Healthcare Powers of Attorney

The new healthcare reform statute, the Patient Protection and Affordable Care Act, will require that as part of the case review system used to assess and transition children who age out of foster care and independent living programs, states must provide information to the transitioning child on the importance of having a healthcare power of attorney (also sometimes referred to as giving a healthcare proxy).  Specifically, the state must provide information on the importance of designating another individual to make healthcare treatment decisions on his or her behalf, in the event he or she becomes unable to participate in healthcare-related decisions or does not want a relative who would otherwise have the power under state law to do so. 

A person over the age of 18 who is not physically or mentally incapacitated may also prepare an advance healthcare directive that spells out his or her wishes concerning end-of-life or other critical care.  The directive may be used alone or in concert with the power of attorney, and best practice would be for a competent individual to have both.  The statute does not spell this out as a requirement, so states may have discretion about how to counsel in this area.

Patients and caregivers should be aware that the healthcare power of attorney and advance directive are not the same as plan of care forms or forms describing current life-sustaining treatment options that may be used by nursing homes or other treatment facilities.  Those forms, which may include options discussed with a healthcare provider, do not have the legal impact of the power of attorney or directive.

Patients must consider their selection of a person or persons who can hold this power of attorney carefully.  Several states have passed legislation allowing doctors to serve as healthcare proxy for a patient; and the first inquiry for doctors should be whether such legislation offers any safe harbors.   Before agreeing to take on this responsibility for a patient who has other options for appointing a proxy, a physician may want to seek legal advice.

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