by Harold Lustig
September 13, 1999

• Who do I want to make life-and-death medical decisions for me if I am incapacitated?
• Who do I want at my bedside?
• How long do I want to stay on life support if my condition is hopeless?

If you don’t ask yourself these questions, you will have no say when a medical emergency arises. Protect yourself by being proactive while you are healthy. Sure these issues are uncomfortable and procrastinating is easier, but the alternative is far worse. Why risk it? There are two documents that give you the power of choice in these situations: the durable power of attorney for medical care and the living will.

Durable Power of Attorney for Medical Care

With a durable power of attorney for medical care, or DPAMC, you designate a person to be your attorney-in-fact, to make medical decisions for you when you can’t. This document is also known as a durable power of attorney for health care. You may put restrictions into the document to limit what the attorney-in-fact can do. For example, you may wish to specify that you do not want to have artificial life support.

In some states, life support decisions are in the DPA or the DPAMC; in other states, they are in a separate document called a directive to physicians, health care proxy, or living will. The name of these documents can vary by state and may not be accepted where you live. It is essential that you work with an attorney who is familiar with these documents and the issues in your area. The living will is a different type of document from the other two; it will be discussed in greater detail in a few pages.

You should always name a backup person or alternate in case your first choice is unable to serve. Your DPAMC document should be reviewed every few years, since hospitals and medical practitioners may be reluctant to accept an old document. One good strategy is to review all your POAs annually, on an anniversary date. Also, make sure you discuss the POA with the person you have appointed as your attorney-in-fact and that she or he knows what your wishes are. This is much better than your agent trying to figure out what you want from the document during a medical emergency.

In his book, “Cancer as a Turning Point,” Lawrence LeShan emphasizes that one of the most important ways to survive the hospital is to have a personal advocate there with you. If your partner is to be your advocate, then you must have your health care powers in place prior to your hospital stay.

Durable Power of Attorney for Financial Management

In a medical emergency, you may not be able to manage your money, pay your bills, request insurance and company benefits, or file taxes. The list goes on and on. Exhaustion, dementia, and long periods in the hospital take their toll. With a durable power of attorney for financial management, or DPAFM, you can name someone to manage your affairs. Again, be sure you name a backup person because the attorney-in-fact or agent may not be able to serve. If you are concerned about giving away too much power over your legal affairs, you can put restrictions into your document or you can make it task-specific. The document, for example, can be limited to paying utility bills and depositing your paycheck, or it can be quite broad, such as covering all your legal powers.

The DPAFM or DPAMC can become effective when the document is written or it can spring into effect when you are incapacitated. Four fifths of all states recognize the “springing” DPA. There are several disadvantages to the springing power. First, it introduces a possible argument about whether you are actually incapable of making your own decisions. It also requires, in most instances, a court’s determination of capacity so the agent can act. This can be time-consuming and expensive. Finally, it is a public process-you may not want your affairs discussed in court where you run the risk of encountering a homophobic judge with a bias against giving your partner this power. If you trust your agent enough to give him or her these powers, consider making the DPA immediately effective, with limitations, to avoid courthouse questions. The purpose of the DPA is to avoid litigation. If the DPA is limited to when the individual becomes incapacitated or disabled, then litigation tends to be created, since the issue becomes, “Was Pat incapacitated when Lee used the DPA?” An immediate DPA with medical certification, properly drafted by a knowledgeable, community-friendly attorney, can avoid the problem.

Living Will

My mother was very depressed and wanted to die. She had had it with hospitals, surgeries, and life. My father wouldn’t hear of it and couldn’t accept it. My brother and I had written instructions from my mother stating that she did not want to continue medical treatment under those very circumstances. Dad, my brother, and I argued. What we really needed was more communication between us before those final terrible moments. My mother ultimately made her own decision, in her own way. Having gone through that experience with my mother, I can tell you that a living will is absolutely essential when continuing treatment is the issue. A living will allows you to decide ahead of time what treatment you want when you are terminally ill and faced with end-of-life decisions. You may decide that you don’t want to be on life support or you may just want “palliative care” (making the dying person comfortable). It’s your choice — if you make it while you are healthy. If you wait to make these decisions when you are not healthy, you may not be physically capable of doing so, or your family may not honor your wishes. When you make no plans, you waive your right to self determination.

The living will should be used in conjunction with the DPAMC. Think of it as detailed instructions to your physician or agent. Always be sure the two documents are consistent. Also, make sure your primary care provider has an original or certified copy in your medical records and that you take a copy to the hospital with each admission. If you travel frequently or spend a lot of time in your car, it’s a good idea to have an original or certified copy of both documents in the glove compartment.

Every state has its own laws concerning these documents. In states that do not have living wills, like Michigan and Massachusetts, instructions for life support decisions can be written into the DPAMC or, as it is called in Massachusetts, the health care proxy. Utah has living wills. In Colorado, the DPAMC can prioritize whether the doctor is to follow the instructions of the agent or those contained in a living will in the event of a conflict in directions. I cannot emphasize strongly enough the importance of a DPAMC properly prepared for your situation and goals under the laws of the jurisdiction in which you live.

(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)