Living Will & Medical Power of Attorney FAQs

Q: What is a Durable Power of Attorney for Health Care?

The law allows you to appoint someone you trust — for example, a family member or close friend — to decide medical treatment options if you lose the ability to decide for yourself. You can do this by using a “Durable Power of Attorney for Health Care” or Health Care Proxy where you designate a person to make health care decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

Q: What is a Living Will?

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. Arizona has instituted living will laws to protect a patient’s right to refuse medical treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

Q: Should I Have a “DNR” in Addition to My Living Will?

When someone nears the end of life – from either a specific terminal illness or overall decline – there may be some difficult decisions to make regarding medical interventions. One of these decisions is whether you want to be revived, through the administering of CPR (cardiopulmonary resuscitation), if you stop breathing or your heart stops beating.

 

If you don’t want to be resuscitated, there are steps you can take to help formalize that wish in a legally recognized medical order, called a Do Not Resuscitate (DNR) order. DNR orders are typically for someone old and frail or seriously ill. Many people nearing the end of life have simply had enough of battling with their deteriorating condition, and they’re willing to let go of life when their body tells them it’s time. In that case, a DNR order may be appropriate.

 

If both doctor and patient agree that a DNR order is the right decision for the patient, the doctor enters the order into the patient’s medical chart. As long as the patient is in the hospital, that DNR order in the chart must be respected by all medical personnel. If the patient is not in the hospital, an out-of-hospital DNR order form should be completed by the patient and the doctor. This is true even if the patient had a DNR while in the hospital.

Q: What is a HIPAA Authorization?

Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases.  In addition to the above documents, you should also sign a HIPAA Authorization Form that allows the release of medical information to your Agents, your Successor Trustees, your family and other people whom you designate.

Q: What is a Financial Durable Power of Attorney?

A financial durable power of attorney allows someone you choose to carry on your financial (not medical) affairs if you become disabled.  Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you when you are disabled.  This guardianship process is time-consuming, expensive (often costing thousands of dollars) and emotionally draining.

 

There are generally two types of durable powers of attorney:  a “present” durable power of attorney in which the power is immediately transferred to your agent; and a “springing” or future durable power of attorney that only comes into effect upon your disability as determined by your doctor.  When you appoint another individual to make financial decisions on your behalf, that individual is called an “attorney in fact.”  Anyone can be designated, but most people appoint a spouse or trusted family member or friend.

Q: Who can establish a Financial Durable Power of Attorney?

Generally, any individual over the age of majority and who is legally competent can establish a power of attorney.

Q: Who may act as an agent under a Financial Durable Power of Attorney?

In general, an agent (or “attorney in fact”) may be anyone who is legally competent and over the age of majority.  Most individuals select a close family member such as a spouse, sibling or adult child, but any person such as a friend or a professional with outstanding reputation for honesty would be ideal.  You may appoint multiple agents to serve either simultaneously or separately.  Appointing more than one agent to serve simultaneously can be problematic because if any one of the agents are unavailable to sign, action may be delayed.  Confusion and disagreement between simultaneous agents can be another cause of inaction.  Therefore, it is usually more prudent to appoint one individual as the primary agent and nominate additional individuals to serve as alternate agents if your first choice is unwilling or unable to serve.