Health Care Powers of Attorney

Recently, after running with some friends and while enjoying our customary cool-down beer (a must for summer running – after you rehydrate with water or a sports drink of course) a friend asked me about health care powers of attorney and whether he should get one.  Obviously, this individual had not read my August 31, 2011 post.  After explaining to him the benefits of executing a health care power of attorney and how it differs from a living will (discussed below), I asked the group how many had executed one.  Only a few raised their hands.  Sadly, this did not surprise me.

A Health Care Power of Attorney (“HCPOA”) is a document which allows an individual (the “Principal”) to appoint another individual (a “Health Care Agent” or “Agent”) to make health care decisions on the Principal’s behalf in the event the Principal is unable to do so.  A HCPOA is different from a Living Will because of the appointment of an Agent, whereas a Living Will actually sets forth an individual’s health care wishes.  Anyone over the age of 18 and “of sound mind” may execute a HCPOA.  An Agent may be anyone except a Principal’s health care provider or an employee of a health care facility at which the Principal is residing, unless that Agent is related to the Principal.   A HCPOA is not effective immediately, but only upon a finding of incapacity by two physicians.

Generally, an Agent is granted the authority to make any decision that a Principal could make for themselves.  There are few limitations to this authority, some created by statute and others drafted into the HCPOA.  Given the broad decision-making powers, it is vitally important that the Principal and Agent thoroughly discuss the Principal’s desires for treatment (more on this in a future blog post).  So long as the Agent acts in good faith and consistent with the desires of the Principal, the Agent is allowed to consult with the Principal’s doctors and make health care decisions for the Principal’s benefit.

Once executed, I provide a Principal with several copies of their HCPOA and advise them to keep a copy with their other estate planning documents.  By law, a photocopy of an HCPOA is just as effective as the original signed copy.  The additional copies should be provided to the Agent, the secondary Agent (if named) and the Principal’s primary physician.

A HCPOA may be revoked at any time through any of the methods listed in Wis. Stat. § 155.40, including by obliterating it – one of my favorite actually legal words.  If not revoked, a HCPOA is effective for the entire life of the Principal (there is no expiration date), however, HCPOAs should be reviewed from time to time and revised upon the occurrence of major life events (marriage, divorce, death of an agent, etc.).

If you would like to discuss the benefits of a HCPOA, feel free to contact one of our estate planning attorneys at (608) 837-7386 (we won’t even make you run with us first).

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