People use the term “power of attorney” for various purposes, including financial matters and even legal issues. However, the specific power delegated is more often about agency than legal matters. The American Bar Association defines power of attorney as giving “one or more persons the authority to act on your behalf as your agent.”
When the power of attorney designation refers to financial matters, the person entrusted with the power can make business decisions on your behalf—like selling assets, distributing funds, and signing contracts that commit you and your resources. You can grant a power of attorney for a limited range of actions and for a specific time, or it can cover almost everything and be valid until the grantor passes away.
Frequently, people designate someone with the power of attorney to make health care decisions on their behalf if they cannot make their own. Every state has some provision for using a power of attorney, and in fact, the proliferation of regulations, directives, and various names can cause confusion. For example, some states have health care proxies, some have separate power of attorney rules for minors and older people, and some require specific state-issued forms along with living wills or advance medical directives.
Individual State Differences Are Well-Intentioned
Each state has developed rules around health care powers of attorney at their own pace and in response to different prompts. No doubt, each one is an effort to fully support the best interests of their residents. But the plethora of divergent rules can cause confusion and result in gaps. As a result, the American Bar Association Commission on Law and Aging developed a standard form providing a fundamental provision of power of attorney for healthcare that it offers for use in all but four states.
Unlike advance healthcare directives, which often attempt to offer particular response choices for various potential scenarios, the ABA multi-state POA form seeks to aid in appointing a health care agent. The ABA took the position that such detailed forms were frequently vague and often obsolete when needed. Instead, it chose to offer a "bare-bones" option that was acceptable to all but four states (New Hampshire, Ohio, Texas, and Wisconsin each require unique disclosures that could not be incorporated into a usable multi-state format).
Who Should I Designate for my Health Care Power of Attorney?
People often choose their spouse, a family member, or close friend to act as their healthcare power of attorney. Those are all valid options, but they are not the only ones to consider. It's a good idea to choose someone geographically close, mentally prepared for the job, and able to assess your preferences and the various options rationally.
You may want to think about what the person you choose may have to face when acting on your behalf. For example, if you have decided that you don’t want “extraordinary measures” taken to extend your life, will your designee have the assertiveness to stand firm in the face of potential opposition to that course? Alternatively, if your expressed preference is to have all possible treatment, will your agent advocate forcefully on your behalf even if the medical staff is discouraging?
In some circumstances, the person you name as your healthcare power of attorney (or proxy) may need to make difficult decisions. It’s a good idea to discuss that possibility with them and be sure that they are willing and able to serve.
