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In the last article, we discussed many factors you might consider in deciding whether or not you want to pursue guardianship or powers of attorney. Let's say you have chosen to have your child sign powers of attorney. Although every state has its power of attorney for healthcare statutory forms, most state forms break down into three essential parts:
This article discusses these three essential parts. And at the end of the chapter is a sample power of attorney for healthcare.
To demonstrate, I will highlight various sections from the Illinois power of attorney for healthcare where I live. If you want to see your state's form, just google "power of attorney for healthcare" and add the state where your child lives to the search query. Most states’ power of attorney for healthcare forms is are quite similar.
Even though you can easily find your state’s power of attorney for healthcare form online, I recommend you hire a local attorney to draft one for your child. Working with an attorney will ensure your child signs the most recent form. Your local attorney will also be able to explain a power of attorney and will know which options and agent powers are best for your child. You will also want the same attorney to draft a power of attorney for property for your child. You will likely hire the same attorney to draft your estate plan, including a special needs trust.
Agent Lineup
The most basic thing a power of attorney for healthcare does is state who your child is appointing as an agent. Your child generally wants to name as many people as they trust and no more. Most states require only one agent to be appointed at a time. With my clients, the adult child usually names mom as their first agent and dad as their second agent. Then ask yourself, "Who do I want to be an agent for my child's power of attorney if I died or was incapacitated?" Of course, agent selection is ultimately your child’s decision.
To draft the documents, your attorney will need the following information about each agent named in a power of attorney:
I recommend you also tell your attorney how the agent is related to your child if the agent is related. For example, a well-written description might read, My uncle, Robert Smith, of 238 Oak St., Seattle, WA, phone: 123-45-6891. You don't want a holdup in care for your child because the legal department of a hospital is trying to figure out who your child named as an agent. Some attorneys are lax about identifying agents. Many agents are identified only by their name -- no address, phone number, or mention of a relationship.
Agent’s Decision-Making Authority
The second part of the healthcare power of attorney form deals with the nature and extent of the agent's (likely you) authority to make healthcare decisions for the principal (your child). Powers of attorney are what the law calls an agency relationship. Your child is the principal, and you are their agent. A power of attorney grants you the authority to represent your child.
What authority or power do you have as an agent? Your adult child can grant you various powers. The best way to illustrate these different powers is by discussing my state's form in Illinois. If you understand the various powers a principal could grant an agent in my state’s form, you will know what to look for in your state’s form.
In Illinois, the principal (the adult child) must check one of three options:
____________________________________________________________________________
I AUTHORIZE MY AGENT TO (please check any one box):
_____ Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability.
______ Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability. Starting now, for the purpose of assisting me with my health care plans and decisions, my agent shall have complete access to my medical and mental health records, the authority to share them with others as needed, and the complete ability to communicate with my personal physician(s) and other health care providers, including the ability to require an opinion of my physician as to whether I lack the ability to make decisions for myself.
_____ Make decisions for me starting now and continuing after I am no longer able to make them for myself. While I am still able to make my own decisions, I can still do so if I want to.
_____________________________________________________________________________
First Option: This is the most restrictive option. If your child names you as their agent and checks the first option, you can only talk to your child's doctor about your child and decide for them once the doctor determines that your child cannot make their own healthcare decision decisions. You likely would want your child to avoid picking this option.
Second Option: This option is less restrictive. If your child names you as their agent and checks the second option, you could immediately talk to your child's doctors. However, you can only decide for your child once a doctor determines your child cannot make their own healthcare decisions. This option is better than the first option because you can talk to your child's doctors and other medical professionals. By doing so, you can then coach your child to make the best decision. However, you cannot decide for your child unless a doctor determines that your child is unable to make their own decisions.
Third Option: This is usually the best option. If your child names you as their agent and checks the third option, you can talk to your child’s doctor and make a healthcare decision for your child immediately. Although you have this right to decision-making, it does not take any legal rights away from your child. Your child could override you. This third option lets you be proactive and make a decision for your child without getting entangled in the medical bureaucracy of having to get a doctor's determination that your child cannot make their own decisions. This option is the path of least bureaucratic friction.
