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Tips for choosing a durable health care power of attorney

A doctor is committed to saving lives. However, the U.S. Supreme Court has held that an individual has the right to refuse life support in some situations. That right is not absolute, however. Unless stated in writing, that decision may not be available if an individual is incapacitated.

Fortunately, estate planning can anticipate such medical emergencies. With an advanced health care directive and durable power of attorney, one’s wishes to refuse certain treatments can be observed, even when he or she is no longer able to.

Of course, not every situation might be anticipated, which is why a durable power of attorney for healthcare may be a good idea. This document designates an agent to make decisions on an individual’s behalf, including the right to talk with one’s doctor and decline certain treatments. The timing of when that agency becomes effective can be specified in the document. The document may also grant advance access to an individual’s medical records, which might be a wise proactive measure.

When choosing this agent, consider whom among your loved ones or friends would be comfortable talking with doctors and making potentially difficult medical decisions. Almost any adult can be designated, with the exception of one’s treating physician. An individual who is an employee in the medical facility where treatment is being received might also be ineligible.

To the extent a group decision on one’s behalf is desired, our estate planning law firm would caution against naming co-agents. To the extent the co-agents disagree, a deadlock might have to be resolved by the courts. A more streamlined approach might name only a sole individual, along with verbal instructions that he or she should seek consensus from other family members. As a matter of law, however, that individual would have sole decision-making authority. An individual can also name successor or alternate agents, in the event the primary agent is unavailable. 

Source: FindLaw, “Health Care Directives: Is there a Duty to Follow Them?” copyright 2016, Thomson Reuters

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