Durable power of attorney for health care and why you might want one

Do you know what a durable power of attorney for health care is and why you might want one?

When you go to the doctor, or to the hospital, you get to tell the doctor what treatment you want, or don’t want, but who talks to the doctors if you can’t?  Washington law sets out a hierarchy of people who can speak on your behalf.

Assuming that you are not under a court-established guardianship, the State of Washington has a statute providing a “list” of people who can give consent, who are, in order: (1) your attorney in fact for health care decisions, (2) your spouse or domestic partner, (3) your children who are at least eighteen years old, (4) your parents, or (5) your adult brothers and sisters.

You’ll see that the first person on the list is your attorney in fact.  Who is this person, and why are they at the top of the list, even before your spouse?

An attorney in fact is a person you name to act on your behalf in a document called a durable power of attorney (see my December 12, 2017 post for more information about durable versus non-durable powers of attorney).  While your family members can make health care decisions for you, there are a number of reasons to execute a durable power of attorney.

The first reason is that, by naming an attorney in fact, you cut short the search for someone on the list to make health care decisions for you.  If you don’t have an attorney in fact, your health care provider must make “reasonable efforts to locate and secure authorization” from the appropriate person(s) from the list, starting with your spouse (if any), and going down from there.  Searching for someone on the list slows thing down because the health care provider may not know who’s in your family (are you married? Do you have children?), and if there is more than one person at the same level on the list (e.g., you have three children), the decision must be unanimous.

A second reason to execute a durable power of attorney is that you can give a copy of your durable power of attorney to your health care providers before you need to use it.  There’s no need for the health care provider to search for someone to make the decisions.  The person with that authority is already on file.  Also, you can make sure the person you’ve named also has a copy and knows they are authorized to act if necessary.

A third reason to execute a durable power of attorney for health care decisions is that you can name a nonfamily member to make health care decisions for you.  This becomes important if your family members all live far away, you have a partner and you are not registered domestic partners, or if you don’t have any living family members on the list.  With a durable power of attorney, you can give a friend, partner, or an entity, such as a professional guardianship service, the authority to make health care decisions for you.

A fourth reason to execute a durable power of attorney is that you can name successor attorneys in fact in the document who can act if your attorney in fact can’t.  In essence, you’re creating your own list.  You can move people up the list (skip your children and go straight to your parents) and add nonfamily members to the list.  You can even name multiple people (say all three of your children) and give each of the power to act individually.  That way if one child lives nearby and is the most likely to help you with the more day-to-day types of health care decisions, they can, but if an emergency arises, any one of them—or all of them—can be called into action.

And, finally, a fifth reason to have a durable power of attorney for health is that you can specifically authorize your attorney in fact as your “representative” under the very strict State and Federal health information privacy laws.  This can be particularly important for the elderly person who may be relying on someone to assist them in organizing and facilitating what can be an avalanche of health care instructions.

As you can see, while you can always rely on your relative to make health care decisions for you, having a durable power of attorney greatly simplifies the process and gives you quite a few options that aren’t possible if you simply rely in the list of relatives set out in state law.