Medical Durable Power of Attorney

A person uses a Medical Durable Power of Attorney to appoint someone else to make medical and treatment decisions for him or her if they are unable to communicate their own wishes. In the case of married couples, this document still has great value because if their spouse is unavailable, a person's "next agent in line" is able to make decisions without several brothers and sisters or both parents arguing over treatment. In the case of a same-sex couple, this document is critical if you want your partner to make these decisions for you.

Everyone has heard the horror stories about how someone's partner went into the hospital for an emergency and the hated parents or siblings made all of the medical decisions. It may seem obvious to anyone that knew the patient that they would want their partner to make these decisions for them. However, the law forces doctors to seek decisions from the "next of kin" UNLESS a Medical Durable Power of Attorney form has been filled out appointing someone else the healthcare agent.

This form generally covers instances where you are unconscious and a decision is needed regarding surgery or other treatment. A Medical Durable Power of Attorney will also compliment your Living Will in making sure your healthcare decisions are made by specific people you choose, in the order of your choosing, so doctors have specific people to turn to for a decision. The last decision of withholding or giving life support is made in advance by you in a Living Will. For more information on that, please see our information on Living Wills.

In short, you appoint the people you would want to make healthcare decisions for you if you were unable to make them yourself or if you were unable to communicate these wishes. The doctor is bound to follow the legitimate orders of you healthcare proxy even if the "next of kin" disagrees with the decision.

What does a Medical Durable Power of Attorney not do?
Far too many people have the wrong idea of what a Medical Durable Power of Attorney does, and they consequently avoid this document because they wish to maintain control over their own healthcare decisions.

First, a Medical Durable Power of Attorney does not sign away your own rights to make medical decisions for yourself. As long as you are competent and able to communicate your wishes, then you make those decisions. It is only if you are incapable of handling decisions yourself that a Medical Durable Power of Attorney takes effect, and that must be determined by two attending physicians.

Next, your close family members do not have the authority to veto your appointments. It is a myth that family members can step in and nullify a healthcare agent's decisions just because they are related. It has been our experience that people have held the misconception that a Medical Durable Power of Attorney is worthless because the immediate family can override the document, and that simply is not true. If anything, state laws protect your interest in appointing a healthcare agent specifically because the state realizes that you may not want your closest family members making medical decisions for you. After all, you know your family, and you would best understand how they would react in a medical crisis. It is then up to you to get a Medical Durable Power of Attorney or simply do nothing and allow your closest family members to make decisions for you. However, make no mistake about it -- if you do nothing, then fighting siblings, arguing adult children, and a close relative you have not seen in years may be the ones making medical decisions for you.

Lastly, your Medical Durable Power of Attorney does not make your healthcare agent liable for your medical bills. Regardless of the treatment you receive at the direction of your healthcare agent, you (and/or your health insurance company under the terms of their contract with you) are still primarily responsible for the payment of medical bills. For this reason, many of the state-approved Medical Durable Power of Attorney forms and healthcare proxy forms specifically release the healthcare agent from any liability, financially and legally, for their decisions on your behalf. After all, in making a Medical Durable Power of Attorney, you are appointing people that will make decisions for you the way you would if you were capable of communicating them. Just because they made the decisions for you does not mean that they now have to pay the tab.