Definition: Durable Power of Attorney for Health Care

A power of attorney is a written instrument that you use to grant another person the authority to act on your behalf. The person to whom you grant this authority is referred to as your attorney-in-fact. As the one granting the authority, you are the principal. You can specify when the power of attorney takes effect. It can be immediate, at a future date, or on the occurrence of a future event.

A durable power of attorney for health care is a power of attorney with which you can grant your attorney-in-fact authority to act on your behalf in relation to your health care in the event you cannot make health care-related decisions for yourself.

A durable power of attorney for health care is usually drafted to be effective immediately. This allows the attorney-in-fact immediate access to your health information to enable him or her to make decisions regarding your health care. Otherwise, the Health Information Privacy and Accountability Act (HIPAA) prevents access to health information. If the document states that it becomes effective only upon your incapacity, as is common in durable powers of attorney for financial matters, the attorney-in-fact would find himself or herself in a Catch-22. That is, he or she would not be able to obtain the personal health information necessary to prove your incapacity. By making the document effective immediately, you and the attorney-in-fact can avoid this problem.

The following are some examples of health care matters in relation to which you can grant your attorney-in-fact the authority to act on your behalf in a durable power of attorney for health care:

  • access to your medical records and personal information;
  • ability to consent to medical treatment (and withhold consent);
  • ability to grant releases of liability that your health care provider may require for treatment;
  • ability to authorize relief from pain; and
  • ability to choose health care personnel for treatment.

In order to avoid any confusion about your wishes regarding treatment while you are incapacitated, it is often a good idea to execute a health care directive concurrently with a durable power of attorney for health care.

Before executing a power of attorney, you must understand the importance and impact of granting these powers to someone else. Your attorney-in-fact will have complete access to personal information and private affairs to the extent that you grant it to him or her. The actions taken by your attorney-in-fact acting within the powers you granted are legally binding on you (and in some cases your estate, your successors, and your heirs) as if you yourself took those actions. In addition, third parties who reasonably rely in good faith and without negligence on your power of attorney will not incur liability for doing so.1 You should therefore not execute a durable power of attorney for health care without giving very careful consideration to who you choose to authorize as your attorney-in-fact.

If you also execute a health care directive, both documents should be consistent with each other.