When Does a Health Care Power of Attorney Take Effect? What Are My Responsibilites?

A Health Care Power of Attorney does not take effect until the patient's attending physician determines that the patient is no longer able to make informed health care decisions and is no longer able to clearly communicate his or her wishes to health care providers. At that time, the physician will call upon the Health Care Agent nominated in the patient's Health Care Power of Attorney to make medical and health care decisions on the patient's behalf.

Your Role and Responsibilities as Health Care Agent

If you are called upon to serve as Health Care Agent, you will be responsible for all decisions relating to my health care, long-term care, end-of-life care, and general well-being.

Co-Agents

In some instances, a Health Care Power of Attorney may nominate multiple individuals to serve jointly as co-Health Care Agents. If you are serving with a Co-Agent, then the Health Care Power of Attorney should provide specific guidance regarding how to proceed in the event that you and the other Co-Agent(s) disagree on a matter.

Authority

The full scope of your authority is set forth within the Health Care Power of Attorney document, but in general, authority includes:

  • Receiving medical information that I would have a right to receive;
  • Conferring with my physicians and all other health care providers;
  • Reviewing my medical charts;
  • Asking questions and receiving explanations from my health care providers;
  • Discussing treatment options with my physicians and other health care providers;
  • Consenting to medical treatments, tests, diagnostics, or similar;
  • Refusing medical treatments, including expressing my wishes regarding end-of-life care and life-sustaining treatments; and
  • Requesting consultations and second opinions.

In some instances, you may need to consult with the patient's financial decision maker (Agent under the patient's Durable Power of Attorney and/or Trustee of my Living Trust) regarding financial feasibility of health care, long-term care, or end-of-life care.

Responsibilities 

By serving as Health Care Agent, you have accepted a fiduciary duty to act in accordance with the patient's wishes and best interests to the best of your ability. At times, you may need to communicate and coordinate with the patient's Agent under a Durable Power of Attorney or if the patient has a Trust, the patient's Trustee.  To reduce the risk of likelihood of family discord with family members that may not agree with your decisions you should:

  • Carefully read the Health Care Power of Attorney and all supporting guidance that the patient has provided;
  • When making decisions on the patient's behalf, regularly review the patient's Health Care Power of Attorney and all supporting guidance provided;
  • Consult with the patient's attorney as needed to understand your role and seek advice regarding carrying out the patient's wishes;
  • Keep a notebook or record of all decisions made on the patient's behalf regarding the patient's health care and living arrangements;
  • Keep copies of all medical reports or similar documents;
  • Write down the names of all persons consulted with in making a decision such as health care providers, attorney, or similar.

Potential Questions for Health Care Providers

Every health care scenario is different. The following list is by no means exhaustive, but hopefully, it provides you with a helpful starting point:

  • How will this care option help the patient improve or feel better?
  • What do you define as a successful outcome for this care option? What is the likely success rate?
  • Can this care option be done on a trial basis and then be re-evaluated? If so, what is the appropriate amount of time for the trial? If the trial does not appear to be successful, are you willing to stop the care at that time?
  • What will this care option mean for the patient's quality of life?
  • If I were to die, how might this affect the patient's death? (e.g., would it potentially require hospitalization instead of home care?)
  • What are the potential side effects of this care option?
  • What care option do you recommend and why?

Get Started on Your Planning & Peace of Mind

We can guide you through the steps of creating a comprehensive health care plan and make the process as easy as possible for you and your family. A great place to start if you're looking to learn more is to attend one of our free public seminars or request our report, Estate Planning Pitfalls: The Twelve Most Common Threats To Your Estate & Your Family’s Future. If you'd like to discuss other ways to get started, call us at (919) 443-3035 or complete our online contact form.

 

Jackie Bedard
Connect with me
Attorney, Author, and Founder of Carolina Family Estate Planning