Ask the Probate Judge—Health Care Powers of Attorney
Rudd, appeared October 9, 2003, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: You discussed financial powers of attorney in a recent column. Can't someone also use a power of attorney for health care decisions?
Yes, more people are recognizing the importance of planning ahead for health care decisions. A health care power of attorney and instructions about your health care wishes should help your family follow your wishes regarding medical treatment and care. An individual who has sufficient mental capacity can either create a separate power of attorney for health care matters or combine financial and health care powers within a single document.
New Mexico has two different ways to create a health care power of attorney. You (the principal) may: (1) use the do-it-yourself New Mexico power of attorney form, initialing the health care powers, as well as whatever financial powers you wish to give your agent, and signing the form in the presence of a notary public; or (2) create a separate power of attorney that contains only health care powers.
In 1995 the New Mexico legislature passed the Uniform Health-Care Decisions Act (UHCDA). UHCDA also contains provisions for health care powers of attorney. UHCDA only requires a health care power of attorney to be "in writing and signed by the principal."
Although UHCDA does not require the health care power of attorney to be notarized or witnessed, having two witnesses sign is recommended. Using witnesses may prevent fraud or forgery, make the document harder to challenge, and help insure that another state will honor the document.
A competent individual may revoke a health care power of attorney either by a signed writing or by personally informing the health care provider. A sample optional form is included in UHCDA. If you have already signed a durable health care power of attorney, right to die statement, and/or other advance health care directive, you do not need a new form.
The agent appointed in the power of attorney should make health care decisions in accordance with the principal's instructions and other wishes, if known. Otherwise, the agent should make health care decisions that are in the principal's best interest.
Health care providers may be caught in the middle if the agent directs one treatment and other family members seek a different treatment. Communication with family members and other decision-makers is essential. Let them know you have signed a health care power of attorney. Give your agent guidance about how to make decisions for you. Ask that they follow your wishes, not their own, in making health care decisions for you.
Also explore your doctor's opinions about discontinuing life support systems and other treatment. Make sure that your doctor understands your wishes and philosophies, and will honor your wishes. If you and your doctor disagree on quality of life issues, try to find a doctor whose views are more compatible with your own.