There’s no way around it, this is a necessary conversation to have with your parents and loved ones. Who will make medical decisions if someone is incapacitated? Do they have their estate plan in order? According to this article from Health, an important detail is often overlooked: “A Health Care Power of Attorney Is Essential for Aging Parents—Here’s Why.”
Referred to as a health care proxy or a medical power of attorney, a health care POA allows a person to choose someone (the Agent) to make medical decisions on their behalf, if they are unable to do so. This is a different document than a living will, which serves to let a person outline their wishes if they can’t communicate for end-of-life care.
Naming a medical Agent in advance is a necessary step which lets the Agent carry out their wishes, with full and complete knowledge of what those wishes are.
A health care POA is also not the same as a last will and testament, which goes into effect after a person dies. There is nothing in a health care POA concerning wealth distribution. The will and trusts address those matters.
Giving a trusted person the legal power to make medical decisions is a big step, but one that provides a sense of control and peace of mind. There should be a first choice and an alternate, in case the first person, usually a spouse, is unable or unwilling to serve.
Without a medical POA, the it may be necessary for the family to go to court to get legal permission to make decisions, especially if there are disagreements about the care needed. It’s the last thing anyone wants to do when their loved one is in a critical medical situation. Imagine having to leave the hospital to go to court, when the minutes are ticking away and your parent is in the midst of medical crisis.
If someone fails to name a medical Agent and becomes incapacitated, the hospital itself will most often step in to make treatment decisions or rely on the rules of the state to pick a family member to make decisions. The person named by the hospital might not be the person the family wants, but it will have no choice.
Like having an estate plan in place, having a medical Agent in place eliminates a lot of unnecessary stress. Most parents name the adult children they feel will make decisions in their best interest. The responsible, dependable child, regardless of their age relative their siblings, is often named. If siblings don’t get along and have a history of fighting, it may be best to name a cousin or trusted family friend.
An experienced estate planning attorney will make sure the health care proxy documents comply with the laws in the person’s state of residence. Every state has its own forms, and its own laws.
It’s necessary to have a discussion between the person and the Agents named in the health care proxy. Make sure the Agent is willing to take on the role and understands the person’s wishes. The form should also be submitted to a health care facility or doctor’s office, so it is on file if it is needed. Unexpected events occur every day—being prepared makes it easier for loved ones.
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Reference: Health (Dec. 1, 2021) “A Health Care Power of Attorney Is Essential for Aging Parents—Here’s Why”
