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Durable Power of Attorney for Health Care (DPA, POA)

What is a Durable Power of Attorney for Health Care (DPA, POA)?

A Durable Power of Attorney for Health Care (DPA), commonly called Durable Power of Attorney, is one type of advance directive. With a DPA, a person selects a family member or friend to make decisions about the person's medical treatment if the person ever becomes unable to make or communicate their own medical decisions. The person selected is called the signer's agent, proxy or attorney-in-fact.

A DPA is generally more useful than a Living Will. It becomes effective any time a person is unconscious or unable to make medical decisions. An agent can make decisions for a patient whenever the patient cannot, even if the patient's decision-making ability is only temporarily affected. DPAs are legal in most states. Even where not officially recognized by state law, a DPA can still provide guidance to one's family and doctor about medical care.

How is a DPA different from a Living Will?

Both documents apply only when a person is unable to make heath care decisions.

A Living Will applies only if the patient has a terminal illness or an injury likely to be fatal and has specified in the Living Will the life-sustaining procedures to be provided, withheld or withdrawn. It provides instructions to the doctor.

A DPA is used to name an agent to make health care decisions on the signer's behalf, in compliance with their values and preferences. It becomes effective only in the event that the signer cannot make or communicate their health care decisions. It can also disqualify specific people from being able to make health care decisions on behalf of the signer. If the signer desires, the specific medical treatments and procedures to be provided, withheld or withdrawn may be included in the DPA. Use of the DPA is not limited to patients with a terminal condition or to decisions about life-sustaining procedures.

Must the agent comply with the DPA?

The agent is required to make decisions according to directions the patient has provided in the document or through other means, such as verbal communication. If the patient's wishes regarding specific situations, treatments or procedures are unknown or not clear, the agent has a duty to make decisions based on their understanding of the patient's best interests, considering the patient's condition and prognosis. If the signer wishes, the scope of the agent's authority can be restricted in the DPA. It is important for the signer to discuss their values and preferences with the person who will be their agent.

What if a person's agent is unable to serve in that role?

An alternate agent should be named in case the person appointed as the agent becomes unable or unwilling to act in the signer's behalf.

Should a person have both a Living Will and a Durable Power of Attorney for Health Care (DPA)?

This depends on the person creating the documents and their trust in the knowledge and judgment of the person who would act as the agent. With a DPA, a person's agent can make all of the patient's health care decisions, including those decisions that would be covered by a Living Will. If a person desires life-sustaining procedures to be withheld or withdrawn when in a terminal condition, the person may also want to sign a Living Will. The Living Will gives instructions to the doctor and avoids reliance on an agent to make those decisions. If a person does not know which documents are most appropriate, their doctor or attorney should be consulted for guidance.

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