Lee Drizin: Hi, everyone. This is Attorney Lee Drizin. Today, we’re going to be talking about what you should know about Durable Powers of Attorney for Health Care Decisions. This is probably one of the single most important parts of everyone’s estate plan that really isn’t given quite the attention that it should.
A Durable Powers of Attorney for Health Care Decisions is just the legal authorization by you, the “principal”, for another person, known as the “agent”, to make decisions regarding your health and medical care when you’re no longer able to provide informed consent.
Now, the key term here is that this only becomes effective when you are no longer able to make your own decisions and provide informed consent. The question is, “What is informed consent?” The determination as to whether or not you’re capable, you’re giving informed consent, it isn’t made by your attorney and it’s not made by your agent, it is made by your treating physician. Informed consent requires that the patient understand what the procedure is, why it’s being done, and what are the risks and benefits of the particular procedure.
In other words, you have to have the ability to weigh the pros and cons, and then you’re deemed to be able to give informed consent. When you’re not able to give informed consent that’s when your designee, the agent, can make medical and health care decisions for you.
It’s really important when you choose that agent that you give some thought to it. The most important obligation for the agent is that they have to act in accordance with the wishes that you express in the document. If those particular wishes are not expressed, then they have to act in your best interest. It has to be someone that you are really confident in their decision-making abilities.
Will the agent follow your wishes if I’m incapacitated?
Because that really is the issue here, it’s not about what their personal morals or belief system is, it’s will they follow what you’ve indicated to them in the document is the type of treatment that you want or don’t want under various circumstances.
I think one of the most important things that I always encourage my clients are before you execute a Durable Power of Attorney for Health Care, speak to the prospective agents. Do they know and understand what your feelings are about certain types of care in these different circumstances? It’s really important to take the time and express those desires and make sure that they feel comfortable following your wishes.
The scope of the authority for the agent is significant because they have the ability to consent, refuse to consent, or withdraw any consent regarding the care, treatment, service, or procedure to maintain, diagnose or treat a physical or mental condition. It’s a very broad authority the person has.
They have the ability to request, review, and receive any information, verbal or written, regarding your physical or mental health, including without limitation, medical and hospital records. That’s really important because obviously for this person that you designate to be able to make these decisions about your health care and your treatment, they need to have unfettered access to your medical records.
In addition, they can execute any releases or other documents that may be required in order for you to receive medical care or to obtain medical records, subject to any limitations that you may put in the Durable Power of Attorney. This is a very important document that is in each person’s estate plan.
For more information and resources that we have available visit our website. We have e-books about divorce, Nevada Probate, and in particular a little more in-depth about the health care power of attorney and our Guide to Nevada Estate Planning. Click on our website at www.drizinlaw.com.
We have a new video library that talks about some of these topics in more detail as well. Better yet, feel free to give us a call and set up a consultation to talk about these incredibly important issues that should not be overlooked. Take care and hope to hear from you soon.