Advance Directives for Health Care

The standard power of attorney (POA) is a written agreement authorizing a person (named an agent or attorney-in-fact) to sign documents and conduct transactions on behalf of the principal or maker who has delegated away that authority. The principal can delegate as much (e.g., a general delegation) or as little (e.g., specifically delineating what types of choices the agent may and may not make) power as desired. The principal may end or revoke the arrangement at any time, as long as the principal remains mentally competent to do so.

The POA in its traditional form does not work well as a method for dealing with medical decision-making authority for older persons on a voluntary, prospective basis. The ordinary POA ends automatically when the principal who created it dies or becomes mentally incompetent. The theory underlying this is that, because a deceased or incompetent person no longer has the ability to revoke the POA, the law should exercise that right immediately for the principal. Thus, an older person who establishes a standard POA to help in managing medical affairs would be cut off from such assistance at exactly the time when assistance is needed the most.

In an effort to get around this problem, every state legislature has enacted legislation authorizing citizens to create (or execute) a durable power of attorney (DPOA). In contrast to the ordinary POA, the effect of a DPOA may endure or continue beyond the principal's later incapacity as long as that is what the principal intended in executing the DPOA.

To remove any ambiguity about the applicability of the DPOA concept to the area of medical decision making (including choices about life-sustaining medical treatments such as mechanical ventilators, dialysis, antibiotics, and cardiopulmonary resuscitation), almost every state has passed legislation that explicitly authorizes the use of the DPOA in the medical context. Some statutes use terminology such as health care representative, health care agent, or health care proxy. In addition, a number of states use a comprehensive advance directive statute to expressly authorize competent adults to execute both proxy and instruction directives; other states have separate statutes for each type of advance directive. Under most state laws, the health care providers for the principal who has executed a DPOA are disqualified from serving as agents under the DPOA. That statutory disqualification is intended to help avoid even the appearance, let alone the reality, of a conflict of interest when decisions have to be made about medical treatment for an incompetent patient.

Proxy directives provide the advantage, for both patients and their health care providers, of legally empowering a living, breathing advocate for the patient who can engage in discussions and decisions regarding medical treatment based on the most current information and other considerations. The proxy directive is irrelevant, however, for older adults who do not have available someone else whom they can trust to make future medical decisions for them.