What Does an Agent Under a Medical Power of Attorney Do?
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Informed consent in medicine is an ethical and legal requirement for treatment. It is one of the
core principles of the American Medical Association and ensures that patients can ask
questions and obtain information about a treatment or procedure and explicitly consent to it.
There are recognized exceptions to the explicit patient consent requirement, including when the
patient is in a medical emergency but unable to make or communicate their own decisions (for
example, the client is under anesthesia during surgery or is unconscious). In such cases, a
stand-in decision-maker (usually the next of kin) may step in and authorize treatment on the
patient's behalf.
For nonmedical emergency situations, clients with a comprehensive estate plan can control their
future medical treatment by naming a person or people to act and provide consent for them
when they are unable to do so (e.g., because of dementia, stroke, a closed head injury, or
various other medical conditions and situations). People who lack key estate planning
documents could be at the mercy of the courts or medical professionals (who are subject to
facility policies and procedures) if they become unable to make or communicate their medical
wishes, possibly resulting in care that is different from what they would have chosen.
The Role of Medical Directives
Medical directives are a series of legal documents that name a medical decision-maker and
outline a person's medical wishes if they become incapacitated and therefore unable to make or
communicate their own healthcare decisions.
Two medical directives crucial for every estate plan are a medical power of attorney and a living
will.
- A medical power of attorney is a legal document that gives a designated person (referred
to as an agent or healthcare proxy) the authority to make or communicate healthcare
decisions for another individual (the principal) if the principal is unable to do so. These
decisions include consent to or refusal of treatments, surgeries, medication, and other
interventions. The agent can also access the principal's medical records and information for
decision-making purposes.
- A living will (also referred to as an advance directive) is a document that details an
individual's wishes to receive - or not receive - specific medical treatments and interventions
at a future time when the person is incapacitated and unable to consent or refuse. It often
addresses life-sustaining measures in terminal situations. However, living wills are not
legally recognized in all states.
The medical power of attorney and living will should be written to complement each other.
Generally, an agent's power is limited by any instructions that the principal outlines in their living
will, and the agent cannot make decisions that contradict those instructions. Depending on state
law, the medical power of attorney may contain healthcare instructions usually contained in a
living will as well.
A living will should clearly state someone's preferences for a number of end-of-life care
decisions, including CPR, ventilation, dialysis, medications, tube feeding, pain management,
and organ donation.
If these decisions are not addressed in the living will or the directives are unclear, the agent can
use their judgment to make a decision they believe is in the principal's best interests and aligns
with their values.
Most people choose an agent under a medical power of attorney who knows them well and
understands their values and preferences, but clients are advised to thoroughly discuss
intervention and treatment choices with the agent before their services are needed. It is also
important to choose someone who can be available in case of an emergency.
What Can Happen When There Are No Medical Directives
When there are no medical directives and the patient's decision-making capacity is impaired,
the court will appoint someone to serve as a stand-in decision-maker for the incapacitated
patient. This appointment is made through a guardianship proceeding (sometimes called a
conservatorship proceeding depending on the state) that is usually initiated by a family member.
When there is no family involved, a hospital or a nursing home may reach out to the appropriate
state agency to pursue guardianship or conservatorship.
When choosing a guardian for an incapacitated adult, the court considers a combination of the
individuals set forth under state law and the person's best interests, prioritizing close family
members such as a spouse, parent, or adult child. Once the patient is deemed incapacitated,
the guardian has full authority to make most or all decisions for the patient unless the patient
retains the capacity to make their own decisions.
While guardianship might seem like a reasonable solution to the issue of not having advance
directives and a legally authorized representative, it presents problems as well. Namely, the
process is slow. It may take months or more to establish a guardianship. During this time, the
incapacitated person's necessary medical treatment may be put on hold or delayed.
However, what if a patient suffers a medical emergency and needs immediate care? This could
happen from something as routine as a fall or a car crash that results in a traumatic brain injury,
a leading cause of incapacitation. Stroke, organ failure, and sepsis can also come on suddenly
and cause incapacity.
In these situations, the court may grant emergency guardianship on a temporary basis when
someone's health is at risk, they lack capacity, or a crucial decision must be made and they do
not have a validly appointed decision-maker available. This arrangement lasts for a limited
period or until a hearing can be held to appoint a permanent guardian. Emergency guardianship
proceedings are still not instantaneous, however, unlike a medical power of appointment.
Another drawback of guardianship proceedings is that they are usually expensive: there will be
court fees and potentially attorney's fees if one is used, and most states require that an attorney
represent the guardian or conservator in the court proceedings and throughout the duration of
the case.
Lastly, a significant drawback of guardianship proceedings is lack of privacy. Since these
proceedings take place in court, much of the information shared becomes part of the public
record. This includes sensitive details about the individual's health, finances, and personal
circumstances, which can feel invasive and could lead to embarrassment or stigma.
Additionally, public disclosure may strain family relationships or invite unwanted attention,
making the process emotionally challenging for everyone involved.
For these reasons, medical professionals and attorneys widely consider guardianship an
inadequate solution that should be used only as a last resort.
If you have clients without friends or family to act as stand-in decision-makers, they can name a
professional, such as a physician or social worker, to make important medical decisions for
them and avoid needing a guardianship proceeding to be initiated.
Estate Planning Avoids Unintended Medical Consequences
The upshot of not having medical directives is that a client loses control over decisions that may
be not only medically necessary but also highly personal. To ensure that their medical wishes
are honored, they should have a medical power of attorney and a living will as part of their
estate plan and regularly check to ensure that the stand-in decision-makers they name are still
available, willing, and able to fulfill their duties.
MEREDITH | PC
4325 Windsor Centre Trail
Suite 400
Flower Mound Texas 75028
214-513-1013
This newsletter is for informational purposes only and is not intended to be construed as written advice about a Federal tax matter. Readers should consult with their own professional advisors to evaluate or pursue tax, accounting, financial, or legal planning strategies.
You have received this newsletter because I believe you will find its content valuable. Please feel free to Contact Me if you have any questions about this or any matters relating to estate planning.
