If illness or injury prevent you from directing your own health care, someone must step in to speak for you. Your health care representative will be responsible for working with doctors to make the best treatment choices for you, following any guidance you’ve left in a Living Will or other document -- or simply making choices based on your representative’s best understanding of what you would want.
Who Makes Your Medical Decisions If You Can’t
Unless you make a document naming your health care representative, state law says who will get this very important job -- usually it will be your spouse, children, parents, or other closest family members. To minimize possible conflicts and ensure your health care decisions are placed in the hands of the person you trust the most, you’ll want to prepare a Durable Power of Attorney for Health Care.
The document naming your health care representative may also be called a Medical Power of Attorney, Appointment of Health Care Proxy, Surrogate Designation, or something similar. The person you name as your representative is most commonly called your “health care agent,” though you may also terms like “attorney-in-fact,” health care proxy, or surrogate.
Your Health Care Agent’s Powers
When you make a Durable Power of Attorney for Health Care, you can give your agent as much or as little power as you choose. Ideally, you will name a representative who you trust enough to oversee all aspects of your medical care.
Normally, this means your agent will be allowed to:
- consent to or refuse medical treatment to the same extent you could for yourself, with limited exceptions such as terminating a pregnancy, authorizing some psychiatric treatments, or going against any of your known wishes (unless you explicitly give your agent permission to override your previous instructions)
- see your medical records
- select or change your health care providers
- choose the facilities where you will receive treatment
- visit you at any time in any medical facility, or
- go to court on your behalf, if a doctor or medical facility refuses to honor your documented wishes for care or the authority of your health care agent.
Giving Your Agent Additional Powers
A Durable Power of Attorney for Health Care begins when doctors determine you are no longer able to make your own health care decisions -- and it usually ends upon your death. However, in most states, you can give your agent the authority to handle some matters after your death. These powers may include making sure your organ donation wishes are carried out, authorizing an autopsy, or arranging the burial or cremation of your body. If you want your agent to handle any or all of these things for you, you should specifically address them in your power of attorney document.
Limiting Your Agent’s Authority
Many states publish Health Care Power of Attorney forms that invite you to limit your health care agent’s power in any way you wish. For example, someone who wants feeding tubes may state that their health care agent may not grant permission to have them withheld or withdrawn. Keep in mind that your agent is legally required to make health care decisions in your best interest and always in accordance with what your agent knows or believes you would want.
Because your medical needs may unfold in ways you can’t predict, you should give careful consideration to any limitations you place on your agent’s authority. The wiser approach may be to document your wishes for health care in a living will and have ongoing conversations with your agent about what you would and would not want, trusting your agent to respond as needed to whatever circumstances may arise in the future.
Learn More
To find out what your state's document appointing a health care agent is called, see What Are Living Wills and Medical Powers of Attorney Called in Maine?
If you're ready to appoint a health care agent, see The Best Sources for Health Care Forms in Maine.
