FAQ's
Information of Importance to Patients/Principals
Information of Importance to Health Care Providers
When does the Medical Power of Attorney go into
effect and how long is it effective?
It is effective immediately after it is executed and
delivered to the agent. It is effective indefinitely
unless it contains a specific termination date, it
is revoked, or the principal becomes competent.
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When does the agent have the right to make health
care decisions on the principal's behalf?
An agent may make health care decisions on the
principal's behalf only if the principal's attending
physician certifies in writing that the principal is
incompetent. The physician must file the
certification in the principal's medical record.
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Can the agent make a health care decision if the
principal objects?
No. Treatment may not be given to or withheld from
the principal if the principal objects. This is true
whether or not the principal is incompetent.
What health care decision making power does the
Medical Power of Attorney grant to an agent?
Under a Medical Power of Attorney, an agent is given
wide latitude when consenting to treatment on the
principal's behalf. However, an agent cannot consent
to:
And in the Medical Power of Attorney document
itself, the principal may limit the agent's
decision-making authority.
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How is the Medical Power of Attorney revoked?
A Medical Power of Attorney may be revoked by
notifying either the agent or the principal's health
care provider orally or in writing, of the
principal's intent to revoke. This revocation will
occur regardless of the principal's capacity to make
health care decisions. Further, if the principal
executes a later Medical Power of Attorney, then all
prior ones are revoked. If the principal designates
his/her spouse to be the agent, then a later divorce
revokes the Medical Power of Attorney.
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What assurance is there that the principal
understands the consequences of signing a Medical
Power of Attorney?
The Medical Power of Attorney is not legally
effective unless the principal signs a disclosure
statement that he/she has read and understood the
contents of the Medical Power of Attorney before
signing the Medical Power of Attorney itself.
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Information of Importance to Patients/Principals
Do I
need a Medical Power of Attorney?
There is a chance in your lifetime that you may be
seriously injured, ill, or otherwise unable to make
decisions regarding health care. If this should
happen, it would be helpful to have someone who
knows your values and in whom you have trust to make
such decisions for you.
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Who
should be selected as an agent?
The principal should be knowledgeable about your
wishes, values, and religious beliefs, and in whom
you have trust and confidence. In the event your
agent does not know of your wishes, that agent
should be willing to make health care decisions
based upon your best interests.
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Can
there be more than one agent?
Yes. Although you are not required to designate an
alternate agent, you may do so. The alternate
agent(s) may make the same health care decisions as
the designated agent if the designated agent is
unable or unwilling to act.
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Who can be an
agent?
Anyone may act as an agent other than the following:
The principal's health care provider,
An employee of the health care provider unless the
person is a relative of the principal,
The principal's residential care provider, or
An employee of the principal's residential care
provider unless the person is the principal's
relative.
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Do you need a
witness?
Yes, two witnesses must sign the Medical Power of
Attorney. At least one of the witnesses must not be:
Designated by the principal to make a health care
decision on the principal's behalf;
Related to the principal by blood or marriage;
The principal's attending physician or an employee
of the attending physician;
Entitled to a part of the principal's estate;
A person having a claim against the principal's
estate;
An employee of a health care facility in which the
principal is a patient if the employee is providing
direct care to the principal; or
An officer, director, partner, or business office
employee of the health care facility or of any
parent organization of the health care facility.
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What is the difference between a Medical Power of
Attorney and a Directive to Physicians?
The Directive to Physicians is a document that is
limited in scope, addressing only the withholding or
withdrawing of medical treatment for those persons
having a terminal or irreversible condition. The
Medical Power of Attorney is broader in scope and
includes all health care decisions with only a few
exceptions. The Medical Power of Attorney does not
require that the principal be in a terminal or
irreversible condition before the principal's agent
can make health care decisions on the principal's
behalf.
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Does a person need a lawyer to execute a Medical
Power of Attorney?
No, a lawyer is not necessary in order to execute a
Medical Power of Attorney.
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Information of Importance to Health Care
Providers
What duties does the health care provider have when
presented with a principal's Medical Power of
Attorney?
A principal's physician, health or residential care
provider, or an employee of the provider shall
follow a directive of the principal's agent to the
extent it is consistent with the desires of the
principal, the law, and the Medical Power of
Attorney.
The attending physician does not have to verify that
the agent's decision is consistent with the
principal's wishes or religious or moral beliefs. If
the principal's health or residential care provider
will not follow an agent's decision, the provider
must inform the agent as soon as reasonably
possible. The agent may select another provider.
A health or residential care provider may not be
required to act in a manner contrary to a
physician's order.
