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When Does a Medical Power of Attorney Go into Effect?

by Viki Kind, End-of-Life Expert
March 24, 2016

Question: At what point does a medical power of attorney go into effect?

Answer: Let’s begin by talking about the different language used so we can make sure we are all talking about the same thing. The medical power of attorney is different from a financial power of attorney.  People need both. The medical power of attorney is the form you use to write down who you choose to have the power to make medical decisions for you when you are too sick to speak for yourself. The financial power of attorney is the form you use to choose the person who will have the power to pay your bills and handle your money. They can be the same person or you can choose two different people. For instance, I am my brother’s medical power of attorney and my other brother is his financial power of attorney. (I am the medical expert in our family and my other brother is the financial expert.  It is important to pick the person who will be good at doing the job)

I also want to clarify that some states call this person the durable power of attorney, the agent, the proxy and lots of other names. But the jobs are the same. You are supposed to act according to the person’s instructions and in their best interest, not your own. 

Now to answer your question. The medical power of attorney goes into effect when you are too sick to speak for yourself.  It might be used when you are on so many pain medications that you aren’t awake enough to speak for yourself. Or it might be used because you have a cognitive impairment such as Alzheimer’s or a brain injury. But it isn’t just that you have a certain disease.  You have to have lost a certain amount of mental capacity/competency.  (Again, each state uses a different legal word – competency or capacity.) 

In medicine, we usually call this ability to think well enough, “decisional capacity.” Do you have enough brain power to make decisions? Are you able to understand your treatment choices including the option to do nothing? Can you evaluate whether or not you would want the treatment?  And are you able to communicate your decision to the doctor? When a doctor says that you lack decisional capacity, your medical power of attorney will go into effect and the doctor will now talk to the person you chose to make your health decisions. 

Your inability to make your own health decisions might only be for a short period of time while you recover from an illness or injury, or it might be forever because your brain is so damaged, it will not recover. If your brain does recover, the doctor will start talking to you and not your medical power of attorney.

Viki Kind is a clinical bioethicist, professional speaker, and hospice volunteer. Her book, The Caregiver’s Path to Compassionate Decision Making: Making Choices For Those Who Can't,” guides families and professionals through the difficult process of advocating for those who can no longer speak for themselves. She has recently launched a DVD that includes a template to create a quality-of-life statement.

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