Durable Power of Attorney for Health Care

Durable Power of Attorney for Health Care
Durable Power of Attorney for Health Care
Full Overview Of Durable Power of Attorney for Health Care

A Durable Power of Attorney for Health Care (DPAHC) is a crucial legal document that allows an individual (the principal) to appoint another person (the agent or attorney-in-fact) to make health care decisions on their behalf if they are unable to do so. This document is essential for ensuring that a person’s medical treatment preferences are honoured and followed during periods of incapacity. As legal professionals, it is important to have a thorough understanding of DPAHC in order to provide clients with informed guidance and support in creating these important directives. This overview will delve into the definition, purpose, legal requirements, implications, and practical considerations of a DPAHC.

Definition and Purpose

A Durable Power of Attorney for Health Care is a legal instrument that empowers an appointed agent to make medical decisions on behalf of the principal. Unlike a general power of attorney, which may cease to be effective if the principal becomes incapacitated, a DPAHC remains in force even if the principal loses the capacity to make informed decisions. The primary purpose of a DPAHC is to ensure that the principal’s healthcare preferences are upheld and that decisions are made in their best interest when they are unable to communicate their wishes.

Legal Requirements and Formalities

To create a valid DPAHC, several legal requirements and formalities must be met. These requirements can vary by jurisdiction, but common elements typically include:

  1. Competence: The principal must be mentally competent at the time of executing the DPAHC, understanding the nature and implications of the document.
  2. Written Document: The DPAHC must be in writing, clearly stating the principal’s intentions and the scope of the agent’s authority.
  3. Designation of Agent: The principal must designate one or more agents, specifying who will have the authority to make health care decisions.
  4. Durability Clause: The document must include language indicating that the power of attorney is durable, meaning it remains effective even if the principal becomes incapacitated.
  5. Signatures: The DPAHC must be signed by the principal, and in some jurisdictions, it may also require the signatures of witnesses or notarization to be legally binding.
  6. Specific Instructions: While not always required, it is advisable for the principal to include specific instructions or limitations on the agent’s authority to provide clear guidance on their preferences.

Scope and Limitations of Authority

The authority granted to an agent under a DPAHC can be broad or limited, depending on the principal’s wishes. Typically, the scope of the agent’s authority includes:

  1. Medical Treatment Decisions: The agent can consent to or refuse medical treatments, surgeries, medications, and other interventions based on the principal’s preferences and best interests.
  2. Access to Medical Records: The agent may have the right to access the principal’s medical records and information to make informed decisions.
  3. End-of-Life Care: The agent can make decisions regarding life-sustaining treatments, such as resuscitation, mechanical ventilation, and artificial nutrition and hydration.
  4. Placement in Health Care Facilities: The agent can decide on the principal’s placement in hospitals, nursing homes, or other health care facilities.
  5. Organ Donation: The agent may have the authority to make decisions regarding organ and tissue donation.

While the agent has significant decision-making power, there are limitations to their authority. The agent must act in accordance with the principal’s known wishes and best interests, and they cannot override specific instructions provided by the principal in the DPAHC or any other advance directives. Additionally, the agent is subject to legal and ethical obligations to act in good faith and avoid conflicts of interest.

Legal Implications and Considerations

The execution of a DPAHC carries several legal implications and considerations for both the principal and the agent:

  1. Protection of Autonomy: A DPAHC safeguards the principal’s autonomy by ensuring their healthcare preferences are respected even when they cannot communicate their wishes. This is particularly important in scenarios involving critical or end-of-life care.
  2. Legal Liability: Agents under a DPAHC must be aware of their legal responsibilities. They can be held liable for bad faith decisions or violating the principal’s known wishes. It is crucial for agents to document their decision-making process to demonstrate compliance with their duties.
  3. Revocation and Amendments: The principal retains the right to revoke or amend the DPAHC as long as they are mentally competent. Revocations and amendments should be made in writing and communicated to all relevant parties, including healthcare providers and the appointed agent.
  4. Dispute Resolution: Disputes regarding the principal’s care may arise among family members or between the agent and health care providers. Clear and specific instructions in the DPAHC can help mitigate such disputes, but legal intervention may sometimes be necessary.
  5. Interaction with Other Legal Documents: A DPAHC often interacts with other legal documents, such as living wills and general powers of attorney. Ensuring consistency and alignment among these documents is essential to avoid conflicts and confusion.

