Health Care Power of Attorney

A type of health care directive, a health care power of attorney is a written designation of an agent to make health care decisions when the person executing the power of attorney is unable to do so.  In many cases, one’s spouse is the natural choice for selection as a health care agent.  A son or daughter may also be a wise choice in some situations.  It’s wise to name an alternative agent should your first choice be unable to serve for any reason.

A health care power of attorney goes beyond the provisions of a living will and provides for health care decisions that are not addressed by a living will, which basically covers “end of life” decisions.  The appointment of a person to act as an agent is effective until that authority is revoked by the principal or by court order.  The document must contain language that clearly indicates the principal’s intent to create a health care power of attorney, be dated and signed by the principal, and notarized or witnessed in writing by at least one adult who affirms that the notary or witness was present at the time of execution of the health care power of attorney, and that the principal was of sound mind and free of duress at the time of execution of the health care power of attorney. A notary or witness shall not be a designated agent under the health care power of attorney, or a person directly involved with the provision of health care to the principal at the time the health care power of attorney is executed.  If the health care power of attorney is witnessed by only one person, that person may not be related to the principal by blood, marriage, or adoption, and may not be entitled to any part of the principal’s estate by will or operation of law at the time the health care power of attorney is executed.

Pursuant to Arizona law, the person appointed as the agent is not responsible for paying the principal’s health care costs unless the agent is otherwise required to do so.  The agent must make health care decisions in accordance with the principal’s wishes, and if the health care power of attorney does not provide sufficient information to determine what the principal would want in any given circumstance, the agent is required to make decisions based on the principal’s values.  If named as a health care agent, it’s important to have a conversation with the person executing the health care power of attorney to gain a good understanding of how they would make their own health care decisions if they were able to do so.  An agent who makes good faith health care decisions for a patient is not subject to civil or criminal liability for those decisions.

A person’s health care provider is required to comply with the health care decisions made by that person’s agent unless the health care provider knows that those decisions are inconsistent with the patient’s health care directive, or the health care provider has transferred care to another health care provider.  A health care provider who makes good faith health care decisions in reliance on the provisions of an apparently genuine health care power of attorney or the direction of their patient’s agent is immune from criminal and civil liability.  A health care provider who refuses to comply with a decision or a directive must promptly make known their unwillingness and promptly transfer the responsibility for the patient’s care to a health care provider who is willing to act in accordance with the agent’s direction.

A health care power of attorney may be revoked.

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