Although your state's power of attorney for healthcare form will differ, you now understand various options. If your state does not have an equivalent to option three - don't despair. As long as you have the right to view your child’s medical records and talk with your child’s doctors, you can help coach your child to make a good decision.
End-of-Life Decisions
This part of the statutory form guides the agent about end-of-life issues when the principal (your child) is terminally and imminently ill and is unable to make their own healthcare decisions. In Illinois, the principal (your child) does not have to select one of the two options. If the principal does not pick one of the options, then the end-of-life decision simply depends on the agent's discretion.
With the Illinois form, the options are pretty straightforward. Below are the two options that the principal can choose. Almost everyone picks the first option if the principal chooses one of the two options—the so-called "quality of life" option.
______________________________________________________________________________
______ The quality of my life is more important than the length of my life. If I am unconscious and my attending physician believes, in accordance with reasonable medical standards, that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings, I do not want treatments to prolong my life or delay my death, but I do want treatment or care to make me comfortable and to relieve me of pain.
_______ Staying alive is more important to me, no matter how sick I am, how much I am suffering, the cost of the procedures, or how unlikely my chances for recovery are. I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards.
______________________________________________________________________________
As you can see with the sample Power of Attorney for Healthcare form below, a power of attorney grants the agent many powers:
It's important to note that the agent under a power of attorney for healthcare is not responsible for the principal's (the adult child with a disability) healthcare expenses.
After your child signs a power of attorney for healthcare, you should keep it at home -- not in a safe deposit box. That way, if your child becomes ill on a Sunday, it’s accessible. As an extra layer of protection, the next time your child visits their doctor, take the power of attorney to the meeting and ask the doctor to scan the document into your child's digital medical record. However, make sure you keep the original. And as a third layer of protection, give copies of a power of attorney to successor agents. Some clients even keep a copy of the healthcare power of attorney in their car’s glove box.
If your child wants to make a change to a power of attorney. No problem. Destroy the original and any duplicates. Have your child fill out a new form and give the successor agents named a copy. In any event, most powers of attorney in the first line or two revoke all prior powers of attorney.
Finally, one more related document - The Authorization for Use and Release of Medical Information -- commonly called a HIPAA. In many states, your child can only name one agent at a time. Often, the adult child names mom as the first agent and dad as the second agent. What if the dad wants to talk to the child's doctor about the child's medical condition? The dad doesn't want to make a decision; he just wants information. Hopefully, as the number two agent, Dad could receive information. However, just in case, you can have the adult child sign a "HIPAA" document granting the successor agents the right to talk with the adult child's doctors to obtain medical information. However, the HIPAA only gives someone the right to access medical information, not decide for an adult child with a disability.
Sample Form
Below is a sample power of attorney for healthcare statutory form from my state of Illinois:
____________________________________________________________
MY POWER OF ATTORNEY FOR HEALTH CARE
THIS POWER OF ATTORNEY REVOKES ALL PREVIOUS POWERS OF ATTORNEY FOR HEALTH CARE. (You must sign this form and a witness must also sign it before it is valid)
My name:
My address:
I WANT THE FOLLOWING PERSON TO BE MY HEALTH CARE AGENT (an agent is your personal representative under state and federal law):
(Agent name):
(Agent address):
(Agent phone number):
(Please check box if applicable)
................If a guardian of my person is to be appointed, I nominate the agent acting under this power of attorney as guardian.
SUCCESSOR HEALTH CARE AGENT(S) (optional): If the agent I selected is unable or does not want to make health care decisions for me, then I request the person(s) I name below to be my successor health care agent(s). Only one person at a time can serve as my agent (add another page if you want to add more successor agent names):
…………………………………………………………………………...
(Successor agent #1 name, address and phone number)
…………………………………………………………………………...