Practical Considerations for Legal Professionals

When advising clients on creating a DPAHC, legal professionals should consider several practical aspects to ensure the document’s effectiveness and clarity:

  1. Comprehensive Discussion: Engage in thorough discussions with the client to understand their values, preferences, and concerns regarding medical treatment and end-of-life care. This conversation should guide the drafting of the DPAHC.
  2. Selection of Agent: Help the client carefully select an agent who is trustworthy, capable, and willing to take on the responsibility. Encourage the client to talk candidly with the prospective agent about their expectations and wishes.
  3. Specific Instructions: Encourage the client to provide specific instructions in the DPAHC to guide the agent’s decision-making. This can include preferences for particular treatments, religious or cultural considerations, and scenarios where the client would prefer to forego life-sustaining interventions.
  4. Regular Reviews: Advise clients to periodically review and update their DPAHC to reflect any changes in their health, relationships, or preferences. Regular reviews ensure that the document remains relevant and accurate.
  5. Communication and Distribution: Emphasise the importance of communicating the existence and contents of the DPAHC to all relevant parties, including family members, healthcare providers, and the designated agent. Provide copies of the document to these parties to ensure accessibility when needed.
  6. Education and Training: Offer education and training to clients and their agents about the legal and ethical responsibilities associated with a DPAHC. Understanding these responsibilities can help prevent misunderstandings and ensure that decisions are made in accordance with the principal’s wishes.

Case Studies and Examples

To illustrate the application and significance of a DPAHC, consider the following case studies:

  1. Case Study: Critical Medical Decision: Mrs. Green, an elderly woman with advanced dementia, had previously executed a DPAHC appointing her daughter, Sarah, as her agent. When Mrs. Green was hospitalised with a severe infection, Sarah was able to make informed decisions about her mother’s treatment, including consenting to antibiotic therapy and declining invasive procedures that Mrs. Green had specified she did not want. The DPAHC ensured that Mrs. Green’s preferences were respected and Sarah’s authority was recognised by the medical team.
  2. Case Study: End-of-Life Care: Mr. Johnson, diagnosed with terminal cancer, created a DPAHC designating his partner, David, as his agent. The DPAHC included specific instructions about Mr. Johnson’s desire for palliative care and his wish to avoid life-prolonging treatments. When Mr. Johnson’s condition deteriorated, David was able to make decisions that aligned with Mr. Johnson’s wishes, ensuring a dignified and peaceful end-of-life experience. The clear instructions in the DPAHC prevented conflicts with other family members who had different opinions.
  3. Case Study: Dispute Resolution: Ms. Lee executed a DPAHC appointing her sister, Karen, as her agent. When Ms. Lee was rendered unconscious following a car accident, Karen faced opposition from other family members who disagreed with her decisions regarding Ms. Lee’s treatment. The DPAHC, which contained detailed instructions from Ms. Lee, provided legal backing for Karen’s decisions and helped resolve the dispute by clearly outlining Ms. Lee’s preferences.

Conclusion

A Durable Power of Attorney for Health Care is a crucial legal document that ensures an individual’s health care preferences are honoured during periods of incapacity. It allows a trusted agent to make critical medical decisions, providing peace of mind to the individual and their loved ones. Legal professionals play a vital role in guiding clients through the process of creating a DPAHC, ensuring that the document is comprehensive, clear, and legally sound.

By understanding the legal requirements, scope of authority, and practical considerations associated with a DPAHC, solicitors at DLS can provide valuable support to clients in crafting these important directives. Through thoughtful discussions, careful drafting, and ongoing education, legal professionals can help clients navigate the complexities of health care decision-making, ultimately safeguarding their autonomy and well-being. The significance of a DPAHC cannot be overstated, as it empowers individuals to have their medical preferences respected and provides clarity and guidance during challenging times.

Durable Power of Attorney for Health Care FAQ'S

In the UK, this is known as a Health and Welfare Lasting Power of Attorney (LPA). It allows an individual (the donor) to appoint someone (the attorney) to make decisions about their health and welfare if they lose the capacity to make those decisions themselves.

Any adult (18 years or older) whom the donor trusts can be appointed as an attorney. This could be a family member, friend, or professional.

The attorney can make decisions about the donor’s daily routine, medical care, moving into a care home, and life-sustaining treatment, depending on the powers granted in the LPA.

To create a Health and Welfare LPA, you need to complete the appropriate forms, have them signed by the donor, the attorney(s), and witnesses, and then register the LPA with the Office of the Public Guardian (OPG).

A Health and Welfare LPA only comes into effect when the donor loses the mental capacity to make their own health and welfare decisions.

Yes, the donor can revoke the LPA at any time, as long as they have the mental capacity to do so. The revocation must be made in writing and the Office of the Public Guardian must be notified.

If an attorney abuses their power, concerned parties can report the abuse to the Office of the Public Guardian, which can investigate and take action, including removing the attorney if necessary.

The attorney must act in the best interests of the donor and follow any instructions or preferences specified in the LPA. They cannot make decisions outside the scope of the authority granted in the LPA.

As of 2024, the fee to register an LPA with the Office of the Public Guardian is £82. Fee reductions or exemptions are available for those with low incomes or on certain benefits.

Yes, multiple attorneys can be appointed. The donor can specify whether they must act jointly (together on all decisions), jointly and severally (together or independently), or a combination of both for different decisions.

Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 11th July 2024.

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