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Durable Medical Power of Attorney

durable medical power of attorney
ELDER NEEDS Durable Medical Power of Attorney

A durable medical power of attorney (POA) is one of the most important documents in your estate plan. This important health care directive allows you, when of sound mind, to appoint someone that will make your medical decisions on your behalf if you're incapacitated or unable to make decisions on your own. 

What Is a Durable Medical Power of Attorney? 

As an estate planning document, a durable medical POA is essential because it enables you to name an agent that is responsible for making medical decisions on your behalf. The agent may be anyone you wish: 

  • Partner 
  • Sibling 
  • Friends 
  • Anyone 

The document lasts until it is revoked or you're able to make decisions on your own again. The term "durable" means that the document never becomes invalid. 

How Does a Durable Medical Power of Attorney Work?  

A medical POA is a directive that is dictated to the exact wants of the person having the directive drafted. When drafted, the medical POA can have: 

  • Provisions for specific medical actions 
  • Decisions on medical treatment 

Each state is allowed to have its own set of rules for this health care directive, and it may need to be: 

  • Signed by a notary 
  • Notarized 
  • Witnessed by one or more parties 

Technically, you don't need an attorney to help you draft a basic medical power of attorney, but it's often in your best interest to work with an estate planning attorney. An attorney will ensure that the document is legally binding, and they can answer any questions that you have regarding your medical treatment requests. 

It's important to note that you can create and revoke a medical power of attorney at any time. As long as you remain medically sound and capable of making your own decisions, the agent listed on your directive will not be able to make medical decisions on your behalf. 

"Though you are legally permitted to name more than one person to make health care decisions for you, you should name only one agent when you make your power of attorney for health care," explains Nolo

The durable medical power of attorney allows your agent to determine: 

  • Which facility or doctor you should see. 
  • Which tests should and shouldn't be performed. 
  • If or when you should have surgery. 
  • Drug treatments. 
  • If extending life or controlling comfort is optimal. 

Your agent will even have the power to decide to "pull the plug" if you're on life support. Of course, if you have specific medical requests, such as to deny life support, you can add this into your medical POA. 

Who Needs a Durable Medical Power of Attorney? 

If you don't have a medical POA, the court will often appoint someone to act on your behalf. This is referred to as “guardianship.” Here is a video that discusses the differences between a POA and guardianship. When you don't have a health care directive in place, doctors will continue to do everything in their power to save your life. 

If there is no power of attorney or health care surrogate designation signed, then you can rely on the Florida Health Care Proxy statute. Spouses are, by law, allowed to make medical decisions for their spouses when they're incapacitated and no other documentation exists. However, it is always better and easier to have this properly documented - whether you want your spouse to be able to make healthcare decisions for you or not.

If you don't want your spouse to have this power, you can have a medical power of attorney drafted that removes this legal right from your spouse. Minors will have their parents make medical decisions on their behalf. 

Legal guardians will be able to make medical decisions for the minors in their care. 

You only need a power of attorney if you wish to name someone to be in charge of your medical decisions. Parents often name their adult children in these directives, especially if they're widowed so that their children can speak to their doctor and make medical decisions on their behalf. 

When Should Someone Set Up A Durable Medical Power of Attorney?  

Setting up a medical POA must be done when you're of "sound mind." If you have a medical issue, are going into surgery, or are working on your estate plan, it's never too early to have a durable medical power of attorney in place. 

When you create a medical POA, you have a right to revoke it at any time. 

If you're married, you're unlikely to need to have a health care directive created. Otherwise, you can and should set up this health care directive as soon as possible. If for some reason, you don't have any wishes for your health care, not having a durable medical POA will only lead to doctors trying their best to save your life. 

How Can an Estate Planning Attorney Help with A Durable Medical Power of Attorney? 

An estate planning attorney can ensure that the proper language is used, in accordance with laws, that allow a health care agent to the ability to refuse or consent to treatments on the behalf of another person. 

Your attorney will ensure that your durable medical power of attorney adheres to state laws and may also want to discuss a living will for you. 

When an attorney handles your health care directives, you can be sure that your legal documents are valid and executable. 

Reach out today to talk about your plan and set up a durable medical power of attorney or another medical directive in order to protect your future.

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Frequently Asked Questions

What is the difference between a medical power of attorney and a durable power of attorney?
A durable power of attorney can be for medical use or financial use, depending on what it is intended to cover. In this case “durable” just means that the terms of the POA will still be valid after the person is incapacitated or otherwise unable to make decisions on their own behalf.
What are the 3 types of power of attorney?
There are actually many different types of power of attorney, not just 3 as is commonly thought. In general, however, the different types of power of attorney can be classified into one of the following categories:

- Durable Power of Attorney
- Medical Power of Attorney
- General Power of Attorney
- Limited (Special) Power of Attorney
- Springing (or Conditional) Power of Attorney
What happens if you have no medical power of attorney?
If you fall ill or are otherwise incapacitated, someone else will be responsible for making decisions about your medical care. A medical power of attorney provides you the opportunity to make these decisions on your own before the need arises. If you don’t have one, however, you will have no say as to who gets to make these decisions. There is a prioritized list as to who this responsibility will fall to, generally starting with a spouse if possible, followed by any adult children or parents of the patient.
Jason Neufeld is the author of the

Florida Medicaid
Planning Book

How to Get Medicaid to Pay for Some or All of Your Long-Term Care Expenses:Without having to wait 5 years | without having to sell your house | without have to go broke first! (a Florida Medicaid Lawyer's Guide For Non-Lawyers)


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