(Successor agent #2 name, address and phone number)
MY AGENT CAN MAKE HEALTH CARE DECISIONS FOR ME, INCLUDING:
(i) Deciding to accept, withdraw or decline treatment for any physical or mental condition of mine, including life-and-death decisions.
(ii) Agreeing to admit me to or discharge me from any hospital, home, or other institution, including a mental health facility.
(iii) Having complete access to my medical and mental health records, and sharing them with others as needed, including after I die.
(iv) Carrying out the plans I have already made, or,if I have not done so, making decisions about my body or remains, including organ, tissue or whole body donation, autopsy, cremation, and burial.
The above grant of power is intended to be as broad as possible so that my agent will have the authority to make any decision I could make to obtain or terminate any type of health care, including withdrawal of nutrition and hydration and other life-sustaining measures.
I AUTHORIZE MY AGENT TO (please check any one box):
.............. Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability.
(If no box is checked, then the box above shall be implemented.) OR
............. Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability. Starting now, for the purpose of assisting me with my health care plans and decisions, my agent shall have complete access to my medical and mental health records, the authority to share them with others as needed, and the complete ability to communicate with my personal physician(s) and other health care providers, including the ability to require an opinion of my physician as to whether I lack the ability to make decisions for myself. OR
………... Make decisions for me starting now and continuing after I am no longer able to make them for myself. While I am still able to make my own decisions, I can still do so if I want to.
The subject of life-sustaining treatment is of particular importance. Life-sustaining treatments may include tube feedings or fluids through a tube, breathing machines, and CPR. In general, in making decisions concerning life-sustaining treatment, your agent is instructed to consider the relief of suffering, the quality as well as the possible extension of your life, and your previously expressed wishes. Your agent will weigh the burdens versus benefits of proposed treatments in making decisions on your behalf. Additional statements concerning the withholding or removal of life-sustaining treatment are described below. These can serve as a guide for your agent when making decisions for you. Ask your physician or health care provider if you have any questions about these statements.
SELECT ONLY ONE STATEMENT BELOW THAT BEST EXPRESSES YOUR WISHES (optional):
……….…… The quality of my life is more important than the length of my life. If I am unconscious and my attending physician believes, in accordance with reasonable medical standards, that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings, I do not want treatments to prolong my life or delay my death, but I do want treatment or care to make me comfortable and to relieve me of pain.
…………….. Staying alive is more important to me, no matter how sick I am, how much I am suffering, the cost of the procedures, or how unlikely my chances for recovery are. I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards.
SPECIFIC LIMITATIONS TO MY AGENT'S DECISION-MAKING AUTHORITY: The above grant of power is intended to be as broad as possible so that your agent will have the authority to make any decision you could make to obtain or terminate any type of health care. If you wish to limit the scope of your agent's powers or prescribe special rules or limit the power to authorize autopsy or dispose of remains, you may do so specifically in this form.
.......................................................................................................................
.......................................................................................................................
My signature:.................................................
Today's date:
HAVE YOUR WITNESS AGREE TO WHAT IS WRITTEN BELOW, AND THEN COMPLETE THE SIGNATURE PORTION: I am at least 18 years old. (check one of the options below):
…..….. I saw the principal sign this document, or
……... the principal told me that the signature or mark on the principal signature line is his or hers.
I am not the agent or successor agent(s) named in this document. I am not related to the principal, the agent, or the successor agent(s) by blood, marriage, or adoption. I am not the principal's physician, advanced practice nurse, dentist, podiatric physician, optometrist, psychologist, or a relative of one of those individuals. I am not an owner or operator (or the relative of an owner or operator) of the health care facility where the principal is a patient or resident.
Witness printed name:...................................................
Witness address:.............................................................................................
Witness signature:........................................................
Today's date:
In the last article, we discussed many factors you might consider in deciding whether or not you want to pursue guardianship or powers of attorney. Let's say you have chosen to have your child sign powers of attorney. Although every state has its power of attorney for healthcare statutory forms, most state forms break down into three essential parts:
- The lineup of successor agents;
- The agent's decision-making authority; and
- Guidance regarding end-of-life issues.
