What You Should Know About Health Care Powers of Attorney
1. What is a Health Care Power of Attorney?
A Health Care Power of Attorney is a personal legal document that nominates someone (the “agent”) to make medical decisions on behalf of the person signing the document (the “principal”) if the principal is unable to communicate due to mental incapacity.
In addition to naming an agent for medical decisions, this document names a “Personal Representative” for purposes of receiving protected health information, as described under the HIPAA privacy regulations. These regulations provide that only the Personal Representative named in a Health Care Power of Attorney has the same rights to protected health information as the patient.
A comprehensive document will also include detailed statements regarding (1) the agent’s ability to obtain medical and psychiatric on the principal’s behalf, (2) residency preferences, (3) hiring and firing of health care providers, (4) organ and tissue transplantation, and (5) choice of burial or cremation.
2. Who should have a Health Care Power of Attorney?
Every adult should have a Health Care Power of Attorney regardless of age, net worth, or health.
3. What are the consequences of not having a Health Care Power of Attorney?
The simple answer is that a client’s preferences regarding medical decisions – and who should make them – are left to the speculation of physicians, nurses, and family members. From a legal perspective, the answer is that someone may have to petition a local court for appointment as guardian. This is an expensive and public process.
4. Does a Health Care Power of Attorney address psychiatric care?
No. A separate Mental Health Power of Attorney may be used to nominate an agent for mental health decisions on the principal’s behalf. However, many estate planning attorneys will combine these two powers of attorney into one document. A comprehensive document will address whether the principal gives the agent authority to arrange for the principal’s “voluntary” admission to an inpatient psychiatric facility (for example, a memory care unit).
5. Is there a required form to use?
No. However, A.R.S. Section 36-3224 provides a sample form Health Care Power of Attorney. The statutory form is commonly used by self-help websites and do-it-yourselfers. A slightly modified version is available free from the Office of the Arizona Attorney General.
However, most estate planning attorneys will prepare a more comprehensive document that has been fine tuned over years of use to better address some of the prominent issues such as (1) HIPAA privacy regulations, (2) what events should trigger activation of the document, (3) decisions during pregnancy, (4) reimbursement of Agent expenses, and (5) preferences regarding hospice care and administration of pain medications.
Although the authority given to a Health Care Agent eliminates the need for a court-appointed guardian, a major disadvantage of the statutory form is its omission of a provision to nominate a guardian. Without such a provision, anyone can petition for guardianship and, if appointed by a court, then overrule the Health Care Agent’s decisions. When counseled about the matter, it is rare to find any person who prefers the statutory form.
There is no substitute for the benefit of interacting with someone who is familiar with local laws and customs. An estate attorney can tailor an estate plan specific to your needs.
6. What is the relationship between a HCPOA and Living Will?
The Health Care Power of Attorney and Living Will are like sister documents. The HCPOA designates a person to make decisions and the Living Will gives guidelines or instructions to that person regarding specific end-of-life decisions.
7. How much does a Health Care Power of Attorney cost?
Typically the cost of a Health Care Power of Attorney will be incorporated into the package fee for a comprehensive estate plan. However, most estate planning attorneys will prepare the document a la carte for approximately $50 to $250.
8. How often should a HCPOA be updated?
The best practice is to sign a new Health Care Power of Attorney at least every 10 years or sooner if a major law change occurs.
About the Author
Thomas J. Bouman provides legal counsel in the areas of estate planning, estate settlement, and asset protection. He brings a highly systematic approach to the practice of law, which is critically important when wading through the complex, and often bizarre, legal requirements associated with estate and trust law. Mr. Bouman is author of the Arizona Estate Administration Answer Book and a prominent member of Wealth Counsel, LLC, the nation’s premiere organization of estate planning attorneys.
A Health Care Power of Attorney is a personal legal document that nominates someone (the “agent”) to make medical decisions on behalf of the person signing the document (the “principal”) if the principal is unable to communicate due to mental incapacity.
In addition to naming an agent for medical decisions, this document names a “Personal Representative” for purposes of receiving protected health information, as described under the HIPAA privacy regulations. These regulations provide that only the Personal Representative named in a Health Care Power of Attorney has the same rights to protected health information as the patient.
A comprehensive document will also include detailed statements regarding (1) the agent’s ability to obtain medical and psychiatric on the principal’s behalf, (2) residency preferences, (3) hiring and firing of health care providers, (4) organ and tissue transplantation, and (5) choice of burial or cremation.
2. Who should have a Health Care Power of Attorney?
Every adult should have a Health Care Power of Attorney regardless of age, net worth, or health.
3. What are the consequences of not having a Health Care Power of Attorney?
The simple answer is that a client’s preferences regarding medical decisions – and who should make them – are left to the speculation of physicians, nurses, and family members. From a legal perspective, the answer is that someone may have to petition a local court for appointment as guardian. This is an expensive and public process.
4. Does a Health Care Power of Attorney address psychiatric care?
No. A separate Mental Health Power of Attorney may be used to nominate an agent for mental health decisions on the principal’s behalf. However, many estate planning attorneys will combine these two powers of attorney into one document. A comprehensive document will address whether the principal gives the agent authority to arrange for the principal’s “voluntary” admission to an inpatient psychiatric facility (for example, a memory care unit).
5. Is there a required form to use?
No. However, A.R.S. Section 36-3224 provides a sample form Health Care Power of Attorney. The statutory form is commonly used by self-help websites and do-it-yourselfers. A slightly modified version is available free from the Office of the Arizona Attorney General.
However, most estate planning attorneys will prepare a more comprehensive document that has been fine tuned over years of use to better address some of the prominent issues such as (1) HIPAA privacy regulations, (2) what events should trigger activation of the document, (3) decisions during pregnancy, (4) reimbursement of Agent expenses, and (5) preferences regarding hospice care and administration of pain medications.
Although the authority given to a Health Care Agent eliminates the need for a court-appointed guardian, a major disadvantage of the statutory form is its omission of a provision to nominate a guardian. Without such a provision, anyone can petition for guardianship and, if appointed by a court, then overrule the Health Care Agent’s decisions. When counseled about the matter, it is rare to find any person who prefers the statutory form.
There is no substitute for the benefit of interacting with someone who is familiar with local laws and customs. An estate attorney can tailor an estate plan specific to your needs.
6. What is the relationship between a HCPOA and Living Will?
The Health Care Power of Attorney and Living Will are like sister documents. The HCPOA designates a person to make decisions and the Living Will gives guidelines or instructions to that person regarding specific end-of-life decisions.
7. How much does a Health Care Power of Attorney cost?
Typically the cost of a Health Care Power of Attorney will be incorporated into the package fee for a comprehensive estate plan. However, most estate planning attorneys will prepare the document a la carte for approximately $50 to $250.
8. How often should a HCPOA be updated?
The best practice is to sign a new Health Care Power of Attorney at least every 10 years or sooner if a major law change occurs.
About the Author
Thomas J. Bouman provides legal counsel in the areas of estate planning, estate settlement, and asset protection. He brings a highly systematic approach to the practice of law, which is critically important when wading through the complex, and often bizarre, legal requirements associated with estate and trust law. Mr. Bouman is author of the Arizona Estate Administration Answer Book and a prominent member of Wealth Counsel, LLC, the nation’s premiere organization of estate planning attorneys.