Medical Power of Attorney

A Durable Power of Attorney is a legal document that designates someone to manage your personal finances and business affairs on his behalf.  It may also be used to designate a person to make medical decision on his behalf.  A Medical Power of Attorney, also referred to as a Health Care Proxy, is a document that assigns the right to make decisions and handle the assigning person’s affairs while unavailable or unable to do so.  One person (the patient) designates another person (the patient-in-fact, or attorney-in-fact) to make medical decisions on his or her behalf in the event of a medical emergency.  A properly drafted and executed Medical Power of Attorney will protect an individual incapable of making care or treatment decisions, and authorize a trusted loved one to make those decisions instead. It can also prevent any questions or conflicts that may arise in the course of dealing with doctors or hospitals.

In many states a person may express his or her wishes regarding life-sustaining support in the Medical Power of Attorney document.  For example, Massachusetts Health Care Power of Attorney allows your agent to know your wishes as he or she makes decisions for you under the document.  It is important to note that a Medical Power of Attorney only becomes effective when you do not have the capacity to make decisions for yourself.  A person still has the right to give doctors and hospital medical treatment decisions as long as he is available and competent to do so.  Also important, not all states recognize a Medical Power of Attorney or Health Care Proxy.  This means a Durable Power of Attorney must be completed instead, and will have the same effect.

Medical Power of Attorney vs. Living Will

A Health Care Power of Attorney is different from a Living Will because it allows you to appoint someone to make health care decisions for you. A Living Will only allows you to express your wishes concerning life-sustaining procedures.  More importantly, just because your intentions may be clearly expressed in your living will, those wishes may be interrupted by court proceedings or alternative decisions by immediate family members.

Power of Attorney in Same Sex Couples

Careful estate planning is important to all couples, but especially important for same-sex couples whether married or not.  Many of the legal protections afforded to married couples are not available to gay couples.  Ordinarily, a hospital or doctor is only authorized to discuss medical treatment with an immediate family member.  Since in many states same sex marriage is not legal, a same-sex partner is not considered immediate family.  The same is true for civil unions.  The best way to avoid any barriers to access or information during medical treatment is a Medical Power of Attorney or a Durable Power of Attorney that contains a medical care clause.  Once completed, the designated person is legally entitled to visiting rights and has legal authority to participate in the medical care and treatment decisions.

Currently, same-sex marriage is only legal in four states, Connecticut, Massachusetts, Iowa, New Hampshire, and Vermont and Washington D.C.  That’s only 10% of the country.  In the absence of a properly executed Medical Power of Attorney, partner’s right to information and decision-making may be unenforceable.  Without proper documents, courts by default turn to biological family members, no matter how long same-sex partners have been together.  Additionally, where in Massachusetts a same-sex spouse may receive the right to medical information and decision-making by virtue of the legal marriage, if a medical emergency were to arise in another state those rights may not be protected.