Medical Power of Attorney

What is Medical Power of Attorney?

In Illinois, you can choose someone to be your “health care agent.”  A Medical Power of Attorney is a legal instrument that allows you to select the person that you want to make healthcare decisions for you if and when you become unable to make them for yourself. The person you pick is representative for purposes of healthcare decision-making only, he/she should make decisions based on your personal values and wishes.

Whom Should I Choose to be my Health Care Agent?

You can pick a family member, but you do not have to. Your agent will have the responsibility to make medical treatment decisions, even if other people close to you might urge a different decision. The selection of your agent should be done carefully, as he or she will have ultimate decision-making authority for your treatment decisions once you are no longer able to voice your preferences. Choose a family member, friend, or other person who:

(i)    Is at least 18 years old;
(ii)   Knows you well;
(iii)  You trust to do what is best for you and is willing to carry out your wishes, even if he or she may not agree with your wishes;
(iv)  Would be comfortable talking with and questioning your physicians and other health care providers;
(v)   Would not be too upset to carry out your wishes if you became very sick; and
(vi)  Can be there for you when you need him/her and is willing to accept this important role.

What Healthcare Decisions can my Agent Make?

If there is ever a period of time when your physician determines that you cannot make your own health care decisions, or if you do not want to make your own decisions, some of the decisions your agent could make are as follows:

(i)     Talk with physicians and other health care providers about your condition.
(ii)    See medical records and approve who else can see them.
(iii)   Give permission for medical tests, medicines, surgery, or other treatments.
(iv)   Choose where you receive care and which physicians or others provide will administer care.
(v)    Decide to accept, withdraw, or decline treatments designed to keep you alive if you are near death or not likely to recover. You may choose to include guidelines and/or restrictions to your agent’s authority.
(vi)   Agree or decline to donate your organs or your whole body if you have not already made this decision yourself. This could include donation for transplant, research, and/or education. (You should let your agent     know whether you are registered as a donor in the First Person Consent registry maintained by the Illinois Secretary of State or whether you have agreed to donate your whole body for medical research and/or education.)
(vii)  Decide what to do with your remains after you have died, if you have not already made plans.
(viii) Talk with your other loved ones to help come to a decision (but your designated agent will have the final say over the decisions.)

What are some of the Things I want my Health Care Agent to Know?

The selection of your agent should be considered carefully, as your agent will have the ultimate decision making authority once this document goes into effect, in most instances after you are no longer able to make your own decisions. While the goal is for your agent to make decisions in keeping with your preferences (and in the majority of circumstances that is what happens,) please know that the law does allow your agent to make decisions to direct or refuse health care interventions or withdraw treatment. Your agent will need to think about conversations you have had, your personality, and how you handled important health care issues in the past. Therefore, it is important to talk with your agent and your family about such things as:

(i)     What is most important to you in your life?
(ii)    How important is it to you to avoid pain and suffering?
(iii)   If you had to choose, is it more important to you to live as long as possible, or toavoid prolonged suffering or disability?
(iv)   Would you rather be at home or in a hospital for the last days or weeks of your life?
(v)    Do you have religious, spiritual, or cultural beliefs that you want your agent and others to consider?
(vi)   Do you wish to make a significant contribution to medical science after your death through organ or whole body donation?
(vii)  Do you have an existing advanced directive, such as a Living Will, that contains your specific wishes about health care that is only delaying your death? If you do, make sure to discuss with your agent the directive itself and the treatment decisions contained within that outline your preferences. Make sure that your agent agrees to honor the wishes expressed in your advance directive.

Can I Name an Alternative or a Back-up Representative in Addition to My First Choice?

Yes. You may name one or more “successor representatives” to fill this role if your first choice is unable, unwilling or disqualified to serve.

What Will Happen if I do not Choose a Health Care Agent?

If you become unable to make your own health care decisions and have not named an agent in writing, your physician and other health care providers will ask a family member, friend, or guardian to make decisions for you. In Illinois, a law directs which of these individuals will be consulted.  These individuals are called  “surrogates.”  There are reasons why you may want to name an agent rather than rely on a surrogate:

(i)     The person or people listed by this law may not be who you would want to make decisions for you.
(ii)    Some family members or friends might not be able or willing to make decisions as you would want them to.
(iii)   Family members and friends may disagree with one another about the best decisions.
(iv)   Under some circumstances, a surrogate may not be able to make the same kinds of decisions that an agent can make.

What if there is no one Available Whom I Trust to be my Agent?

In this situation, it is especially important to talk to your physician and other health care providers and create written guidance about what you want or do not want, in case you are ever critically ill and cannot express your own wishes. You can (1) complete a Living Will, (2) you can write your wishes down and provide them to your physician, or (3) you can ask you physician or other healthcare provider to document your wishes in your medical chart.  You might also want to use written or on-line resources to guide you through this process.

How is a Medical Power of Attorney Different from a Living Will?

A Living Will is a statement of decisions you made yourself. It tells healthcare providers that you do not want to be kept alive by machines, if there is no hope of getting better. A Medical Power of Attorney allows you to pick someone else and grant him/her the authority to make medical decisions for you if you are unable to make them for yourself. It is meant to deal with situations that you cannot predict. Because you cannot predict these situations, you cannot decide in advance what choice you would make. 

Do I Still Need a Living Will If I Have a Medical Power of Attorney?

Yes. Any decisions that you make in your Living Will must be followed by the person you name as your Medical Power of Attorney.

How will I know if I am able to Make Healthcare Decisions for Myself?

A doctor or psychologist (or in some states, an advance practice nurse working with a doctor) will make this determination. Commonly, the doctor will say that you lack the capacity to make healthcare decisions. He or she may also say that you are incapacitated. If you are conscious, you will be told that you have been found to be incapacitated and that your Medical Power of Attorney Representative will be making decisions regarding your treatment.

How Does the Doctor Decide that I am Unable to Make Medical Decisions for Myself?

The qualifying medical professional will evaluate your ability to:

(i)     Appreciate the nature and implications of a health care decision; (Are you able to understand what your doctor is telling you and understand the consequences of any choices that you make?)
(ii)    Make an informed choice regarding the alternatives presented; (Are you able to process the information the doctor gives you and make your decision based on this process?) 
(iii)   Communicate that choice in an unambiguous manner. (Are you able to let your doctor know what you have decided? You may state your choice, write it down, or in some case, just nod your head. The   important thing here is that there must be no doubt about what your are trying to express.)

If the doctor determines that you are unable to do these things, he or she must write this in your medical records. The doctor’s statement must include the reason why you were found to lack capacity.

Does My Medical Power of Attorney Representative Have to Pay My Medical Bills?

No. A Medical Power of Attorney only gives the person you appoint authority to make healthcare related decisions. This does not include authority to pay your bills. For that you need a Durable Financial Power of Attorney. It is entirely possible that the same person may hold both your Medical Power of Attorney and your Financial Power of Attorney. However, if this is not the case, your Medical Power of Attorney Representative has no financial authority.

Disclaimer - This article is provided for educational purposes only.  Nothing contained herein should be considered "legal advice", and this information should not be relied upon by any reader as such. The information presented herein is not necessarily presented based upon the laws within any specific state, and such laws vary from state to state. The provision of this discussion shall not be deemed to create an attorney-client relationship between the reader and EPM and/or any other third party.  This discussion was not provided as a "legal advertisement" and the readers have no duty or obligation to provide any compensation for the information provided herein.  The determination of the need for legal services and the choice of a lawyer are extremely important decisions that should not be based solely upon advertisements, endorsements, or self-proclaimed expertise.