Are Health Care Powers Of Attorney Legally Valid In Every State?

The simple answer to that question is probably yes. No law or court has invalidated the concept of the Health Care Power of Attorney, and an increasing number of statutes and court decisions support it Yet, some uncertainty may exist in your state, primarily because of the lack of public experience with Health Care Powers of Attorney.

To understand the situation, a little history is required. Health Care Powers of Attorney are a variation of the ordinary "power of attorney." Ordinary powers of attorney allow an individual (the "principal") to give legal authority to another (the "agent" or "attorney-in-fact") to handle business or property transactions for the principal. Originally, these powers of attorney for property were effective only as long as the principal was competent. They could not be used to manage the affairs of persons who were mentally incompetent. During the last 20 years or so, every state and the District of Columbia have enacted durable power of attorney statutes, which allow a power of attorney for property to remain in effect even if the person later becomes mentally incapacitated. This "durability" element is very helpful in health care decision-making for incapacitated persons. Yet, only recently has the idea of a durable power of attorney for health care emerged. The combination of advancing medical technology, an aging population, and growing concern about medical decisions that serve only to prolong the dying process have all triggered this emergence, just as they led to the emergence of Living Wills. Most, but not all, legal scholars believe that existing durable power of attorney statutes are broad enough in principle to include health care decision- making powers within their scope. But, to eliminate uncertainty and to build in protections for patients, an increasing number of states are enacting statutes that clearly recognize Health Care Powers of Attorney, and many of these states provide special forms and procedures for creating the document.

Even if the legal status of the Health Care Power of Attorney is uncertain in your state, it is still important to consider writing one, because it carries substantial "moral weight." Your written directive cannot easily be ignored by family and health care providers. And, if the courts become involved, they usually try to follow the values and preferences expressed by the patient. A Health Care Power of Attorney may be the most convincing evidence of your wishes you can create.

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