This article discusses these three essential parts. And at the end of the chapter is a sample power of attorney for healthcare.
To demonstrate, I will highlight various sections from the Illinois power of attorney for healthcare where I live. If you want to see your state's form, just google "power of attorney for healthcare" and add the state where your child lives to the search query. Most states’ power of attorney for healthcare forms is are quite similar.
Even though you can easily find your state’s power of attorney for healthcare form online, I recommend you hire a local attorney to draft one for your child. Working with an attorney will ensure your child signs the most recent form. Your local attorney will also be able to explain a power of attorney and will know which options and agent powers are best for your child. You will also want the same attorney to draft a power of attorney for property for your child. You will likely hire the same attorney to draft your estate plan, including a special needs trust.
Agent Lineup
The most basic thing a power of attorney for healthcare does is state who your child is appointing as an agent. Your child generally wants to name as many people as they trust and no more. Most states require only one agent to be appointed at a time. With my clients, the adult child usually names mom as their first agent and dad as their second agent. Then ask yourself, "Who do I want to be an agent for my child's power of attorney if I died or was incapacitated?" Of course, agent selection is ultimately your child’s decision.
To draft the documents, your attorney will need the following information about each agent named in a power of attorney:
- Full name;
- Street address;
- Phone number.
I recommend you also tell your attorney how the agent is related to your child if the agent is related. For example, a well-written description might read, My uncle, Robert Smith, of 238 Oak St., Seattle, WA, phone: 123-45-6891. You don't want a holdup in care for your child because the legal department of a hospital is trying to figure out who your child named as an agent. Some attorneys are lax about identifying agents. Many agents are identified only by their name -- no address, phone number, or mention of a relationship.
Agent’s Decision-Making Authority
The second part of the healthcare power of attorney form deals with the nature and extent of the agent's (likely you) authority to make healthcare decisions for the principal (your child). Powers of attorney are what the law calls an agency relationship. Your child is the principal, and you are their agent. A power of attorney grants you the authority to represent your child.
What authority or power do you have as an agent? Your adult child can grant you various powers. The best way to illustrate these different powers is by discussing my state's form in Illinois. If you understand the various powers a principal could grant an agent in my state’s form, you will know what to look for in your state’s form.
In Illinois, the principal (the adult child) must check one of three options:
____________________________________________________________________________
I AUTHORIZE MY AGENT TO (please check any one box):
_____ Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability.
______ Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability. Starting now, for the purpose of assisting me with my health care plans and decisions, my agent shall have complete access to my medical and mental health records, the authority to share them with others as needed, and the complete ability to communicate with my personal physician(s) and other health care providers, including the ability to require an opinion of my physician as to whether I lack the ability to make decisions for myself.
_____ Make decisions for me starting now and continuing after I am no longer able to make them for myself. While I am still able to make my own decisions, I can still do so if I want to.
_____________________________________________________________________________
First Option: This is the most restrictive option. If your child names you as their agent and checks the first option, you can only talk to your child's doctor about your child and decide for them once the doctor determines that your child cannot make their own healthcare decision decisions. You likely would want your child to avoid picking this option.
Second Option: This option is less restrictive. If your child names you as their agent and checks the second option, you could immediately talk to your child's doctors. However, you can only decide for your child once a doctor determines your child cannot make their own healthcare decisions. This option is better than the first option because you can talk to your child's doctors and other medical professionals. By doing so, you can then coach your child to make the best decision. However, you cannot decide for your child unless a doctor determines that your child is unable to make their own decisions.
Third Option: This is usually the best option. If your child names you as their agent and checks the third option, you can talk to your child’s doctor and make a healthcare decision for your child immediately. Although you have this right to decision-making, it does not take any legal rights away from your child. Your child could override you. This third option lets you be proactive and make a decision for your child without getting entangled in the medical bureaucracy of having to get a doctor's determination that your child cannot make their own decisions. This option is the path of least bureaucratic friction.
