Of all the decisions that you'll make on an advance health care directive, choosing who to select as your agent under a medical power of attorney, also known as a power of attorney for health care, is the most important.
It is impossible to predict all future circumstances that might arise with regard to your health, and therefore selecting an agent who you believe can interpret and represent your wishes is the best way to make your advance health care directive resilient.
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:
- is at least 18 years old;
- knows you well;
- 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;
- would be comfortable talking with and questioning your physicians and other health care providers;
- would not be too upset to carry out your wishes if you became very sick; and
- can be there for you when you need it and is willing to accept this important role
Prior to nominating someone to serve as your health care agent in an advance health care directive, make sure that you have a conversation with them discussing your intent and your health care wishes. Depending on where you live, your health care agent may need to sign an agreement formally accepting the designation.
People not eligible to serve as an agent under a medical power of attorney
State law discourages or prevents certain people from serving as your agent under a medical power of attorney. These restrictions are intended to prevent conflicts of interests in your health care choices. For most states, the following classes of individuals are unable to serve as your health care agent:
- Any owner, operator, or employee of a residential long-term health-care institution at which you are receiving care
- Doctors or medical staff of the attending medical institution
- Anyone serving as a witness to your signature of your medical power of attorney or advance health care directive
Choosing more than one agent
A typical advance health care directives provides the opportunity to designate a single agent as well as first and second alternates. If your primary agent is for whatever reason unavailable, your alternates can step in to fulfill the role.
Even though most state statutes allow you to nominate co-agents – two or more individuals acting at the same time – most estate planning attorneys do not recommend doing so. If the co-agents are not all readily available or do not agree, your health care team may encounter difficulties in moving to a speedy solution, which could increase your healthcare costs and lead to suboptimal care. Although you can partially mitigate this risk by empowering co-agents to act severally vs. jointly, that still doesn't resolve potential disagreements between two co-agents who are both present with differing opinions on the decision that would best fit your interest. You can specify a method for resolving disagreements, but again that dispute resolution process may add unnecessary time and cost to your care.
What can an agent acting under a medical power of attorney do?
Unless you choose to limit your agent’s authority, an agent acting under a medical care power of attorney can make or consent to any medical choice that you yourself could make if you had capacity.
By creating your medical power of attorney as part of a broader advance health care directive like the kind available with Just In Case Estates’ last will and revocable living trust plans, you can designate a health care agent and successor agent, specify the powers that you want your agents to hold, and provide your agents and attending medical team instructions regarding your end-of-life, organ donation, and other health care wishes.
