Medical Power of Attorney – An Estate Planning Necessity

In a previous post, I wrote about Powers of Attorney, their uses regarding your finances, and my recommendations to client regarding those docs. Now I’m going to address Medical Powers, the flip side of the same coin, which allows someone to make medical decisions for you.

A Medical Power of Attorney (MPoA) lets you pick someone whom you trust completely to make medical decision for you if you are in a position where you can’t.

No one likes to address their own mortality. Thinking about what could happen to us, especially in the event of some catastrophic accident or emergency, is no fun. Unfortunately, bad things happen to everyone, and as an estate planning lawyer, I make it my job to solve problems for my clients before they become problems.

One of the best items to assist in that regard is the Medical Power of Attorney, sometimes called a Healthcare Power of Attorney.

Now, let’s imagine a situation, just as a hypothetical, where you are driving along, obeying all the traffic laws, and out of the blue you get slammed by an 18-wheeler. Your personal mode of transport, whether it’s (heaven forbid) a McLaren 12c, a family sedan, or a top-of-the-line Ford F-650, it is no match for a fully loaded semi tractor trailer. Unless you are insanely lucky, you are going to be in need of serious medical attention.

When that hypothetical occurs, who would be the one talking to the doctors about how to treat you? Say, in the hypothetical, you sustain injuries that render you unconscious, or, more seriously, cause longer-term damage to you brain? Or possibly injure your jaw in a way that precludes conversation?

Or, let’s look at another scenario: you’re just sitting at home on a Tuesday night watching television, and have a mild stroke. That’s all it takes, something as simple and unavoidable as a miniscule blood clot flowing through your arteries without your knowledge or ability to stop it, to eliminate your ability, at least in the short-term, to make medical decisions.

At that point, the hypothetical needs a lot more info: Are you married? Divorced? Have children? How old are they? Are you parents still alive? Are they still married? If you have any, are your siblings nearby? Do any/all of these parties get along with one another? And do any of them actually know what you want to have happen in your situation?

The answers to these questions, in the real world, directly affect your situation if something catastrophic happens and another person needs to make the tough decisions for you. If you have designated no one, then it falls to state law to decide who gets the right to decide for you. It could be your spouse, but if you don’t have one, it gets more complicated.

Speaking from personal experience, I watched a very close friend waste away for months and months in a bed in ICU after suffering effects of West Nile Virus, when the nasty viral meningitis symptom that is sometimes part of the Virus destroyed his brain. He had no Directive (a document I’ll discuss in a later post) and no MPoA. His mother, for whom he was the only child, couldn’t stand to let him go, despite the fact that there was no hope of recovery, and she, his father and everyone who knew him knew he would have absolutely chosen to be let go peacefully rather than be attached to machines to keep him alive.

We all know someone who has had this situation come up, whether it be a parent, grandparent, other family member or friend.

A Medical Power of Attorney (along with the Directive I’ll discuss later) helps address this issue for my clients before it comes up. It eliminates problems that arise, especially in blended households or in situations where family members do not agree or are not in contact, and chooses one person to deal with the medical professionals and address your care if you can’t.

It has specific language, and must follow more rigid protocols that a financial Power of Attorney (not a surprise, as this document allows someone to make all your medical decisions). It allows your agent to manage your care, and to agree to or decline medical treatments such as surgeries, transplants, etc.

The document I draft usually includes a Directive to Physicians and a HIPAA release, to simplify the process and pull all the client’s medical instructions into one document. It’s a necessary part of the proper estate plan, and something everyone should have. In addition, you should revisit yours every few years to see if any amendments need to be made.

Remember, much like every other item I discuss on this blog, you need to have an attorney discuss the matter with you. You can get forms for Medical Powers different places these days, but you don’t know if the person providing that document knows anything at all about them or the law surrounding them. Get a lawyer, and let them help you through it. That way, when something happens, you can feel secure knowing your illness won’t create a frenzy and/or anguish amongst the family/significant other/friends watching your condition.