Document Provides Power to Act in Health Crisis

Senior citizens, the largest consumers of medical care and the fastest growing segment in our population, bear a high risk of incapacity from a wide range of medical causes. A 1982 study established that approximately 17 out of 100 people over age 80 suffer significant loss of physical or mental abilities.

The idea of delegating health care decision-making may be new to you. Discuss the matter with your family doctor and seek expert legal advice, because plans must be made while you are healthy. The once-common practice of allowing an unqualified spouse or family member to provide consent if the patient cannot consent is declining. Hospital and doctor fear of lawsuits is eliminating unauthorized consent.

The 1989 “Durable Power of Attorney for Health Care” law is the solution. It allows you to appoint an agent to make health care decisions for you, but those powers commence only if and when you become unable to make medical decisions for yourself. The appointment must be written in a format specified by the law. Using your own words is not enough.

Your Agent may be almost anyone you chose. Your Agent is powerless until your doctor certifies that you have become incapable of understanding the nature and consequences of a needed health care decision.

When your agent makes a decision for you, he must act in the way you would have wanted, and must consider your religious beliefs, if known. If unknown, he must do what is in your “best interest”. Control, ultimately, remains with you: even though certified as unable to decide, you must be informed of a health care decision in advance and may veto any proposed treatment.

Your agent can allow almost any treatment you could allow, unless you include specific limitations. Your agent cannot deny “comfort care” under any condition.

Your agent is not responsible to pay the bill for the care chosen. Decision-makers will not be forced to pay for a relative’s medical care, unless they want to pay. Without the power of attorney, payment might be due from anyone involved in the decision-making.

You must sign the power of attorney in the presence of two qualified witnesses. Before signing, you must read and sign a disclosure form, stating that you are aware the powers you are granting are very broad. Proper documents can be obtained from The Virtual Online Law Office at nominal cost. Waiting “until later” to make plans will deny you the right to control your destiny, and may result in costly and degrading guardianship proceedings.

Original Publication: San Antonio Express News, October 27, 1989

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Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

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