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Suppose that the principal's Medical Power of
Attorney provides the agent with decision-making
authority with regard to the provision of
life-sustaining treatment. Suppose that the agent
wishes to have the physician remove life-sustaining
treatment from the principal, but the principal's
attending physician refuses to comply with the
decision. In light of this refusal, what is the
responsibility of the physician and the applicable
health care facility?
If the principal's attending physician refuses to
honor the agent's decision, then the physician's
refusal may be reviewed by a medical or ethics
committee. If the ethics or medical committee
reviews the refusal, the physician cannot be a
member of the review committee. The principal must
be provided life-sustaining treatment while the
review is taking place. The agent must be given at
least 48 hours notice of when the review committee
will convene and must also be allowed to attend the
committee meeting. The agent must be provided a
written explanation of the decision reached during
the review process. If the agent or the physician
disagrees with the decision reached through the
review process, then the physician must make a
reasonable effort to transfer the patient to a
physician who is willing to comply with the agent's
decision. If the principal is a patient in a health
care facility, the facility's personnel shall assist
the physician in arranging the principal's transfer
to another physician, an alternative care setting
within that facility, or another facility that will
honor the agent's decision. If the process just
described is followed, then the physician and the
health care facility will be immune from
disciplinary action, civil liability, and criminal
liability.
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Suppose that the principal's Medical Power of
Attorney provides the agent with decision-making
authority with regard to the provision of
life-sustaining treatment. Suppose that the agent
wants the physician to provide life-sustaining
treatment but the principal's attending physician
believes that the requested treatment is
inappropriate. What is the responsibility of the
physician and the applicable health care facility in
this case?
If the physician believes that the requested
treatment is inappropriate, then an ethics or
medical committee may review the requested treatment
for appropriateness. Again, the physician cannot be
a member of the review committee, and the patient
must be provided life-sustaining treatment while the
review is taking place. The agent must be allowed to
attend the meeting of the review committee and must
be provided a written explanation of the decision
reached during the review process.
If the review process determines that the
administration of the requested life-sustaining
treatment is inappropriate, then the principal's
physician must make a reasonable effort to transfer
the patient to a physician who is willing to provide
the requested treatment. The health care facility in
which the patient resides must assist the physician
in arranging the patient's transfer to another
physician, an alternative care setting within that
facility, or another facility that will provide the
requested treatment. Although the physician and the
health care facility are obligated to provide
life-sustaining procedures pending transfer, this
obligation is limited. The physician and the health
care facility are not obligated to provide
life-sustaining treatment after the 10th day after
the agent receives a written notification that the
review process has determined that the
administration of the requested life-sustaining
treatment is inappropriate. If the hospital and
physician follow this process, then the physician
and the health care facility will be immune from
disciplinary action, civil liability, and criminal
liability.
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Is the review process described above mandatory?
No. However, even if the physician's refusal to
comply with an agent's directive does not come under
the review process, the physician and the health
care facility must provide life-sustaining
treatment. The physician and the health care
facility need only provide the treatment until a
reasonable opportunity has been afforded for the
transfer of the patient to another physician or
health care facility willing to comply with the
directive. But because an ethics or medical
committee did not review the physician's refusal,
neither the physician nor the hospital will be
granted immunity from disciplinary action, civil
liability, or criminal liability.
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What must be done if a health care provider learns
that a principal's Medical Power of Attorney has
been revoked?
When a health care provider is informed of, or
provided with, a revocation of a Medical Power of
Attorney, the revocation shall be recorded in the
medical record and notice given to the agent.
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What rights to the principal's medical records does
the agent have?
The agent may, in the course of making a health care
decision:
Request, review, and receive information about the
principal's physical or mental health, including
medical and hospital records;
Execute a release required to obtain the
information; and
Consent to the disclosure of the information.
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To what extent is an agent liable for a decision
made under the authority of a Medical Power of
Attorney?
An agent, acting in good faith, will not incur
criminal or civil liability for a health care
decision made under a Medical Power of Attorney.
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What liability does a physician or other health care
provider incur as a result of a decision made by an
agent under a Medical Power of Attorney?
The principal's attending physician or other health
care providers will not be subject to civil or
criminal liability, or disciplinary action if any
act or omission is performed in good faith under the
direction of an agent who has a Medical Power of
Attorney, provided the act or omission does not
constitute a failure to exercise due care in the
provision of health care services.
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Who is liable for the cost of medical care decisions
made by the agent?
The agent will not be responsible for the cost
consequent to the agent's decision if the principal,
if competent, would not have been liable for the
costs connected with making the same decision as the
agent.
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