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Horizon Planning

Durable Power of Attorney

A durable power of attorney for health care is a document which allows you (the principal) to name another person (the attorney-in-fact) to make certain medical decisions for you if you are unable to make them for yourself. The person you choose as your attorney-in-fact does not have to be a lawyer. The law says that the attorney-in-fact can:

  • Authorize your admission to a medical, nursing, residential or other facility;
  • Enter into agreements for your care; and
  • Authorize medical and surgical procedures.

The power to "authorize medical and surgical procedures" means that your attorney-in-fact may arrange for and consent to medical, therapeutic and surgical procedures for you, including the administration of drugs.

As of this writing, courts in Pennsylvania have not decided if the law permits an attorney-in-fact to refuse treatment on your behalf, especially if the attorney-in-fact is refusing potentially beneficial care.

Why do they call it a "durable power of attorney"?

A durable power of attorney is a power of attorney which continues to be effective or takes effect if or when you become incapacitated. All powers of attorney are presumed to be durable, unless specifically provided otherwise.

What are some of the major differences between a living will and a durable power of attorney?

Unlike a durable power of attorney for health care, a living will only takes effect when you are in a terminal condition or permanent state of unconsciousness. A durable power of attorney for health care generally names someone to make health care decisions for you without necessarily describing what those decisions should be. A living will, on the other hand, often spells out what kind of life-sustaining treatment you want to receive and may or may not name someone to make those decisions for you should you become incompetent and in a terminal condition or permanent state of unconsciousness.

A durable power of attorney for health care is designed to give your named representative the authority to make all sorts of medical decisions for you, such as whether you should be admitted to a particular kind of health care facility. A living will, on the other hand, is generally used to tell your health care provider what kind of medical care and treatment you want to receive or not receive in the event you become unable to tell the provider yourself.

It is unclear if your representative under a durable power of attorney for health care can refuse or stop life-sustaining treatment for you; a living will clearly can be used for that purpose.

May I have both a durable power of attorney for health care and a living will?

Yes, you many have both in either one document or in separate documents, although having both in one document may be recommended in many cases. There are certain factors you should consider in making the decision to have both, or either of these documents.

Because the grant of powers in a durable power of attorney for health care may be very broad and will continue even if you become incompetent, it is very important that you exercise great care in both selecting the person to be your attorney-in-fact and in spelling out the power and guidelines for the attorney-in-fact to follow. While the grant of powers in a living will is more specific, great care should still be taken in both writing your living will and especially in selecting a surrogate if you decide to select one. 


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