Creating a medical power of attorney authorizes someone to act, speak, and make decisions on your behalf, including while you are medically incapacitated. Most often, the goal of assigning medical power of attorney is to have someone to carry out your wishes when you are physically unable to yourself. These documents are often accompanied by an advance directive, which states your preferences for life-saving or life-prolonging medical treatment in the event you become incapacitated.
Drafting a medical power of attorney document requires some serious thought. You will need to consider how you might respond to a range of likely scenarios. You also need to make decisions about what powers to give your agent, what instructions to provide them, and whether to restrict their abilities in certain scenarios.
At New Mexico Financial Law, we can provide you with an experienced Albuquerque lawyer to guide you through the process of making your own medical power of attorney. Get tailored advice during a no-obligation consultation when you call 505-503-1637 or contact us online to schedule an appointment today.
You can find example documents that show a templated version of an Albuquerque medical power of attorney. When reading through these documents, you may notice that they involve lots of legal and medical language. Not only that, but they also ask you to make some pretty hefty decisions, such as what forms of life-saving and life-prolonging care you want your agent to consent to.
As a rather stark example, the second clause in the form states the following (emphasis ours):
AGENT’S AUTHORITY: My agent is authorized to obtain and review medical records, reports and information about me and to make all health care decisions for me, including decisions to provide, withhold or withdraw artificial nutrition, hydration and all other forms of health care to keep me alive, except as I state here:
The form then provides a scant two lines to state any exceptions you have to the agent’s scope of power. While the form also allows that additional sheets can be used to expand on this section, the passage illustrates how much ground the form seeks to cover in just a few sentences.
Consider that the above-quoted passage applies to all life-prolonging decisions. Your agent has the opportunity to refuse even basic forms of care, including the insertion of an IV to provide artificial hydration.
Because of the complexity of these situations, it is often in your best interests to create your own customized medical power of attorney document. While this document can be based on a pre-existing form, it also has room to clearly state and logically organize its permissions and instructions, including any desires to restrict or provide life-saving care.
Working with an experienced Albuquerque attorney allows you to understand what sorts of language could work best for stating your preferences in a personalized document. Your lawyer can also help you consider likely scenarios that could arise. Then, they will assist you with sorting through your preferences for responding to these situations, putting those preferences into clear terms, and providing all of the information and legal language required to have those preferences carried out.
Hiring a lawyer also gives you the opportunity to review your medical power of attorney with respect to the totality of your estate plan. A complete estate plan would include not only a medical power of attorney but also an advance directive, a will, and instructions to loved ones regarding other important preferences, such as how you want your remains to be handled. It can also optionally contain a financial power of attorney and trust formation documents.
Working with an experienced lawyer gives you the opportunity to create a comprehensive estate plan that considers all your wishes for medical care, end-of-life treatment, and the disposal of your final estate. Get in touch with New Mexico Financial Law to get assistance and start your planning today.
A medical power of attorney — also sometimes called a healthcare power of attorney (HPOA) — is a legal document granting someone the authority to act on behalf of the document’s creator.
The person granting medical power of attorney is referred to as the principal, while the person designated with authority is known as their agent or attorney-in-fact.
Medical power of attorney can be used for nearly all purposes, including authorizing someone to review medical records or make important decisions on someone else’s behalf. Most of the time, however, it is used for situations where the principal is unable to act on their own. These situations can arise from events, such as the following, where the principal is:
Incapacity typically must be determined by at least two healthcare professionals, one of whom must be a licensed physician. The principal has the opportunity to elect a physician who must be consulted, which is included as part of their advance directive for health care. They can also optionally define a medical condition apart from diagnosed incapacity that would cause their power of attorney to activate, such as an inability to recall basic facts about themself or their finances.
Durable medical power of attorney authorizes the agent to act even in situations where the principal is incapacitated. Without durable power of attorney, the principal only authorizes the agent to act in situations where they have the ability to monitor — and potentially counteract — the agent’s actions.
A durable power of attorney, on the other hand, lasts even after incapacitation. It provides the principal with someone who is capable of speaking for them, sharing their wishes, and conducting necessary functions for their care, such as consenting to certain procedures.
