In our last column, we discussed a living will, an important estate-planning document. In this column, we will discuss another important document, a health-care power of attorney, which works in conjunction with a living will.
The standard forms for health-care powers of attorney were rewritten recently by the Legislature. Changes were effective Oct. 1.
If you have a valid health-care power of attorney that was properly executed before last Oct. 1, it is still valid, but you should consider a new one, because the new document will provide more detailed direction.
A health-care power of attorney allows you to appoint another person who may consent or decline medical care on your behalf if you are not able to make or communicate these decisions yourself.
Here are the key sections of the new document:
Designation of your health-care agent. You may list one or more agents, along with their contact information. They can work together or separately.
Which doctor decides if you are not able to make these decisions yourself? You have the ability to name your doctor to make that assessment, or have the attending physician make that decision.
Revocation. You may revoke this power of attorney in writing, or by communicating your intent to revoke it in "any clear and consistent manner," to your health-care agent or health-care provider.
General statement of authority granted. This section grants a broad array of standard powers to be sure that your agent is fully equipped to make any and all necessary decisions regarding your health care.
Special provisions and limitations. This section is a much needed improvement. It expands your ability to define more precisely any limitations to which you want your agent to be subject regarding health-care decisions, including:
□ Whether artificial nutrition or hydration (through tubes) may be given, and if so, with any limitations.
□Limitations concerning other health-care decisions. You may provide specific direction about when you want life-prolonging measures withheld or discontinued, or instructions to refuse any kinds of treatment that you may view as inconsistent with your religious beliefs, or which are unacceptable to you for any other reason. This can include mental-health-care decisions.
□ Autopsy and disposition of remains.
□ Organ donation.
□ Reliance of third parties on health-care agent. These provisions provide needed protection for health-care providers who rely in good faith upon the authority of or representations by your health-care agents. These provisions also clarify that "[t]he authority of [your] health care agent … shall be superior to and binding upon [your] family, relatives, friend, and others."
□ Miscellaneous provisions. You state that you revoke any prior health-care powers of attorney you may have executed; there is necessary protection for your health-care agent for actions he takes on your behalf (unless willful misconduct or gross negligence); and reimbursement for all reasonable expenses incurred by your agent is authorized.
One of the main reasons the new law was enacted is to improve the "fit" between living wills and health-care powers of attorney. Under the law before last Oct. 1, a health-care agent may have been able to make choices inconsistent with what the declarant stated in their living will.
Working together, the living will and health-care power of attorney define clearly what authority the health-care agent has, or what limits there are on that authority, to override or modify what the declarant has stated in the living will.
■ R. Michael Wells is the senior partner of Wells Jenkins Lucas & Jenkins.
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