Health Care Power 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 give informed consent to a medical procedure.
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 mental health treatment on the principal’s behalf, (2) hiring and firing of health care providers, (3) organ and tissue transplantation, and (4) choice of burial or cremation.
2. 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.
3. Does a Health Care Power of Attorney address psychiatric care?
Yes and no. In Arizona, a separate Mental Health Power of Attorney is used to nominate an agent for mental health decisions on the principal’s behalf. However, many estate planning lawyers will combine these two powers of attorney into one document. The mental health provisions should 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).
4. Is there a required form to use?
No. However, ARS Section 36-3224 provides a sample form Health Care Power of Attorney. The statutory form is commonly integrated into do-it-yourself estate planning software apps. A slightly modified version is available free from the Office of the Arizona Attorney General.
However, most estate planning lawyers 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 activate the agent's authority, (3) reimbursement of Agent expenses, and (4) 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 Arizona 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.
5. What is the relationship between a HCPOA and Living Will?
The Health Care Power of Attorney and Living Will are like sister documents. The Health Care Power of Attorney designates a person to make decisions on behalf of the principal and the Living Will gives guidelines or instructions to the agent regarding end-of-life decisions. In other words, the principal names an agent to serve as the principal's advocate and the Living Will memorializes the principal's wishes for benefit of the agent.
6. How often should a HCPOA be updated?
The best practice is to draw up and sign a new Health Care Power of Attorney every 7 to 10 years.
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 an estate plan drawn up by an estate planning lawyer. However, a typical a la carte fee is about $100 to $250.
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 give informed consent to a medical procedure.
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 mental health treatment on the principal’s behalf, (2) hiring and firing of health care providers, (3) organ and tissue transplantation, and (4) choice of burial or cremation.
2. 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.
3. Does a Health Care Power of Attorney address psychiatric care?
Yes and no. In Arizona, a separate Mental Health Power of Attorney is used to nominate an agent for mental health decisions on the principal’s behalf. However, many estate planning lawyers will combine these two powers of attorney into one document. The mental health provisions should 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).
4. Is there a required form to use?
No. However, ARS Section 36-3224 provides a sample form Health Care Power of Attorney. The statutory form is commonly integrated into do-it-yourself estate planning software apps. A slightly modified version is available free from the Office of the Arizona Attorney General.
However, most estate planning lawyers 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 activate the agent's authority, (3) reimbursement of Agent expenses, and (4) 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 Arizona 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.
5. What is the relationship between a HCPOA and Living Will?
The Health Care Power of Attorney and Living Will are like sister documents. The Health Care Power of Attorney designates a person to make decisions on behalf of the principal and the Living Will gives guidelines or instructions to the agent regarding end-of-life decisions. In other words, the principal names an agent to serve as the principal's advocate and the Living Will memorializes the principal's wishes for benefit of the agent.
6. How often should a HCPOA be updated?
The best practice is to draw up and sign a new Health Care Power of Attorney every 7 to 10 years.
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 an estate plan drawn up by an estate planning lawyer. However, a typical a la carte fee is about $100 to $250.
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.