If the principal does not specify when the durable power of attorney activates, then the agent is given authority the moment the document is signed. Alternatively, the principal can delay the activation of the attorney-in-fact’s powers until a condition is met, such as their incapacitation. This arrangement is referred to as a springing medical power of attorney.
The principal can arrange their power of attorney to function any way they want by including specific actionable details and instructions in their document. For example, they can state that the power of attorney will automatically activate upon their 80th birthday and last for a period of 15 years, if they so choose. They can also state that the power of attorney activates only during a specific duration — such as during an upcoming surgery where they will be put under anesthesia for several hours at a time — before automatically terminating.
To ensure that your medical power of attorney provides the optimal arrangements for your goals, values, beliefs, and preferences, refer to an Albuquerque lawyer for assistance.
An advance health care directive is a set of documents that prepares and instructs your medical providers and your loved ones. It is consulted when you have been incapacitated and are unable to voice your preferences for care.
A complete advance health care directive contains all of the following:
Your medical power of attorney designates an agent, and your living will gives them guidance on the types of care you would or would not want to receive. Note that, in the absence of any instructions or limitations, your health care agent is authorized to make any decision that you legally could, so long as they can justify that it is in your best interests.
By designating a primary physician, you can require providers to consult that person when a determination of incapacity needs to be made.
In the absence of a medical power of attorney, a court can appoint an agent for you. The court will prioritize the selection of a loved one who is close to you and responsible for your care. A spouse (or other life partner with a similar role to a spouse) will be the first-selected, followed by an adult child, then a parent, then other next-of-kin.
This above process can introduce delays, and it may result in the selection of an agent the principal would not have chosen themself. For this reason, it is recommended that you complete a durable medical power of attorney so that your preferences can be known and your plans can be carried out without delays.
Regardless of whether they are selected by you or a court, though, an agent has a duty to make decisions that conform to your wishes, to the best of their knowledge. In the absence of explicit instructions or a document otherwise guiding their decisions, they must rely on information provided to them through conversations with you, information provided by others, or other means of understanding what your wishes might have been.
A principal can revoke their medical power of attorney and request a replacement agent at any time while they have capacity. They are able to revoke the power of attorney through any means — verbal, written, or otherwise. To issue a new power of attorney, such as in order to designate a new agent, the principal must put their wishes in writing and sign them.
If the principal is incapacitated, someone with an interest in their well-being can attempt to have an agent’s status revoked if they believe the agent is acting contrary to the principal’s wishes. Alternatively, the principal can designate a co-agent who must be consulted before medical decisions are made.
You are allowed to provide any number of directives, instructions, guidelines, or other instructive materials to your agent so long as they remain within the boundaries of state and federal law.
Most often, a principal will state their wishes concerning medical decisions like whether to:
In addition, the principal will usually authorize the agent to receive and review any private medical information required to make an optimal decision, including relevant components of their medical history.
If the principal neglects to provide specific instructions or otherwise constrain the agent’s authority, they have the same amount of decision-making power as the principal would if they had capacity.
Medical power of attorney is a separate authorization from financial power of attorney. The latter document designates an agent who can conduct financial transactions on behalf of the principal.
The principal is able to give the same person both medical and financial powers of attorney, if they so choose. They can also designate two separate individuals if they feel that doing so is in the best interests of themselves and others involved.
A principal can also designate contingent or “backup” agents to fulfill either or both duties, if their primary choice is unavailable. For example, they can designate a trusted business partner to handle their finances and their spouse to handle medical decisions — but if neither party is available, they can elect their eldest child to fulfill both roles.
Planning for medical power of attorney involves many complicated and tough decisions. You will have to think carefully about your preferences for a broad range of scenarios. You will also want to be precise and clear in your language, so as to provide your agent and other loved ones with clear guidance on what you would want.
New Mexico Financial Law can provide you with an experienced attorney to respectfully help you with these important tasks. By relying on the guidance of a lawyer, you can understand what options you have available and anticipate common challenges that could arise. With this preparation, you can know with confidence that your wishes can be easily understood and reliably carried out.
Get started creating a personalized medical power of attorney and advance directive when you call 505-503-1637 or contact us online to schedule a confidential consultation today.
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