Healthcare Power of Attorney

What is a healthcare power of attorney?

When to use a healthcare power of attorney

Also known as a medical power of attorney, a healthcare power of attorney is an advanced directive that is a useful tool for when you are in danger of becoming incapacitated or unable to speak for yourself and you wish to appoint an agent to make medical or healthcare decisions on your behalf.

Healthcare Power of Attorney Guide

No matter what type of power of attorney you need, LegalNature's intuitive questionnaire makes it easy to give your agent decision-making authority over almost all of your affairs. Our power of attorney form gives you complete flexibility in tailoring the document to your specific needs. Below, you will find a detailed description of the main sections and key components of LegalNature's customizable power of attorney template in the order that they appear in the document. Note that some of these sections may be omitted from your document depending on how you answer the relevant questions.

Naming your agent

The person you appoint to handle your affairs might be called an “agent,” “proxy,” “representative,” or something else depending on the state you live in. By signing this document your agent is legally obligated to follow your written instructions and to always try to act according to your known wishes. Note that our living will form includes a healthcare power of attorney within it and also allows you to specify your preferences in the event that you can no longer speak for yourself.

The agent you appoint is required to be 18 years of age or older. It is important to read your completed form thoroughly to ensure that you have met all requirements mandated by your state. For instance, some states prohibit you from naming your doctor or an employee of your healthcare provider as your representative. Most people opt to appoint a trusted friend or family member.

Successor Agents

You will need to name backup agents, called “successor agents,” in case your first choice is unable or unwilling to represent you when the time comes. For instance, your first choice may become ill, pass away, or simply no longer wish to act on your behalf.

In any case, appointing multiple successor agents is a smart way to ensure that someone you trust eventually becomes your agent. In your power of attorney, each agent and successor agent will be specifically identified by their names, addresses, and phone numbers to prevent any possible confusion over their identities.

Agent as Fiduciary

Under a power of attorney, the principal and agent are in a “fiduciary relationship.” This means that the agent is always required to act in the principal’s best interest and that their relationship is one of the highest trust and confidence. An agent who acts outside of the fiduciary relationship may end up seeing their authority revoked and possibly other legal consequences. This protection allows principals to rest easy knowing that the law will protect them if the agent abuses their authority.

Special Instructions

You also have the option of including any special wishes, terms, restrictions, or instructions. It is a good idea to include any general goals here, even if they have already been communicated to the agent orally.

Amplifying Powers

This section of the form specifies the agent’s rights to compensation for their effort. For instance, the agent may be paid monthly for their services. However, the agent will be required to itemize their costs and expenses, which must be reasonable.

Here, the principal also affirms that banks and other third parties may rely on the representations made by the agent without fear of reprisal.

Finally, this section states that the agent cannot be held responsible for any unintentional or negligent wrongdoing so long as they seek to act in the principal’s best interests or according to their wishes. This is essential for encouraging agents to accept their appointments.

Principal’s Signature

After the principal finishes reviewing the power of attorney, they may need to sign in the presence of witnesses according to their state’s rules as indicated in the form.

Notice to Person Accepting the Appointment as Attorney-in-Fact

This notice is attached to the form and acknowledges that the agent understands their duties and responsibilities. The agent should carefully read the power of attorney and this notice prior to signing and accepting the nomination as agent. The agent is advised to find legal counsel if they have any questions or concerns.

Notary Acknowledgment

Although not always required in every state, it is recommended that you use a notary to witness the signing, which will help prove the authenticity of the power of attorney should it ever be disputed in court.

Statement of Witness

Here, the witnesses sign a statement affirming the principal's identity, that they signed the power of attorney in the witness’ presence, that they are of sound mind and memory, that the signature was not procured fraudulently, and that the witness or witnesses are not serving as agents (i.e. meaning that they are disinterested parties without any conflicts of interest).

Executing Your Document

Since banks, hospitals, and other institutions often require powers of attorney to be notarized, we recommend that you use a notary even if your state does not require it.