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Medical Powers Of Attorney 101

Gene Kirzhner Oct. 28, 2014

Medical durable powers of attorney, also known as health care proxies, are documents that allow third persons to speak on another’s behalf in order to convey the person’s medical and health care wishes. Commonly, spouses appoint one another to serve as each other’s agent, but children, other family members, and trusted friends are also frequently named as agents, depending on the person’s unique circumstances.

One question that often arises about these documents is: When are they effective? In other words, are they activated at the moment they are signed, or at some future point in time? Can the agent begin making decisions on behalf of the signer of the document right away? Clients sometimes complain that their documents have been “turned down” by medical professionals who claim that they have not been “invoked” yet.

Generally speaking, medical durable powers of attorney are effective only when the individual who has signed the document is unable to “speak for himself”. That is, only when the person is unable to communicate his or her own wishes to the doctor. Each state has its own statute governing the specific guidelines surrounding medical powers of attorney.

In Rhode Island, the statute states that, “[a] patient has the right to make decisions regarding use of life sustaining procedures as long as the patient is able to do so. If a patient is not able to make those decisions, the durable power of attorney governs decisions regarding use of life sustaining procedures.” So once a medical durable power of attorney is signed in Rhode Island, it lies dormant until that time which the signer of the document is unable to “make his own decisions.”

While this portion of Rhode Island’s statute speaks only to “life sustaining procedures”, medical durable powers of attorney also allow the agent to convey other, more basic health care wishes and desires. For instance, some patients may have religious beliefs which guide their decision-making on things like the types of medications or procedures they wish to receive (or not receive). Where they are unable to express these wishes to medical professionals, the medical durable power of attorney usually permits the agent to voice these wishes and concerns on the patient’s behalf. A well-written medical durable power of attorney will actually spell such specific wishes out within the document so as to avoid any uncertainty.

The Rhode Island statute governing medical durable powers of attorney goes on to say that they may be revoked by the patient regardless of his or her mental or physical condition. So long as the patient can communicate “an intent to revoke”, a physician must honor it and must make note in the patient’s file. The statute goes on to say, however, that only the physician who has received such a communication is actually bound by it. Other medical professionals who have not received actual notice of revocation will not be held liable for following what appears to be a valid medical durable power of attorney.

Also important is the way in which the medical durable power of attorney is signed. An improperly signed or witnessed medical durable power of attorney may cause it to be invalid. Rhode Island’s statute mandates that the document be signed by two witnesses, neither of whom may be “a health care provider, an employee of a health care provider, the operator of a community care facility, nor an employee of an operator of a community care facility.” Furthermore, the witnesses may not be related to the patient signing the document, whether by blood, marriage or adoption, nor may the witnesses be persons who are entitled to inherit from the patient in the event of the patient’s demise.