Although your state's power of attorney for healthcare form will differ, you now understand various options. If your state does not have an equivalent to option three - don't despair. As long as you have the right to view your child’s medical records and talk with your child’s doctors, you can help coach your child to make a good decision.
End-of-Life Decisions
This part of the statutory form guides the agent about end-of-life issues when the principal (your child) is terminally and imminently ill and is unable to make their own healthcare decisions. In Illinois, the principal (your child) does not have to select one of the two options. If the principal does not pick one of the options, then the end-of-life decision simply depends on the agent's discretion.
With the Illinois form, the options are pretty straightforward. Below are the two options that the principal can choose. Almost everyone picks the first option if the principal chooses one of the two options—the so-called "quality of life" option.
______________________________________________________________________________
______ The quality of my life is more important than the length of my life. If I am unconscious and my attending physician believes, in accordance with reasonable medical standards, that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings, I do not want treatments to prolong my life or delay my death, but I do want treatment or care to make me comfortable and to relieve me of pain.
_______ Staying alive is more important to me, no matter how sick I am, how much I am suffering, the cost of the procedures, or how unlikely my chances for recovery are. I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards.
______________________________________________________________________________
As you can see with the sample Power of Attorney for Healthcare form below, a power of attorney grants the agent many powers:
- The power to talk with your healthcare providers;
- The power to see your medical records and approve who else can see them;
- The power to give permission for medical tests, medicines, surgery, and other treatments;
- The power to choose where you receive care.
- The power to decide to accept, withdraw, or decline treatments if you are near death;
- The power to agree or decline to donate your organs;
- The power to decide what to do with your remains after you have died if you have not already made plans.
It's important to note that the agent under a power of attorney for healthcare is not responsible for the principal's (the adult child with a disability) healthcare expenses.
After your child signs a power of attorney for healthcare, you should keep it at home -- not in a safe deposit box. That way, if your child becomes ill on a Sunday, it’s accessible. As an extra layer of protection, the next time your child visits their doctor, take the power of attorney to the meeting and ask the doctor to scan the document into your child's digital medical record. However, make sure you keep the original. And as a third layer of protection, give copies of a power of attorney to successor agents. Some clients even keep a copy of the healthcare power of attorney in their car’s glove box.
If your child wants to make a change to a power of attorney. No problem. Destroy the original and any duplicates. Have your child fill out a new form and give the successor agents named a copy. In any event, most powers of attorney in the first line or two revoke all prior powers of attorney.
Finally, one more related document - The Authorization for Use and Release of Medical Information -- commonly called a HIPAA. In many states, your child can only name one agent at a time. Often, the adult child names mom as the first agent and dad as the second agent. What if the dad wants to talk to the child's doctor about the child's medical condition? The dad doesn't want to make a decision; he just wants information. Hopefully, as the number two agent, Dad could receive information. However, just in case, you can have the adult child sign a "HIPAA" document granting the successor agents the right to talk with the adult child's doctors to obtain medical information. However, the HIPAA only gives someone the right to access medical information, not decide for an adult child with a disability.
Sample Form
Below is a sample power of attorney for healthcare statutory form from my state of Illinois:
____________________________________________________________
MY POWER OF ATTORNEY FOR HEALTH CARE
THIS POWER OF ATTORNEY REVOKES ALL PREVIOUS POWERS OF ATTORNEY FOR HEALTH CARE. (You must sign this form and a witness must also sign it before it is valid)
My name:
My address:
I WANT THE FOLLOWING PERSON TO BE MY HEALTH CARE AGENT (an agent is your personal representative under state and federal law):
(Agent name):
(Agent address):
(Agent phone number):
(Please check box if applicable)
................If a guardian of my person is to be appointed, I nominate the agent acting under this power of attorney as guardian.
SUCCESSOR HEALTH CARE AGENT(S) (optional): If the agent I selected is unable or does not want to make health care decisions for me, then I request the person(s) I name below to be my successor health care agent(s). Only one person at a time can serve as my agent (add another page if you want to add more successor agent names):
…………………………………………………………………………...
