Designating a power of attorney for health care is an important part of estate planning. It is important to appoint someone trustworthy to see to medical issues if someone is no longer able to make those decisions on their own. The person who creates a durable power of attorney for health care is responsible for making sure their health care providers have a copy of the document and keep them up to date about any changes.
This article will discuss:
- What is a durable power of attorney for health care?
- What must a durable power of attorney for health care contain?
- Who is eligible to be an attorney in fact?
- What if the durable power of attorney for health care is from another state?
- Does the law provide an example durable power of attorney for health care form?
- Can more than one person be an attorney in fact?
- Can a court rule against the attorney in fact?
- What is the attorney in fact’s duty?
- What if a physician wants to withhold or withdraw health care?
- How does someone revoke a durable power of attorney for health care?
- Will an attorney in fact ever be criminally prosecuted or civilly liable?
- What if the attorney in fact is an ex-spouse?
What is a durable power of attorney for health care?
A durable power of attorney for health care is a document created by an adult person (called a principal), authorizing another individual (called the “attorney in fact”), to make health care decisions for the principal. The attorney in fact will make decisions on behalf of the principal if the principal is unable, in the judgment of the attending physician, to make health care decisions.
An attorney in fact does not need to be an attorney who practices law. This person acts as the principal’s agent, making decisions in the principal’s best interests.
What must a durable power of attorney for health care contain?
The attorney in fact may only make health care decisions if the durable power of attorney meets certain criteria. The durable power of attorney for health care must:
- Explicitly authorize the attorney in fact to make health care decisions;
- Contain the date of its execution (the date it is signed);
- Be acknowledged by at least two individuals who, in the presence of each other and the principal, witnessed the signing of the durable power of attorney for health care by the principal or by another person acting on behalf of the principal at the principal’s direction, OR is acknowledged by a notary
The witnesses cannot be a health care provider attending the principal at the date of execution, or one of the doctor’s employees. The witnesses also cannot be the attorney in fact, or be an individual under eighteen years old. At least one of the witnesses cannot be related to the principal.
Who is eligible to be an attorney in fact?
Any individual may be an attorney in fact, except for a health care provider attending the principal on the date of the durable power of attorney for health care’s execution, or one of their employees, unless the employee is related to the principal.
What if the durable power of attorney for health care is from another state?
If the durable power of attorney for health care is from another state, Iowa will allow the document to be enforceable if it complied with the laws of the state it was executed in. The armed forces also have advanced directives, which will also be valid in Iowa, if they meet armed forces directive requirements.
Does the law provide an example durable power of attorney for health care form?
Iowa Code chapter 144B.5 does provide an example durable power of attorney for health care form it is:
“I hereby designate ................................ as my attorney in fact (my agent) and give to my agent the power to make health care decisions for me. This power exists only when I am unable, in the judgment of my attending physician, to make those health care decisions. The attorney in fact must act consistently with my desires as stated in this document or otherwise made known.
Except as otherwise specified in this document, this document gives my agent the power, where otherwise consistent with the law of this state, to consent to my physician not giving health care or stopping health care which is necessary to keep me alive.
This document gives my agent power to make health care decisions on my behalf, including to consent, to refuse to consent, or to withdraw consent to the provision of any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition. This power is subject to any statement of my desires and any limitations included in this document.
My agent has the right to examine my medical records and to consent to disclosure of such records.”
The principal may also provide specific instructions in the document, as long as they are consistent with the law, and add a section stating the attorney in fact has been notified and consents to the designation.
Can more than one person be an attorney in fact?
The law allows the principal to list alternative attorneys in fact in the durable power of attorney for health care, should the primary attorney in fact be unavailable.
Can a district court rule against the attorney in fact?
A district court could specifically find that the attorney in fact is acting in a manner contrary to the wishes of the principal or the durable power of attorney for health care. Otherwise, the attorney in fact who is willing to make health care decisions, and is known to the physician, has priority over any other person (provided the principal, in the opinion of the physician, is unable to make their own decisions).
What is the attorney in fact’s duty?
The attorney in fact has the duty to act in accordance with the principal’s desires expressed in the durable power of attorney for health care, or which the attorney in fact is otherwise aware.
The attorney in fact has the same right as the principal to receive and review medical records, and to consent to disclose medical records.
The attorney in fact must act in good faith, which here means “consistent with the desires of the principle, or where those desires are unknown, acting in the best interests of the principal. When making these decisions, the attorney in fact should take into account the principal’s overall medical condition and prognosis.
What if the physician and attorney in fact want to withhold or withdraw health care?
If the principal objects to a decision to withhold or withdraw health care, the principal is presumed to be able to make that decision. The health care will then continue or begin.
How does a principal revoke a durable power of attorney for health care?
The durable power of attorney for health care may be revoked (cancelled) at any time. It may be revoked by any manner by which the principal is able to communicate the intent to revoke, without regard to mental or physical condition. The principal must notify the attorney in fact orally or in writing. The principal may also notify the health care provider orally or in writing, while that provider is providing health care. Another person may also notify the health care provider at the principle’s direction. The principal is presumed to have the capacity to revoke a durable power of attorney for health care.
Also, unless it otherwise provides, a new durable power of attorney for health care revokes a previous durable power of attorney for health care. If the attorney in fact has not heard of the end of their authority and, in good faith, believes they are still in this position, they will not be liable for civil liability or criminal prosecution for decisions they make.
Will an attorney in fact ever be criminally prosecuted or civilly liable?
An attorney in fact is not subject to criminal prosecution or civil liability for any health care decision made in good faith pursuant to the durable power of attorney for health care, and the law will assume the attorney in fact to be acting in good faith and in the best interests of the principal. Someone challenging the actions of the attorney in fact must prove they are not acting in good faith and in the best interests of the principal by clear and convincing evidence.
What happens if the attorney in fact is a spouse, and they will soon be divorced?
If the attorney in fact is a spouse, and the principal and attorney in fact are getting divorced, the marriage is revoked upon the time of the dissolution. Therefore, the principal should change their durable power of attorney for health care as soon as the divorce petition is filed. Otherwise, the spouse has this power all throughout the divorce proceedings.
If the durable power of attorney for health care is not revoked, and the parties remarry, the power is reinstated to the spouse.
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