August 16, 2018

Giving Someone a Power of Attorney for Your Healthcare (multi-state guide and form)

“Bare Bones” Health Care Power of Attorney Is Valid in All but Five States

The Commission on Law and Aging has released a booklet offering a simple durable power of attorney for health care, designed to meet the legal requirements in nearly all states.

Giving Someone a Power of Attorney for Your Health Care: A Guide with an Easy-to-Use, Multi-State Form for All Adults can be described as “bare bones” because it does not provide specific instructions about medical treatments, like most standardized health care advance directive forms do. Instead, it provides solely for the appointment of a health care agent with broad health-care decision-making authority. Development of the booklet and form was made possible by grants from the Archstone Foundation and the California HealthCare Foundation.

Research over the last 30 years has shown that instructions about end-of-life treatment choices, provided by relatively healthy adults long before they face serious illness, are often dated and too vague to be of guidance when tough decisions need to be made.

The new booklet and form focuses on the single most important legal task—that of appointing a health care agent.

The guidance one gives an agent more effectively comes from having focused conversations with the agent and loved ones over time. There are a growing number of guides available on how to have those discussions and clarify one’s values and treatment goals, which, in fact, will change over time as one’s health and level of functioning change. The ABA Commission provides a resource list of many of those guides.

Clarifying one’s values and goals of treatment so that a health care agent, as well as health care providers, will implement them when the time comes is not a legal task, at heart—it is a communication exercise. While most states provide standardized legal forms for expressing certain medical treatment wishes, those forms are merely aids constructed by legislatures. In addition, the standardized language and check-off options provided in many of these forms do not always serve communication goals well.

Unfortunately, the conventional wisdom in some states says that the public should always use the official form that has been published in state law or authorized by the state bar or state medical society. Such official forms are convenient to have available, but they often become mis-perceived as a de-facto.

A unique feature of the new form is that it complies with state legal requirements for a valid power of attorney for health care in almost every state. Only five states have laws so inflexible and cumbersome that the bare bones power will not work: Indiana, New Hampshire, Ohio, Texas, and Wisconsin.

Accomplishing near universality required a major research effort and the assistance of legal counsel from around the country. Users of the form will notice that the instructions for who can serve as one’s health care agent and who must witness the document are fairly detailed and extensive. That is because state law requirements vary considerably, so combining all those requirements into one form results in a longer list of requirements than exist in any one state. The positive result is that users almost everywhere can use a single valid form. Only one other nationally distributed health care advance directive has sought to meet the legal requirements in all or most states. The Five Wishes advance directive, produced by Aging with Dignity,  is constructed to provide extensive guidance on a wide range of end-of-life health and personal matters.

The two forms represent two ends of the continuum of advance directives forms, from “bare bones” to detailed instructions.

Having these kinds of contrasting forms available is one of the goals of the ABA Commission. Every adult approaches health care decision-making differently, so having multiple options is vitally important.

Another advantage of the new form is that a larger audience may be amendable to advance care planning. Many adults have been deterred from health decisions planning because of the legalese that is confusing and intimidating. The new form distills the legal components down to one task —the appointment of a proxy. Moreover, many adults, especially younger adults, have little or no reluctance to name a health care agent, but are not at all ready to engage in end-of-life reflection. These adults may find the new form to be just the right first step to the life-long process of health care advance planning.

Download the Guide and Form

The "Forbidding Five"

No national advance directive is valid in New Hampshire, Ohio, Texas, or Wisconsin unless it includes a detailed mandatory disclosure statement, unique to each of the states, attached to the form. New Hampshire, additionally, requires the user to sign an acknowledgment of receipt of the disclosure statement.

These statements summarize the nature and effect of the form, the rights and obligations of the parties, and the contents of the form. To be in compliance, any national form would have to instruct users to print out, attach, and, in one state, sign and date the state disclosure form.

But even then, the disclosures describe some provisions in the respective state statutory forms that differ from the provisions of the universal form. The resulting contradiction and confusion would undermine the usefulness and acceptance of the universal form and, thus, prevents these states from benefiting from it.

In Indiana, state law prescribes specific language that must be used to empower a health care agent to consent to or refuse treatments on behalf of someone else. That language does not meet the requirements in every other state and, likewise, prevents from benefitting from a national form.

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