Durable Power of Attorney for Health Care

September 1, 2011

Power of AttorneyThe standard power of attorney (POA) is a written legal instrument authorizing a person (named an agent or attorney-in-fact) to sign documents and conduct transactions on behalf of the principal or maker who has delegated away that authority. The principal can delegate as much (for instance, a general or complete delegation) or as little (such as a delegation specifically delineating what types of choices the agent may and may not make) power as desired. The principal may end or revoke the arrangement at any time, as long as the principal remains mentally competent to do so.

The power of attorney in its traditional form does not work well as a method for dealing with medical decisionmaking authority on a voluntary, prospective basis. The ordinary power of attorney ends automatically when the principal who created it dies or becomes mentally incompetent. The underlying theory is that, because a deceased or incompetent person no longer has the physical or mental ability to revoke the POA, the law should exercise that right immediately for the principal. Thus, a person who establishes a standard POA to help in managing medical affairs would be cut off from such assistance at precisely the time when assistance is needed the most, namely, when the principal cannot act personally.

In an effort to get around this practical problem, every state legislature has enacted legislation authorizing citizens to create (or execute) a durable power of attorney (DPOA). In contrast to the ordinary POA, the effect of a DPOA may endure or continue beyond the principal’s later incapacity as long as that continuing authority is what the principal intended in executing the DPOA.

To remove any ambiguity about the applicability of the DPOA concept to the area of medical decisionmaking (including choices about life-sustaining medical treatments such as mechanical ventilators or antibiotics), almost every state has passed legislation that explicitly authorizes the use of the DPOA in the medical context. Some statutes use terminology such as health care representative, health care agent, or health care proxy. In addition, a number of states use a single, comprehensive advance directive statute to expressly authorize competent adults to execute both proxy and instruction directives; other states have separate statutes for each type of advance directive. Under most state laws, in order to avoid a real or apparent conflict of interest from materializing, the health care providers for the principal who has executed a DPOA are disqualified from serving as agents under the DPOA. The agent may, but need not be, a family member of the principal.

Proxy directives provide the advantage, for both patients and their health care providers, of legally empowering a live advocate for the patient who can enter into discussions and make decisions regarding the patient’s medical treatment based on the most current information and other considerations, most importantly the agent’s interpretation of the patient’s previously expressed and implied wishes. The DPOA is irrelevant, however, for people who do not have available to name as a potential agent someone else whom they can trust to make future medical decisions for them.

SEE ALSO: Advance directives, Capacity, Informed consent, Living wills

Suggested Reading

  • Bishop, S. (1999). Crossing the decisional abyss: An evaluation of surrogate decision-making statutes as a means of bridging the gap between post-Quinlan red tape and the realization of an incompetent patient’s right to refuse life-sustaining medical treatment. Elder Law Journal, 7, 153—183.
  • Dubler, N. N. (2001). Creating and supporting the proxy-decider: The lawyer—proxy relationship. Georgia Law Review, 35, 517—538.
  • Sabatino, C. P. (1999). The legal and functional status of the medical proxy: Suggestions for statutory reform. Journal of Law, Medicine & Ethics, 27, 52-68.


Category: D