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In basic terms, a medical power of attorney is a legal instrument that designates a person to make medical decisions on your behalf when you are not able to do so. This type of power of attorney is also referred to as a healthcare power of attorney or power of attorney for healthcare.
Parties to a Medical Power of Attorney
In the state of California, the person who creates a medical power of attorney is know as the principal or grantor. The person designated in a medical power of attorney to make decisions for a grantor is known as the agent or attorney-in-fact.
What is Durability?
A key element of a medical power of attorney is that it must be what legally is known as “durable.” A durable power of attorney is one that remains in full force and effect after the person who created the instrument – the principal – becomes incapacitated in some manner and unable to make decisions for his or her self. In the final analysis, the whole purpose of a medical power of attorney is to have a person authorized to make healthcare decisions on your behalf when you are unable to do so for one reason or another.
Medical Power of Attorney Versus Living Will
As mentioned a moment ago, a medical power of attorney is designed to delegate authority to another person to make healthcare decisions on your behalf when you cannot do so. A living will is what oftentimes is a companion instrument. A living will sets parameters in regard to the types of extraordinary measures can be taken to maintain your life. For example, a living will sets forth whether or not you want to be maintained on “life support” when you would pass away naturally without those extraordinary devices (like a ventilator) in place.
Medical Power of Attorney Versus Financial Power of Attorney
A power of attorney for healthcare and a financial power of attorney cannot be combined in the same instrument. The same person can be your agent for medical and financial matters. Nonetheless, that authority must be granted to the person you desire in two separate powers of attorney.
Witnesses to a Medical Power of Attorney
The state of California has specific requirements for how a medical power of attorney is to be witnessed. This type of power of attorney can be witnessed in one of two ways.
First, a duly authorized notary public can witness a medical power of attorney. Second, in the alternative, a power of attorney of this type can be two witnesses. The agent named to act on your behalf cannot be a witness to the signing or execution of your medical power of attorney.
Original Copy of Power of Attorney
The original power of attorney needs to be maintained in a location that is accessible to the person you designate as your agent. The agent must be able to have the original medical power of attorney in hand in order to make healthcare decisions on your behalf when you are unable to do so.
Some people provide the original power of attorney to their designated agent after the instrument is created. Whilst that is a logical decision, it can somewhat complicate matters if you elect to change the designation of your agent at a future point in time.
Power of Attorney Form
Hospitals, medical centers, doctor’s offices, even churches and other religious centers can provide you with standard form medical powers of attorney. Generally speaking, these types of entities are good at making certain that these standard form medical powers of attorney are in compliance with the current version of applicable California law.
Lawyers and Medical Power of Attorney
If you have a lawyer, odds are that he of she will be able to provide you with a legally appropriate medical power of attorney form. Indeed, if your undertaken estate planning with a lawyer, this instrument is likely to be a part of comprehensive services.
If you do have a lawyer, having your attorney maintain the original medical power of attorney can be a good idea. This is a location that would be accessible to your agent should that individual’s services become needed.
Terminating a Medical Power of Attorney
There are different methods to terminate a medical power of attorney. You do have the option for placing a termination date within a medical power of attorney. This isn’t necessarily advisable because you may overlook this terminal date and end up not having a medical power of attorney in force when you need it.
In California, a medical power of attorney can be terminated by destroying the original of the instrument. In the alternative, you can deliver notification to the agent named in the instrument that the power of attorney is terminated. The creation of a new power of attorney also terminates an instrument that predates it. Finally, a medical power of attorney terminates when you die.
