Health Care Power of Attorney

Many of you have personal experience with a loved one in a hospital during their final days or months. If this person has not prepared a Health Care Power of Attorney, who will make health care decisions for them if they are not able to make their own decisions? That is a good question… Many times doctors and hospitals are placed in an impossible situation by the people they are caring for and their families. The hospital and doctors are required to provide necessary care to those who are in their charge. However, if the persons they are treating cannot speak for themselves and do not have adequate health care documents, then no one can make legal health care decisions for them. This situation becomes much worse in cases when there is disagreement among family members.

A Health Care Power of Attorney should be a document that covers only your health care decisions. I see health care provisions “tagged onto” a property power of attorney, but feel that this is a bad idea for the following reasons: (1) There is a separate body of law governing health care powers of attorney under Arkansas law, the "Durable Power of Attorney for Health Care Act" (A.C.A. § 20-13-104) Durable property powers of attorney are governed by A.C.A. § 28-68-201. Therefore, the provisions should not be morphed together in one document; (2) The documents are prepared for totally different uses – one for the medical community and one for the financial community. For privacy and convenience reasons, they should be separate; (3) It is very common to state that, in the event of an incapacity, one individual or entity shall make financial decisions for you and a separate individual or entity shall make health care decisions for you – again, this should be done in separate documents.

It is important to decide which family member or friend that you wish to appoint as your health care attorney-in-fact and have a discussion with him or her to make sure that they are able and willing to carry out the decisions that you would like to have made on your behalf if you are not able to make them yourself. This is not an easy discussion to have, but it is important to make sure that this person is comfortable with the decisions that they are being asked to make on your behalf and will be willing to do so when the time comes.
It is also very important to name a back-up. Many times, people only name their spouse or one child. If you were in a car wreck and that one person was with you, your appointee would not be able to act. For this reason, you should not only appoint a back-up, but you should also have “the discussion” with an adult child or friend who could fill-in if your first choice is deceased or unable or unwilling to act.

Sometimes people want to name all of their children as co-health care attorneys in fact. Although this can legally be done, it’s probably not a good idea. If the agreement of all children are required to make a decision and one doesn’t agree or is out of town, there will be a stale-mate. Additionally, if time critical health care decisions need to be made, you don’t want a committee meeting. It’s important that, if available, all children discuss this issue, but in the end, the decision should be made by one family member or friend.

As you can see from this brief discussion, appointing a health care decision maker is critically important. Do yourself, your family and the medical community a favor by setting an appointment with your estate planning attorney to do a proper health care power of attorney.