(Successor agent #1 name, address and phone number)
…………………………………………………………………………...
(Successor agent #2 name, address and phone number)
MY AGENT CAN MAKE HEALTH CARE DECISIONS FOR ME, INCLUDING:
(i) Deciding to accept, withdraw or decline treatment for any physical or mental condition of mine, including life-and-death decisions.
(ii) Agreeing to admit me to or discharge me from any hospital, home, or other institution, including a mental health facility.
(iii) Having complete access to my medical and mental health records, and sharing them with others as needed, including after I die.
(iv) Carrying out the plans I have already made, or,if I have not done so, making decisions about my body or remains, including organ, tissue or whole body donation, autopsy, cremation, and burial.
The above grant of power is intended to be as broad as possible so that my agent will have the authority to make any decision I could make to obtain or terminate any type of health care, including withdrawal of nutrition and hydration and other life-sustaining measures.
I AUTHORIZE MY AGENT TO (please check any one box):
.............. Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability.
(If no box is checked, then the box above shall be implemented.) OR
............. Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability. Starting now, for the purpose of assisting me with my health care plans and decisions, my agent shall have complete access to my medical and mental health records, the authority to share them with others as needed, and the complete ability to communicate with my personal physician(s) and other health care providers, including the ability to require an opinion of my physician as to whether I lack the ability to make decisions for myself. OR
………... Make decisions for me starting now and continuing after I am no longer able to make them for myself. While I am still able to make my own decisions, I can still do so if I want to.
The subject of life-sustaining treatment is of particular importance. Life-sustaining treatments may include tube feedings or fluids through a tube, breathing machines, and CPR. In general, in making decisions concerning life-sustaining treatment, your agent is instructed to consider the relief of suffering, the quality as well as the possible extension of your life, and your previously expressed wishes. Your agent will weigh the burdens versus benefits of proposed treatments in making decisions on your behalf. Additional statements concerning the withholding or removal of life-sustaining treatment are described below. These can serve as a guide for your agent when making decisions for you. Ask your physician or health care provider if you have any questions about these statements.
SELECT ONLY ONE STATEMENT BELOW THAT BEST EXPRESSES YOUR WISHES (optional):
……….…… The quality of my life is more important than the length of my life. If I am unconscious and my attending physician believes, in accordance with reasonable medical standards, that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings, I do not want treatments to prolong my life or delay my death, but I do want treatment or care to make me comfortable and to relieve me of pain.
…………….. Staying alive is more important to me, no matter how sick I am, how much I am suffering, the cost of the procedures, or how unlikely my chances for recovery are. I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards.
SPECIFIC LIMITATIONS TO MY AGENT'S DECISION-MAKING AUTHORITY: The above grant of power is intended to be as broad as possible so that your agent will have the authority to make any decision you could make to obtain or terminate any type of health care. If you wish to limit the scope of your agent's powers or prescribe special rules or limit the power to authorize autopsy or dispose of remains, you may do so specifically in this form.
.......................................................................................................................
.......................................................................................................................
My signature:.................................................
Today's date:
HAVE YOUR WITNESS AGREE TO WHAT IS WRITTEN BELOW, AND THEN COMPLETE THE SIGNATURE PORTION: I am at least 18 years old. (check one of the options below):
…..….. I saw the principal sign this document, or
……... the principal told me that the signature or mark on the principal signature line is his or hers.
I am not the agent or successor agent(s) named in this document. I am not related to the principal, the agent, or the successor agent(s) by blood, marriage, or adoption. I am not the principal's physician, advanced practice nurse, dentist, podiatric physician, optometrist, psychologist, or a relative of one of those individuals. I am not an owner or operator (or the relative of an owner or operator) of the health care facility where the principal is a patient or resident.
Witness printed name:...................................................
Witness address:.............................................................................................
Witness signature:........................................................
Today's date: