Medical Power of Attorney Forms
The Medical Power of Attorney Forms, (also called “Health Care Power of Attorneys,” “Advance Directives” and “Health Care Proxies”) create a legally-binding record of an individual’s healthcare wishes as well as their selection of an Agent who will represent such wishes in the event that they become incapacitated. State laws recognize the importance of providing people with a way to protect their healthcare rights and wishes even if they are severely ill, which is precisely why every state in the country permits all capable individuals to take advantage of the many benefits this form provides.
Medical Power of Attorneys by State
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
What is a Medical Power of Attorney?
A Medical Power of Attorney empowers individuals to make ample preparations for the possibility that they may one day become incapacitated. This legal form makes it possible for the creator (a party called the Principal), to establish their healthcare wishes in law.
It also makes it possible for the Principal to elect another trusted individual (called the Agent or Attorney-in-Fact) to carry out their wishes in the event they become incapacitated. The Principal may either leave specific instructions for their Agent to uphold or grant the Agent with decision making powers to make any necessary decisions on their behalf on an as-needed basis.
State laws dictate the precise healthcare decisions a Principal can and cannot specify in the form. Generally, the Principal may state their healthcare preferences and instructions to their Agent in regards to:
- The administration, withholding, or withdrawal of life-sustaining procedures,
- The healthcare provider/s and institutions they will be treated at,
- Their consent or refusal to certain treatments, procedures, services, care, and
- The use of artificial nutrition and hydration.
Medical Power of Attorney Definitions
It can be confusing to understand the terminology used in Medical Power of Attorney laws and contracts. Below are some simplified definitions of key terms that the Principal may find useful to refer to.
“Principal”: The party who executes the Medical Power of Attorney in order to make a legally-binding record of their medical wishes and name an Agent who will ensure their wishes are followed.
“Agent”: The party who the Principal has selected to act on their behalf if they become incapacitated. Once the Medical Power of Attorney is executed, they will be granted legal decision making powers to carry out the Principal’s medical wishes.
“Incapacitated”: Describes the inability of the Principal to both understand and communicate their own healthcare choices and decisions. The Principal may become unable to do so due to sustaining a terminal illness or injury, or falling into a state of permanent unconsciousness. A doctor will usually be the only party who may declare the Principal to be incapacitated.
“Life-sustaining treatment”: Any treatment designed to help the Principal stay alive, such as cardiopulmonary resuscitation (CPR), surgery, dialysis, ventilation, antibiotics, and any other medical procedures that may be used in an attempt to extend the Principal’s life.
In order to ensure full legal compliance, the Principal should ensure the Medical POA uses the correct terminology found in their state’s respective state laws. It is also important to note that some states use different terminology to refer to a Medical Power of Attorney*, as well as different terminology to represent the parties of the Principal and the Agent. The following table highlights the differences in terminology evident across state laws.
Differences in Medical Power of Attorney Terminology Across the Country
|Terminology||Examples of Alternate Terminology Used in Some States|
|Medical Power of Attorney||Health Care Power of Attorney, Advance Directive, and Health Care Proxy|
|Principal||Patient, Declarant, and Grantor|
|Agent||Attorney-in-Fact, Health Care Agent, Health Care Proxy, and Health Care Surrogate|
* While the terms are often used interchangeably, technically, an Advance Directive and Medical Power of Attorney are not the same. In certain states, Advance Directives only permit the Principal to record their medical wishes and do not allow the Principal to elect an Agent. Whereas, states that permit Medical Power of Attorneys generally allow for the Principal to both record their medical wishes and elect an Agent to carry out those wishes.
Do I need a Medical Power of Attorney?
Many people question whether they really need a Medical Power of Attorney—especially if they are relatively young and healthy. They may think this legal document is only for the elderly or individuals with severe health complications.
This could not be further from the truth. If you have ever asked yourself, “Do I need a Medical Power of Attorney?” you may be surprised to learn that there are numerous advantages to executing one—even if you are still relatively young and healthy. Consider the following benefits to making a Power of Attorney when making your decision:
Benefit #1: You will be able to make a legally-binding record of your healthcare wishes and elect a responsible Agent while you are still in a healthy physical and mental state.
Benefit #2: You will not need to worry about your family, loved ones, or medical professionals overriding any healthcare wishes they disagree with even if you are unable to communicate them yourself.
Benefit #3: You will protect your family and loved ones from the heartache and stress of making critical healthcare decisions on your behalf.
Benefit #4: You will prevent disagreements among family members and loved ones if they have conflicting opinions about which best course of treatment or medical care to take.
Benefit #5: You will save your family and loved ones the significant cost, stress, and time incurred with undertaking guardianship proceedings if they wish to make medical decisions on your behalf if you become incapacitated.
Benefit #6: You will be able to ensure your spouse has access to your medical records, as HIPAA laws may prevent them from accessing your medical records.
Ultimately, it is your choice whether or not to create and execute a Medical Power of Attorney. However, you should keep in mind that there many good reasons why medical and legal professionals generally advocate the creation of these legal documents.
It should also be kept in mind that only you may create your own Medical Power of Attorney, so you cannot pass this task on to anyone else. Moreover, you may only create this form when you are in a capable state, meaning that once you are incapacitated, it is too late to execute one.
Therefore, if you are considering creating one, it is best to do so as soon as possible so that you can take comfort in the fact that all of your affairs will be in order if the worst-case scenario ensues. In short, when it comes to the question of creating a Medical Power of Attorneys, the general advice is that you should be “better safe than sorry.”
