Power of Attorney:  a written authorization to represent or act on another’s behalf in some legal or official matter.  The person assigning the Power of Attorney (POA) is the “grantor”.

Healthcare Power of Attorney (POA-HC), or durable Power of Attorney (D-POA): Person or Persons designated by the grantor to make medical decisions for the grantor in the event the grantor becomes incapacitated or unable to make decisions for him/ herself..

• The circumstances under which the document is activated are defined.

• The document may:

  •  Provide clarification or legal authority under specific conditions (e.g., in some states, the POA document also clarifies authority to place the grantor in a long-term care facility if necessary and to withdraw a feeding tube if necessary). 

  • Be defined by state statutes; as such, there may be significantly more to the document than is specified in the actual document itself.  For example, statues may define when a POA can be fired or revoked, or under what circumstances the document should be activated and deactivated (e.g., in some states, POA activation requires 2 physicians, or 1 physician and 1 psychologist to activate based on a clinical exam.  There is no statute on how many providers are necessary to deactivate the POA).

  • Not allow for placement in a locked psychiatric unit, or force individuals to take medications against their will, particularly psychiatric medications.

  • Not allow a POA to delegate the responsibility to others.  If a POA cannot fulfill the role, he/she can abdicate in writing, at which point the secondary POA becomes the primary POA in activation, or the case defaults to guardianship if there is no secondary POA named.

• The POA should operate under the principle of “substituted judgement” – what, if the grantor could speak for him/herself, would he/she want done under the current circumstances.

• To name and assign a POA, an individual must be able to articulate and define a POA’s role (i.e. “a person who makes health care decisions for me when I cannot”).

  • It is a common misconception that a POA is activated upon completion.This is untrue as the POA is only activated upon the medical determination that the grantor is unable to make medical decisions on his/her behalf.

  • A person may still retain limited capacity to assign a POA even if he/she is deemed non-decisional if they can demonstrate an understanding of the document and its implications.

    • Under these circumstances, after careful documentation of the above, a POA can be assigned, then immediately activated.

    • This represents the theory that medical decision making is a continuum on a spectrum, rather than an absolute binary condition.

  • To prevent conflicts of interest, a physician often cannot draft a power of attorney for healthcare document, although they can provide counseling and recommendations towards it.A state form can be signed and notarized or witnessed by the individual, or drafted and witnessed /notarized by an attorney.

  • In most disputed POA for health care circumstances, the default is to have a court review the situation and render a verdict or decision.

  • A separate POA for Finances document must be drawn up while the individual still retains decision making capacity, or financial decisions may otherwise revert to the courts.

Surrogate decision maker: A state may establish a hierarchy of surrogate decision makers.  Often, the individual must assent to, or agree with, the selection of the surrogate.  If they do not, the case may revert to the court for guardianship.

• The Illinois Health Care Surrogate Act allows family or friends to make medical decisions on behalf of a non-decisional person if no Power of Attorney for Health Care or Living Will Declaration exists.The Act specifies the conditions that are applicable and when.It also stipulates that the individual has the right to refuse the surrogate, in which case the Health Care Surrogate Act does not apply.

• The surrogate should still operate under the principle of “substituted judgement”.

• The individual may need to provide assent, or tacit agreement, with the POA even though they cannot provide legal consent.

• Legal protections may exist to protect individuals in “sensitive” situations (e.g. mental health provision, major surgery or other procedures, placement in a locked unit).

Guardianship: A guardian, or conservator, is a court appointed decision maker for an individual who lacks decision making capacity, and either cannot or will not assign a POA.  A guardian can be a family member, or in some cases can be assigned to a corporate/court appointed guardian and assigned case-worker.

• Guardianship often defines competence, and may extend beyond healthcare decisions to financial, legal, and personal issues.

  • Guardianship may define whether a person is capable of handling:

    • Healthcare decisions – including involuntary commitment and enforced medication administration and non-life sustaining surgeries.

    • Financial decisions – including estate management and assets management.

    • Personal decisions – including the right to marry, divorce, move, or adopt; the right to drive, hunt, fish, or own a firearm; the right to vote and serve on a jury.

    • Ethical decisions – the right to participate in research studies, experimental treatments, and clinical trials.

• There is a formal legal process for obtaining guardianship, and guardianship may be contested by either the individual, or family/friends who wish to serve in that capacity.

• States may have specific limitations to the role of a guardian as well, including whether the guardian can change or reassign resuscitation orders.

• Guardianship can only be revoked or reassigned through the courts.

• Until a formal guardianship can be established, the court may assign a “guardian ad litem” to protect an individual’s rights during the guardianship process.

• Physicians or Psychologists complete a medical assessment of decision making capacity; these may still require testimony at a guardianship hearing.

• It is not unusual for a non-contested guardianship to cost in excess of $1,000, depending on the jurisdiction and location of the petition.

• Guardianship cases are usually heard in the county or jurisdiction where the patient resides.