Choosing a Medical Power Of Attorney:
4 Pitfalls to Avoid

Your Medical Power of Attorney (POA) is someone you choose to make medical decisions for you in the event you are too critically ill to make your own decisions. Your POA is formally and legally named in a written advance directive.

Depending on your state, your medical POA may also be called a:

Medical Decision Maker
Medical/Healthcare Proxy
Medical/Healthcare Surrogate
Healthcare Agent
Healthcare Representative
Health Care Attorney-in-Fact
Patient Advocate

For most people, your POA is a spouse or an adult child. However, it can be a friend, a more distant relative, or, you can equally name multiple people who will need to decide together. Your POA can be anyone over the age of 18, but there are some state specific restrictions. For example, in some states, it cannot be your physician, someone you are currently divorcing, or your attorney.

If you have not named a medical POA, by default, it will be your spouse in most states. If you do not have a spouse, it will equally be any adult children. If it is not apparent whom your POA should be, a court may need to decide or appoint a guardian to your case. This is a court-appointed individual who will make medical decisions for you.

4 Pitfalls to Avoid when Selecting a Medical POA:

1. You are estranged from your spouse

If you are estranged from your spouse, it is key that you name an alternative medical POA. Otherwise, your spouse is still legally able to make decisions for you. Many people erroneously think that since this person is distant from them emotionally, they would not have any say medically. It is true that, likely, doctors will still listen to the input from adult children (or other credible parties involved) and escalate any issues as needed to an ethics committee, but you do not want to leave this to chance. If you are not comfortable with an estranged spouse making your medical decisions, you need to name someone else in writing via an advance directive.

2. You have different relationships with your adult children

If you have one child you would prefer to be your medical POA, it is important you put that in writing; otherwise, all your children would have equal say if you do not have a spouse or your spouse is not available/medically well enough to make your decisions.

There are many scenarios where people prefer to have one child over another make their medical decisions that maybe they do not consider in advance. Perhaps you have a child who is in the medical field, but another child in a different field, and you would prefer the medical child to make your medical decisions. Or, perhaps you have a strained relationship with one child and you would prefer that child not be involved in your care. Perhaps your children have complicated relationships with each other and them agreeing on your medical care would further strain this relationship.

Sometimes, it is as simple one child lives further away and, therefore, is not as involved in your day-to-day medical care. When the far-away child arrives at the eleventh hour in your medical decision making, it can cause strife between them, even if you have a wonderful relationship with both. Read more about this “Daughter from California Phenomenon.”

Whatever the situation, if you would prefer to have one child be your only medical decision maker, you should put this in writing in your advance directive. Otherwise, they have equal decision making ability.

3. You choose someone who is in worse health than you

Often, you create an advance directive when you are still in relatively good health. With time (perhaps years or decades), your assigned POA ages and may no longer be able to competently complete their duties at the time that your health fails and their input is needed. If your POA (usually your spouse) is older or has complicated medical problems, it is necessary to name a back up or two in the event they are not healthy enough at the time to make your decisions.

4. You choose someone not easily accessible

Medical emergencies are usually unexpected. They can occur anytime including in the middle of the night, over holidays, or during poor weather. If you are not able to make your own medical decisions, physicians will try to reach your closest families members as soon as possible to guide them in the care you would want. Therefore, you want to choose a POA who is available to come to the hospital without much notice, or who, at the minimum, would be available to contact from doctors. Someone many states away, in a different time zone, or even abroad is often not a great choice as your primary POA.

Other Considerations in Selecting a POA

Once you have decided upon a POA, confirm they are comfortable with this great responsibility. Of course, you should discuss your medical wishes with them. It is not productive to have a POA who is not informed they are your POA or has no idea what kind of medical care you would want. If this is the case, when physicians reach out to them, they will be unprepared to answer the questions and will likely feel extremely conflicted about any recommendations they make on your behalf. Worse, they may not be willing to participate in your care.

Once you have completed your advance directive and a MOLST form (if you have one), provide copies (hard and electronic) to your POA. If you ever update these forms, be sure to provide them with any updated copies.