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Health Care Power of Attorney: Take Control When Things Get Out of Control

Estate Planning, Legal Insights

We all want control. With a healthcare power of attorney, you can maintain some control over medical treatment when you can’t speak for yourself. It’s a potentially powerful document, but it’s only a piece of paper if it’s not enforced. In addition to the document, you need someone you trust to take control of a bad situation, act for you, and follow your instructions.

A healthcare power of attorney is a legal document where you name someone else (your agent) to make your medical decisions when you cannot. Your agent is responsible for gathering all the relevant information about your condition, consulting with your physicians, and making sure your desires are properly put into action.

Everyone should have a health care power of attorney document because we never know when a serious accident may happen, literally knocking us out and making it impossible for us to communicate. They’re most often created by people diagnosed with chronic or fatal conditions because they know, at some point, they will lose consciousness and be unable to make decisions for themselves. If you’re undergoing serious surgery, you should also have this document created, because a mistake may happen and you may not be able to speak for yourself.

Without a power of attorney, a hospital should turn to your next of kin. But you and your next of kin may not agree on what should happen next. If your next of kin is more than one person (parents, siblings, or children), they may disagree amongst themselves about what to do, especially if your life is hanging in the balance.

A recent article by ProPublica about Newark Beth Israel Medical Center’s heart transplant program illustrates another, hopefully very rare, conflict of interest by healthcare providers. Not only do you need a healthcare power of attorney, but your agent also needs to actively advocate for you, be capable of asking your physicians hard questions, and be able to make difficult choices — such as removing you from a ventilator and end your life, if that’s what your instructions include.

The Newark hospital’s physicians were accused of putting their interests ahead of those of their patients, specifically a man named Darryl, who underwent a heart transplant procedure but never woke up. While unconscious and on a respirator, for months, he suffered several complications, including a stroke. Allegedly, staff physicians never expected Darryl to regain consciousness or recover, but kept him on life support to improve the program’s statistics reflecting transplant recipients who lived at least a year after the surgery, all to help maintain the hospital’s Medicare funding.

In your health care power of attorney, you can state under what circumstances – if any – you want to be physically kept alive, such as brain damage so severe that you would be considered “brain dead.” If you do not want to be kept on a respirator in this situation, you could spell that out in your power of attorney.

If Darryl had a healthcare power of attorney and you were his agent, you would need to find out what happened and why, and get a second opinion if you thought that would help you decide what to do next. Ultimately, you would need to follow his directions and make decisions that benefit him, which may or may not benefit the hospital. You would be Darryl’s voice because he had none.

If you’re unconscious and medical decisions must be made, you should have someone trustworthy and able to make tough decisions. Through a healthcare power of attorney, you – not the hospital or next of kin, through your agent, will be able to make those decisions.

Creating a healthcare power of attorney can prevent a bad medical situation from becoming worse because it allows you a measure of control over your treatment at a time when a direction is needed, but you can’t speak for yourself. It also can make the situation better for your family, because they would know what you want and could take action to honor your wishes. Talk with one of our estate-planning attorneys so we can discuss how a healthcare power of attorney can help you and your family.

 

 

 

 

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