Do I Really Need a Health Care Power of Attorney?

By Lisa Bayer, J.D., CCM

Recently, I was talking to a friend of mine who told me that her mom’s attorney is pushing her mom to appoint a health care power of attorney as she was just diagnosed with mild or “early stage” Alzheimer’s Disease. My friend wanted to know if the attorney was trying to drum up unnecessary business for himself because her dad is alive and well and perfectly capable of taking care of her mom.

I explained to my friend that the attorney was right to encourage her mom to prepare a legal document appointing someone to act on her behalf if and when she is unable to speak for herself. This representative is often called a “health care proxy” or a “health care power of attorney.”

Using her mom’s health care directive (also known as a “living will”) as a road map, this person, in this case her dad, will know what her mom would want if she could speak for herself and will have the authority to make decisions consistent with her wishes. I explained that it is also an opportunity for her mom to appoint surrogate decision makers in case her dad is unable or unwilling to act. Since my friend is an only child and lives close by it might make sense for her mom to name her as well.

Being related does not give someone the right to make health care decisions for another adult—only the health care power of attorney document accomplishes this. In my elder care consulting practice, I have seen difficult cases that have literally torn families apart where there is no health care proxy because the alternative is to go to court to petition for guardianship. The guardianship process is time consuming, financially costly and emotionally taxing. And if the guardianship is contested, this quantifiably increases the time and expense of the litigation.

Given my friend’s mom’s diagnosis, I also explained that there could come a time—and none of us has a crystal ball—where her mom would be unable to appreciate and execute the documents. Her attorney is under a legal and ethical obligation to make sure that her mom has the capacity to sign them.

I told my friend that my suggestion would be to follow her attorney’s advice and have the documents prepared as soon as possible.