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Durable Power of Attorney for Healthcare Decisions

What is a Durable Power of Attorney for Health Care Decisions and do I need one?

*This article is valid as of September 14, 2017. It is intended for general information only . It is not legal advice for your particular matter. If you have questions, call an experienced attorney.

Generally, if set up correctly, a Durable Power of Attorney for healthcare decisions (POA) gives someone else (your agent) the authority to act on your behalf to to carry out the choices you have made for your healthcare if you are unable to do so.

This document allows your agent to do the following:

  1. To make health care decisions for me before or after my death, including consent, refusal of consent or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose or treat a physical or mental condition;
  2. To request, review and receive any information, verbal or written, regarding my physical or mental health, including, without limitation, medical and hospital records; and
  3. To execute on my behalf any releases or other documents that maybe required to obtain medical care and/or medical and hospital records.

This document generally does NOT allow your agent to make the following decisions:

  1. Commitment to or placement in a mental health treatment facility, convulsive treatment, psychosurgery, sterilization or abortion.
  2. Any other limitations you wish to place on his or her ability to act.

Facts:

  1. If your wishes are not known, then your agent will act in your best interest.
  2. This Power of Attorney can be limited if you choose, both in relation to what your agent can do and for how long you want him or her to act on your behalf.
  3. You should be prepared to name an alternative person in case the first person is unavailable.
  4. You can revoke this Power of Attorney at any time.
  5. The latest Power of Attorney revokes all prior Powers of Attorney.
  6. A Durable Power of Attorney for Healthcare is NOT the same as a Durable Power of Attorney for Financial Decisions.

What types of things should I consider when drafting my POA?

You agent is only permitted to make decision that are consistent with what he or she knows you want. You should consider the following:

  1. Do you want your life be prolonged to the greatest extent possible, without regard to your condition, the chances for recovery or longterm survival, or the cost of the procedures?
  2. If you are in a coma which my doctors have reasonably concluded is irreversible, do you desire that life-sustaining or prolonging treatments be used?
  3. If I have an incurable or terminal condition or illness and there is no reasonable hope of long-term recovery or survival, do you desire that life sustaining or prolonging treatments be used?
  4. Withholding or withdrawal of artificial nutrition and hydration may result in death by starvation or dehydration. Do you want to receive or continue receiving artificial nutrition and hydration by way of the gastrointestinal tract after all other treatment is withheld?
  5. Do you desire treatment to be provided and/or continued if the burdens of the treatment outweigh the expected benefits? Do you want your agent to consider the relief of suffering, the preservation or restoration of functioning, and the quality as well as the extent of the possible extension of my life?

When should I have this discussion and execute the POA?

Ideally, you will do this before you are ill. It is far easier to discuss these matters when you are young and healthy and temporary illness, terminal illness, and/or dying are the farthest things from your mind.

How do I select an agent?

Select someone trustworthy. If you have a religious preference, you may want your agent to be of the same faith as you. You also want to select someone that is in good health care someone who is likely to live longer than you. If you select someone close to your age, make sure you alternative choice is much younger.

You also want to make sure your agent is willing to accept this responsibility and will act in accordance with your wishes.

Do I need an attorney to draft a Power of Attorney?

You do not need an attorney to draft a POA, but you should if you want your specific desires to be met. Boilerplate language should be avoided as much as possible in drafting contracts, and your POA should be specifically tailored to meet your needs and wishes. An attorney is also valuable in drafting the POA because it gives you the opportunity and provides a setting to discuss your care and wishes with your agent in front of a neutral third party.

What is the difference between a Power of Attorney and a Living Will?

A POA informs others in advance how you want to manage your healthcare if you are unable to communicate your desires. A Living Will directs whether you want to start or continue lifesaving treatment, but it only takes effect when you are no longer able to communicate with healthcare providers and are determined by the doctor to have an incurable, irreversible condition.

Further, if you do not have a POA, a spouse or other person is not automatically given the right to make decisions for you. Whomever wants this responsibility will need to file formal paperwork with the court to be appointed guardian. This is substantially more costly than having the POA form drafted.

On the other if you do not have a Living Will, the decision to withhold or consent to lifesaving treatment is given to the following persons in the following order of preference under NRS 449.626:

  1. The spouse of the patient;
  2. An adult child of the patient or, if there is more than one adult child, a majority of the adult children who are reasonably available for consultation;
  3. The parents of the patient;
  4. An adult sibling of the patient or, if there is more than one adult sibling, a majority of the adult siblings who are reasonably available for consultation; or
  5. The nearest other adult relative of the patient by blood or adoption who is reasonably available for consultation.

Where do I keep my POA once it's completed?

You should give a copy to your doctor, your agent, and you alternate agent. You may also file a copy with the Nevada Secretary of State. Information for filing with the Secretary of State can be found here. http://nvsos.gov/sos/online-services/living-will-lockbox

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