Article Series

Medical Powers of Attorney

Article submitted by Marco D. Chayet of Chayet & Danzo, LLC, and the past Chair of the Elder Law Section of the Colorado Bar Association. Marco Chayet can be reached at 303-355-8500 and through the firm’s websites.
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Colorado - A medical power of attorney, sometimes known as a Durable Medical Power of Attorney or a Power of Attorney for Health Care, is a legal document in which you appoint an “agent” to be able to speak for you on the subject of medical treatment, in the event you are unable to speak for yourself. Unlike the living will, the medical power of attorney’s use is not limited to terminal illness or persistent vegetative state situations. The agent under the medical power of attorney is authorized to make any medical decision that you could make for yourself, with certain limitations, if you were mentally competent to do so. Nothing in the medical power of attorney permits the agent to direct your medical treatment while you are still mentally capable of making your own medical decisions.

The medical power of attorney is called “durable” because it contains language within the document which directs that its authority should continue to be effective even in the event that you become legally or medically incompetent. Medical powers of attorney can be as simple or as sophisticated as you and your attorney wish to make them. However, at a minimum, the medical power of attorney needs to appoint an adult (defined in Colorado as a person 18 years of age or older), as your agent under the medical power of attorney. It is a good idea to include in the medical power of attorney an alternate or successor agent, in the event your primary named agent is deceased, unwilling or otherwise unable to make medical decisions for you. It is not a good idea, and the medical community discourages, appointing co-agents, that is, two or more people who must act together to make medical decisions. The medical professionals much prefer to have one person with the authority to act.

Any properly written medical power of attorney today should include in it language sufficient to satisfy the requirements of the Health Insurance Portability and Accountability Act of 1996, commonly known as “HIPAA” (pronounced “hip-ah”). This Act is intended to ensure the privacy of your medical information and to ensure that you have access to any medical information that medical professionals keep concerning you. Your medical power of attorney should include language which permits your agent to be considered a “personal representative” (the HIPAA term for an agent) for the purpose of discussing your medical records, conditions and possible courses of medical treatment with the medical professionals. By including HIPAA language in the appointment of an agent under medical power of attorney, your agent can discuss your medical issues with the medical professionals, can make medical decisions when you are unable to do so, and can do such things as pick up medications for you at a pharmacy.

In addition to the basic elements of a medical power of attorney, you should consider adding language to your medical power of attorney to permit you agent to complete admission applications to medical facilities, assisted living facilities and nursing homes; make application for Medicare, Medicaid and other medical insurance forms; and nominate and appointment of guardian.

Instead of executing a living will, a principal can give his/her agent authority to make end of life decisions in a medical power of attorney.

Like the living will, you should provide a copy of your medical power of attorney to any medical professionals who keep medical records on you and provide a copy to any hospital, assisted living facility, nursing home or other medical facility upon admission. You should keep the original of the medical power of attorney, or provide it to your agent. Additionally, as with the living will, it is an excellent idea to discuss your medical issues, your feelings and beliefs concerning medical treatment and other related issues with your agent under the medical power of attorney and with your loved ones. It is the purpose of appointing an agent under the medical power of attorney that your agent should follow your wishes and intent as to medical treatment. They can only do so if they know what you want.

You do not need to execute a new medical power of attorney in the event you travel to or move to another state, unless you wish to make changes to your medical power of attorney. To be safe, and to ensure your medical power of attorney meets the execution requirements of each state, you should have your medical power of attorney witnessed by two individuals unrelated to you, who are not in any way responsible for your medical care and medical bills, and have the medical power of attorney notarized.

Finally, authority to act under a medical power of attorney ceases upon the death of the principal, that is, the person who executed the medical power of attorney appointing the agent to act.

More about the Author:

Chayet & Danzo, LLC located in Denver, Colorado is a client-focused elder law and estate planning firm serving all of Colorado. The attorneys provide the highest quality legal services and professionalism, while representing clients in a cost-effective manner. Meeting the needs of our elder law clients depends on moving beyond conventional legal work to offering practical assistance in planning, counseling, educating, and advocating for the senior or disabled client and their families. Call Toll Free 1-866-873-6596.

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© 2012, All Rights Reserved by Marco Chayet, Chayet & Danzo, LLC.

Posted August 2012 on