Surgery solely for the purpose of psychosurgery;

c.  Other psychiatric or mental health procedures that restrict physical freedom of movement.

6.     Terminating a Power of Attorney for Health Care.

A power of attorney for health care decisions terminates when the person dies.  A principal can terminate a power of attorney at any time by providing notice of the revocation or termination to the attorney-in-fact. A power of attorney for health care decisions between spouses or domestic partners is automatically terminated when a person files for dissolution, annulment or legal separation from his or her attorney-in-fact. However, the power of attorney for health care decisions will be reinstated if the dissolution, annulment or legal separation is dismissed with the consent of both parties or petition for dissolution, annulment or legal separation is withdrawn.

7.     Power of Attorney for Health and Financial Decisions.

A health care power of attorney may be part of a financial power of attorney but can also be its own separate document.  A benefit of having two separate documents is that a person may choose different people to make health care and financial decisions.

For example, Chris wants Jody, her significant other, to make health care decisions for her.  However, Jody is not financially responsible.  Chris wants her brother, Martin, to make financial decisions for her and pay her bills, but does not want Martin to make health care decisions for her because their philosophies on health care differ.  Chris will want to sign a health care power of attorney naming Jody as her attorney-in-fact for health care decisions.  She will also want to sign a power of attorney for financial decisions naming Martin as her attorney-in-fact.

8.     Naming a Guardian.

Parents may name who they want to act as guardian for their child in the parents’ health care power of attorney.  The guardian would only act if both parents of the child were incompetent or unable to act.  This would effectively name a guardian for a minor child when the parents were incompetent but alive.  The guardian for the child does not have to be the same as the attorney-in-fact under the health care power of attorney.

9.     Conclusion.

Health care powers of attorney are very powerful tools that allow people to choose individuals to make health care decisions if they are unable to make their own decisions.  People in long-term unmarried relationships, or who believe that there may be some conflict in having their choices followed, or who have a minor child, should especially consider signing a health care power of attorney.

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