Your Agent can make health care decisions for you if you are incapacitated

Durable Health Care Powers of Attorney are very important documents. They come in 2 flavors:  they kick in immediately when you sign them or they kick in only if you are incapacitated. Either way, Durable Health Care Powers of Attorney name someone, called an agent, to make medical decisions for you. This is usually all decisions, including pulling the plug.

Durable Health Care Powers of Attorney that kick in immediately are generally used by older folks. Let’s say Mary is 80 and not doing super terrific healthwise. Her daughter, Sarah, goes with Mary to all of her doctors’ appointments. Mary signs a Durable Health Care Power of Attorney allowing Sarah to make health care decisions for her immediately. Given this situation, that document will help Sarah handle medical emergencies more efficiently.

Most folks, however, have a Durable Health Care Power of Attorney that kicks in when they are mentally out of it. The test for “mentally out of it” is that your agent and at least one (1) doctor who has or is treating you, conclude that you lack sufficient capacity, for any reason, to make or communicate decisions about your health care.

Most Durable Health Care Powers of Attorney are durable. “Durable” means that if you are mentally competent when you sign the document, and later you are not, your incapacity does not invalidate the Power of Attorney.

One of the most important jobs that a Durable Health Care Power of Attorney does is waive the HIPAA privacy laws. When you go to the doctor, you always have to sign that you have received the HIPAA privacy laws. HIPAA basically says that your medical information is private. In order to let a health care agent in a Durable Health Care Power of Attorney get access to your medical information, you need to waive the privacy laws. A Durable Health Care Power of Attorney says in it that you waive the privacy laws. This waiver makes things much, much easier for your named agent.

What exactly can your health care agent do?

  • Discuss all aspects of your medical care with professionals.
  • Consent to, or refuse consent to, health care treatment.
  • Manage disputes between loved ones re: your medical care.
  • Determine if you can still live at home.
  • Authorize the use of your Living Will to “pull the plug”.


Who makes for a good health care agent? Someone who:

  1. Knows your views on health issues—like do you prefer traditional vs. naturopathic treatments, etc.
  2. Keeps a cool head in a crisis.
  3. Is good at asking questions and collecting information before making a decision.

Your health care agent does not need to be someone who:

  1. Lives locally, although that might help.
  2. Is in the medical field, although that might help.
  3. Is related or not related to you, which cuts both ways.

If you want to spread the agent job responsibilities, you can name two people to serve together as agents. You can choose whether those 2 people must make all decisions jointly or if they can make decisions independently of one another.

Serving as an agent is a major job. You can have your agent paid an hourly fee for handling this job. You can also reimburse the agent for all out of pocket expenses incurred because your agent is taking care of your medical issues. These expenses can include lost wages, rental car, hotel, airfare, gas for the car, etc.

One of the ways you can help your health care agent do his/her job better is to have your medical records organized. This not only helps your agent, but is actually a huge help for yourself as well.

Here is a 5 step plan:

  1. Make a list of the doctors you typically see yearly—i.e. primary care physician, gynecologist, etc.
  2. Make a list of doctors you see in intervals, i.e. doctor for colonoscopy, where you get your mammograms.
  3. Make a list of the tests you have done routinely—blood work, mammogram, prostate screening, PAP smear.
  4. Contact each of your doctors and ask for your medical records. Summaries of appointments may be all you need.
  5. Put together your current health information:
    • Height and weight
    • Emergency contact info
    • Whether you have a pacemaker, stent, serious allergic reactions
    • Chronic health issues
    • List of meds and supplements you take along with dosages and reasons for taking
    • Allergies to meds, foods, environment
    • Put together your own medical history.

Store this information somewhere where your health care agent can easily access it.

If you don’t have a Durable Health Care Power of Attorney, your loved ones will need to file papers with the court asking to be appointed as guardians, attend a court hearing, meet with a court appointed social worker, and file an annual report. Not only is guardianship under these circumstances kind of a hassle, since it could be so easily avoided, but it may be that the person who wants to make medical decisions for you isn’t whom you would have chosen.

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