How to Get a Medical Power of Attorney
Getting a Medical Power of Attorney requires the Principal to follow a standardized set of steps.
1. Carefully consider and decide who will be their Agent / Attorney-in-Fact
The Principal should take all the time they need to select an Agent who they believe will communicate their healthcare wishes if one day they are not physically or mentally capable of doing so themselves.
2. Answer all compulsory sections of the Medical Power of Attorney form
In order to ensure the form is legally valid and can therefore be used in the event they become incapacitated, the Principal must answer any and all sections that their respective state laws demand must be answered.
3. Double-check any state signing requirements have been met
Most states impose strict signing requirements for the Principal to abide by. The requirements are often stricter than those for other types of Power of Attorneys, such as Durable and General POAs. So the Principal should consult their state POA laws to understand what is required of them in this regard.
4. Provide a copy of the form to the Agent
After the contract has been executed, the Principal should give a copy of it to their Agent. The importance of this step cannot be stressed enough—as the Principal will not be capable of doing so after they become incapacitated.
5. The Agent begins their role upon the contract coming into effect
The Agent will begin their respective duties as soon as the contract comes into effect. For more details about when a Medical POA may come into effect, and in turn, when the Agent may start acting on the Principal’s behalf, please refer to the section below, “When does a Medical Power of Attorney take effect?”
Medical Power of Attorney FAQ
– What rights & responsibilities does a Medical POA have?
A person who is serving as a Medical Power of Attorney (i.e., the Agent or Attorney-in-Fact) has particular rights that must be respected and responsibilities that must be upheld:
Rights of the Medical POA
- To serve on the Principal’s behalf in the manner he/she has permitted as per the terms of the agreement,
- To consult and communicate with the Principal’s medical team,
- To put forward the Principal’s medical wishes and demand that they are duly followed, and
- To access the Principal’s medical and hospital records (if the agreement provides for this).
Responsibilities of the Medical POA
- Carry out any instructions the Principal has left, on an as-needed basis,
- Make any necessary medical decisions on behalf of the Principal,
- Ensure that medical professionals are aware of and are duly following the Principal’s wishes,
- Always act in the best interests of the Principal, and
- Be available when they are called on by medical professionals.
– When does a Medical Power of Attorney take effect?
A Medical Power of Attorney takes effect at the time and/or in the circumstances that are explained in the terms of the contract. It is common for the Medical Power of Attorney to take effect only when the Principal becomes incapacitated. That means the Agent will only be permitted to start acting on the Principal’s behalf when they are declared by a medical professional to be incapacitated. State laws dictate the precise definition of what constitutes as being “incapacitated”.
Conversely, the Principal may decide to include provisions that allow the Principal to start acting on their behalf before their possible incapacitation. For instance, the contract may state that it will come into effect as soon as it is lawfully executed. Or, the contract may state one or more conditions that cause it to “spring” into effect e.g., if the Principal becomes terminally ill. If such provisions are included in the contract, the Principal will not need to wait until they are declared incapacitated in order to start receiving assistance from the Agent.
– Does a Medical Power of Attorney trump a spouse?
It is often assumed that a spouse will automatically be granted the right to make decisions on behalf of their incapacitated spouse. This is not always the case, however. A husband or wife does not have an inherent legal right to represent their incapacitated spouse’s wishes unless they have been named as their Agent in a Medical Power of Attorney.
Medical professionals and healthcare providers are under no obligation to honor the wishes of a spouse. That being said, many will seek the spouse’s opinions, especially in the absence of a Medical Power of Attorney. However, if the Principal has left a Medical POA in which they named another party to be their Agent who is not their spouse, the decision making powers of the named Agent will prevail over that of their spouse.
Therefore, it is strongly recommended that an individual creates a Medical Power of Attorney to prevent their wishes from being misrepresented. A Medical POA also acts as a means of ensuring that the party they want to serve as their Agent is legally permitted to do so. It is also worth considering that HIPAA healthcare privacy laws may place restrictions on a spouse to obtain a Principal’s medical records. On the other hand, a Medical Power of Attorney can provide a spouse with express permission to access such records.
In other words, if an individual wishes for their spouse to act on their behalf if they become incapacitated, they are advised to name their spouse as their Agent in a Medical POA. Conversely, if an individual does not wish for their spouse to step in for them in such circumstances, they are advised to name another party as their Agent in a Medical POA.
– Does a Medical Power of Attorney need to be Notarized?
Many states require a Notary Public or other person who is legally empowered to take acknowledgements to notarize a Medical Power of Attorney. It is the Principal’s responsibility to check what the signing requirements are for their state as these can vary substantially. For instance, notarization is required for an Idaho Medical POA to be lawfully executed. In contract, a Florida Medical POA does not require notarization, but instead requires two (2) witnesses to be present.
As a starting point, the Principal can select their respective state from the list above of state Power of Attorney pages and refer to the section, “State Laws & Signing Requirements.” There, they will find the main signing requirements that must be upheld in their state, as well as their state’s POA laws for further reading.
Even if the Principal’s state does not require notarization, notarization is still generally recommended as it allows for certain risks associated with the creation of this form to be minimized. For example, the Notary Public will be able to check that all parties are willingly entering into the legal arrangement, and that the Principal’s signature is genuine.
In states where witnesses are required, the Principal should ensure the witnesses they select comply with any witness criteria found in their state’s laws. For instance, many states, such as Florida, do not allow a witness to be anyone who is related to the Principal by blood or marriage, entitled to their estate upon their death, or is a medical professional in the facility where they are a patient.