Overlooking a Health Care Power of Attorney Can Be Costly

By Adil Daudi, Esq.

A very important estate planning tool that is not given the same attention as a Durable General Power of Attorney is the Health Care Power of Attorney (HCPOA). A HCPOA is a document that gives someone you trust the ability to make your medical decisions for you when you are unable to do so yourself. Once drafted, signed and witnessed, the patient advocate (person appointed) appointed is essentially filling the shoes of the principal (person signing the document) with respect to all health care decisions; thus, physicians are expected to respect and abide by their decisions as if they were being made by the principal individual himself.

Appointing someone to act as your HCPOA plays a significant role for not just the principal, but also for the patient advocate. Without a properly drafted HCPOA, and in the event you have a loved one (e.g. spouse) in the unfortunate situation of being admitted into the hospital, you would have no authority to make medical decisions on your spouse’s behalf. The proper procedure would be to file a petition with the court and be appointed as their Guardian/Conservator. This process can be time consuming and even costly.

When drafting your personal HCPOA document there is a particular section that deserves close attention. In the event you are in a persistent vegetative state or an irreversible coma, you will have to select who it is that you want to weigh the burden of your treatment versus the benefit. The three choices are: (1) Allowing your patient advocate to decide whether the burden of treatment outweighs the benefit; and based on that decision, your patient advocate has the authority to stop further treatment; (2) Allow the doctor to reasonably conclude that the burden of treatment outweighs the benefit; and based on the doctor’s decision, the doctor will decide whether to stop further treatment; and (3) Allow you to live as long as possible regardless of the burden and cost of treatment.

These are three important choices that need to be carefully addressed. By making such a decision it allows your patient advocate to know beforehand that they are responsible for your medical treatment. Through careful planning and by appointing a trustworthy patient advocate, it can bring significant ease to your personal estate. It is advised to appoint someone who is close to you and who knows your wishes, whether religious or personal, as that person can then make the proper decisions with your specific intent in mind.

Rather than going through the stress of probate, a HCPOA is the simple document that can protect your wishes as the principal and provide your patient advocate with the convenience that they would not otherwise have.

Adil Daudi is an Attorney at Joseph, Kroll & Yagalla, P.C., focusing primarily on Estate Planning, Shariah Estate Planning, Asset Protection, Business Litigation, Corporate Formations, Physician Contracts, and Family Law. To contact him for any questions related to this article or other areas of law, he can be reached at adil@josephlaw.net or (517) 381-2663.

13-20